As one of the unprotected areas of speech, the regulations pertaining to obscene material have long been subject to intense scrutiny. However, while obscenity has been unprotected and regulated in the form of the Miller Test, pornography has remained mostly unregulated. While regular pornography remains a protected form of expression under the First Amendment unless in violation with the Miller obscenity test, child pornography is an unprotected form of speech under the First Amendment[1]. The Supreme Court first created child pornography's unprotected status in the 1982 case of New York v. Ferber [2]. However, with the passage of the Child Pornography Prevention Act (CPPA) of 1996, Congress waded into a murky issue: that of virtual child pornography.
A definition given by the Ohio Supreme Court says virtual child pornography is "pornography that depicts children, but through images that are either computer-generated or that are created using only adults." CPPA attempted to expand the child pornography category to include both computer-generated depictions of children, and depictions of what appeared to be minors. Even from the description of the CPPA, we can already feel a sense of vagueness in the type of content that this would encompass. How should a computer image of a person be judged as a child or not? What does it mean to "look underage"?
Therefore, we have the first Supreme Court case dealing with virtual child pornography: Ashcroft v. Free Speech Coalition (2002). The FSC is a group representing the adult entertainment industry, and they filed the lawsuit against the CPPA. The Supreme Court ruled on behalf of the FSC, stating that the overbroad and vague language would seem to prohibit the adaptation of famous works such as "Romeo and Juliet", or of films such as "American Beauty" [3]. In addition, the Supreme Court states that virtual child porn does not directly relate to the abuse of children, which is the main purpose of categorizing child pornography as an unprotected form of speech. It does not seem to consider the Circuit Court's argument that, by making virtual child porn a protected form of expression, there will be indirect harm done to children through proliferating the market demand for child pornography.
However, the Supreme Court's stance on the issue of virtual child pornography seems to be extremely confusing. In 2003, Congress passed the PROTECT act, in which was the provision that, while the possession of virtual child pornography is not illegal, but any attempts to distribute material that "is intended to cause another to believe that the material contains depicted [child pornography]" is illegal [4]. In the 2008 case of United States v. Williams, where defendant Williams was trying to challenge the constitutionality of the PROTECT act provisions as being overbroad and vague, the Supreme Court ruled in favor of the legislation. The Supreme Court's argument was basically that, as technology becomes more advanced and the lines between virtual and real child pornography becomes blurred, repeated transmissions of picture files over the internet will make it nearly impossible to determine whether the image was real or virtual, so therefore any attempt to pass pictures as real must be treated as if the pictures were real [5].
Personally, I do not really see how these rulings are compatible with each other. The government obviously has a vested interest in preventing the abuse of children through child pornography, which is why they have labeled it an unprotected area of speech through the neoliberal ruling on Ferber. In my opinion, the Ashcroft ruling was libertarian because it ruled in favor of generally applicable and narrowly tailored regulations, while minimizing the role of government in categorizing virtual pornography into virtual adult and virtual child porn. However, what the government seems to have forgotten is precisely the issue that arose in the Williams case: how to determine between virtual and real pornography? This issue seems to have no answer, especially as picture and video editing software becomes more adept at creating virtualized versions of people. The Court's response to this seems to be a neoliberal ruling on what people perceive child pornography to be, which seems to defeat the purpose of the previous Ashcroft ruling. An additional point of irony seems to be what Justice Scalia says at the end of the Williams opinion, "whether someone held a belief or had an intent is a true-or-false determination, not a subjective judgment". If the Court had believed, in Ashcroft, that they should not be given the power to evaluate physical images of "virtual" children, they seemed to have backpedaled twice as fast in Williams, to make sure that they can evaluate the MENTAL beliefs of a distributor of pornography.
In my opinion, this ridiculous clash of opinions merely show the problems that will continue to face the court in the area of virtual child porn. As I see it, there are really no solutions for the issue of child pornography. The courts can choose to continue ruling on an ad-hoc basis upon the regulation upon the contents of virtual child pornography (both physical and mental contents, as Williams seems to have set a precedence for), in which case the question is "how to determine the intentions and beliefs of the distributor and receiver". The courts could also decide to ban all representations of children in pornography, in which case the question becomes "How to determine what constitutes a 'child' in computer-generated or adult-simulated child pornography?" The two extremes would be if the courts were to declare all pornographic material as protected or unprotected, but either would trigger severe backlashes from the public as to make it unfeasible. Ultimately, as the government has a vested interest in stopping child pornography for the public interest, it will have to maintain an active neoliberal role in this regard. Libertarian rulings such as Ashcroft would only seem to run contrary to the government's goals, and ultimately serve no purpose at all.
-David
Bibliography
[1] http://en.wikipedia.org/wiki/Child_pornography_laws_in_the_United_States
[2] http://en.wikipedia.org/wiki/New_York_v._Ferber
[3] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-795
[4] http://www.firstamendmentcenter.org/speech/internet/topic.aspx?topic=virtual_childporn
[5] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-694
Tuesday, April 27, 2010
Tuesday, April 20, 2010
Affirmative Acceptance?
Every single year, millions of high-school seniors in the US apply to universities all across the US, in hopes of getting into a prestigious university, and having a brighter future ahead of them. For university officials, however, the difficulty of the task is often compounded by the higher institution's goals of affirmative action, or the encouragement of diversity in the education of students. Therein lies one of the big questions of the First Amendment: should universities base their admission decisions upon racial discrimination?
The first question to tackle is the issue of First Amendment jurisdiction. For every university admissions process, the mere process of evaluating the application based upon a set of criterion is already stepping into the realms of regulation based upon content. While nobody would argue that this process is necessary, the goal of affirmative action steps even farther. The fact that different racial information provided could lead to different admission decisions, shows that affirmative action counts as viewpoint regulation. For a viewpoint regulation to be considered constitutional, it must pass the test of Strict Scrutiny.
Strict Scrutiny:
1) There must be a compelling governmental interest furthered by the regulation
2) The regulation must be narrowly tailored, and acceptable in scope with regards to alternatives, vague, and overbroadness.
In 1978, the Supreme Court delivered a landmark ruling on the case of Regents of University of California vs. Bakke [1], ruling on the admissions process of universities. In this case, Bakke was an applicant to the Medical School of the University of California at Davis, where he was turned down despite having higher academic scores than "special applicants" from minority groups. In the 5-4 decision, the Supreme Court ruled that UC Davis cannot use race as the only factor in the admissions process, but that it is allowed to use race as one of the factors in the determination of the admission decisions of applicants [2]. This ruling is called a landmark ruling because governmental institutions of any kind have traditionally not been allowed to discriminate based upon race based on the Equal Protection Clause, applied through the 14th Amendment[3]. This Clause states that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws", and is viewed as prohibiting discrimination of minority groups by using the "All men are created equal" proposition.
With the Bakke ruling, many universities have begun to adopt affirmative action in their admissions process. In every case, affirmative action that universities can take needs to pass the strict scrutiny test, most importantly the narrowly-tailored requirement. In 2003, two Supreme Court rulings, both dealing with the University of Michigan, further defined the scope of affirmative action in universities. In Grutter v. Bollinger [4], where a UM Law School applicant named Grutter was denied admission despite having high academic achievements, the Supreme Court ruled in favor of the use of race as a factor in admissions. The Supreme Court again cited the compelling interest of "attaining a diverse student body" [5] in their decision to uphold the regulation. However, in Gratz v. Bollinger [6], the Supreme Court struck down the use of a points-based system of admission, which gave an absolute number of bonus points given to some racial minorities, as being "not narrowly tailored to achieve respondent's ... interest in diversity." [7]. These duo rulings present universities with a very tricky path to navigate in keeping their affirmative-action-based admissions process constitutional.
I would like to argue that, while the government does have a compelling interest in furthering diversity in educational and professional environments, they should consider taking a different approach to doing so. Firstly, from a neoliberal point of view, governments absolutely have the ability to choose to fund viewpoints that it finds compelling for the public interest. As the Supreme Court has already ruled on Rust v. Sullivan, government can regulate its "agents", which receive money from the government, to engage in government speech that it finds prudent. It is clear that, through the rulings of the many affirmative action cases in the past, the government has a vested interest in promoting diversity. Combining the rulings and the decision of Rust v. Sullivan, we can argue that first test of the strict scrutiny is valid.
However, I do not believe that using ad-hoc rules and regulations at the gates to universities is the correct method to solving the issue of promoting diversity in the educational atmosphere. From both Bakke and Gratz, the Supreme Court has already ruled on the unconstitutionality of two different concrete methods of quantifying racial contributions to the admissions process. In Bakke, UC Davis used a yearly quota system to determine the number of applicants from each race that it can take, in a segregated admissions process, while in Gratz, the UM Law School gave bonus points to minorities which helped lower the bar of admission for them. It is quite ironic that the Supreme Court has found specific affirmative action plans, such as UC Davis's quotas and UM Law School's points system, as being not narrowly-tailored enough, while finding vague assertions of "individuals with intriguingly different backgrounds" from UM's Undergraduate Admissions Policy [8], or "undertaking affirmative action" from UC Davis's Medical School [9], as being narrowly tailored enough.
With the indecisiveness that the Supreme Court has shown, I do not believe that anything other than a vague affirmative action pledge will ever be deemed acceptable. In my opinion, while affirmative action is important, the vague language in the admissions policies of universities should make it not narrowly-tailored and therefore unconstitutional. That the Supreme Court has ruled constitutional the vague language as stated above should show the extent it believes in the neoliberal compelling interest in fostering diversity.
Some states, such as Texas, have completely moved away from using content regulation of the applicant's race in the factor of determining affirmative action. When an Appeals Court ruled University of Texas's affirmative action admissions process as unconstitutional in 1996, minority enrollment plummeted. In 1998, Texas state lawmakers came up with a meritocratic method of ensuring minority enrollment into the state universities without discriminating based on race [10]. Looking at the fact that Texas's high schools remained largely segregated by race, lawmakers instituted an automatic admissions process for the top 10% of all seniors in each high school, which would ensure that schools that were primarily dominated by minorities would have a large population that could enroll at state universities.
However, problems are still abound in the realm of affirmative action in university admissions processes. Arguments against affirmative action range from the ineffectiveness of race-based admission policies [11] to the degradation of democracy [12]. In my personal opinion, because universities are not allowed to set down concrete guidelines on how to utilize race in admission decisions, the vague affirmative action plans that universities have seem similar to a licensing system. Its vagueness allows for the possibility of abuse, under the auspice of "fostering diversity". Even though there is consideration to GPA and other academic records, the weighted importance of race in the admissions process is undefined ; because race is an attribute that is attached to everybody, not just minority groups, one can seemingly make arbitrarily admission decisions to everybody under this shield of vagueness. I believe that the task of fostering diversity in education should begin in earlier stages of a person's educational path, and belong in the hands of those knowledgeable about education, instead of being in the hands of the judiciary branch of government. Otherwise, I can foresee no reasonable solution to the problem of affirmative action in university admissions processes.
-David
Bibliography
[1] http://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke
[2] http://www.oyez.org/cases/1970-1979/1977/1977_76_811/opinion
[3] http://en.wikipedia.org/wiki/Equal_Protection_Clause_of_the_Fourteenth_Amendment
[4] http://en.wikipedia.org/wiki/Grutter_v._Bollinger
[5] http://www.oyez.org/cases/2000-2009/2002/2002_02_241/opinion
[6] http://en.wikipedia.org/wiki/Gratz_v._Bollinger
[7] http://www.oyez.org/cases/2000-2009/2002/2002_02_516/opinion
[8] http://www.law.umich.edu/prospectivestudents/admissions/Documents/admissionspolicy.pdf
[9] http://www.ucdmc.ucdavis.edu/pathology/education/cls_training_program/admission.html
[10] http://aad.english.ucsb.edu/docs/hockstader.html
[11] http://aad.english.ucsb.edu/docs/wydick.html
[12] http://www.openmarket.org/2006/12/22/government-has-no-first-amendment-right-to-discriminate/
The first question to tackle is the issue of First Amendment jurisdiction. For every university admissions process, the mere process of evaluating the application based upon a set of criterion is already stepping into the realms of regulation based upon content. While nobody would argue that this process is necessary, the goal of affirmative action steps even farther. The fact that different racial information provided could lead to different admission decisions, shows that affirmative action counts as viewpoint regulation. For a viewpoint regulation to be considered constitutional, it must pass the test of Strict Scrutiny.
Strict Scrutiny:
1) There must be a compelling governmental interest furthered by the regulation
2) The regulation must be narrowly tailored, and acceptable in scope with regards to alternatives, vague, and overbroadness.
In 1978, the Supreme Court delivered a landmark ruling on the case of Regents of University of California vs. Bakke [1], ruling on the admissions process of universities. In this case, Bakke was an applicant to the Medical School of the University of California at Davis, where he was turned down despite having higher academic scores than "special applicants" from minority groups. In the 5-4 decision, the Supreme Court ruled that UC Davis cannot use race as the only factor in the admissions process, but that it is allowed to use race as one of the factors in the determination of the admission decisions of applicants [2]. This ruling is called a landmark ruling because governmental institutions of any kind have traditionally not been allowed to discriminate based upon race based on the Equal Protection Clause, applied through the 14th Amendment[3]. This Clause states that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws", and is viewed as prohibiting discrimination of minority groups by using the "All men are created equal" proposition.
With the Bakke ruling, many universities have begun to adopt affirmative action in their admissions process. In every case, affirmative action that universities can take needs to pass the strict scrutiny test, most importantly the narrowly-tailored requirement. In 2003, two Supreme Court rulings, both dealing with the University of Michigan, further defined the scope of affirmative action in universities. In Grutter v. Bollinger [4], where a UM Law School applicant named Grutter was denied admission despite having high academic achievements, the Supreme Court ruled in favor of the use of race as a factor in admissions. The Supreme Court again cited the compelling interest of "attaining a diverse student body" [5] in their decision to uphold the regulation. However, in Gratz v. Bollinger [6], the Supreme Court struck down the use of a points-based system of admission, which gave an absolute number of bonus points given to some racial minorities, as being "not narrowly tailored to achieve respondent's ... interest in diversity." [7]. These duo rulings present universities with a very tricky path to navigate in keeping their affirmative-action-based admissions process constitutional.
I would like to argue that, while the government does have a compelling interest in furthering diversity in educational and professional environments, they should consider taking a different approach to doing so. Firstly, from a neoliberal point of view, governments absolutely have the ability to choose to fund viewpoints that it finds compelling for the public interest. As the Supreme Court has already ruled on Rust v. Sullivan, government can regulate its "agents", which receive money from the government, to engage in government speech that it finds prudent. It is clear that, through the rulings of the many affirmative action cases in the past, the government has a vested interest in promoting diversity. Combining the rulings and the decision of Rust v. Sullivan, we can argue that first test of the strict scrutiny is valid.
However, I do not believe that using ad-hoc rules and regulations at the gates to universities is the correct method to solving the issue of promoting diversity in the educational atmosphere. From both Bakke and Gratz, the Supreme Court has already ruled on the unconstitutionality of two different concrete methods of quantifying racial contributions to the admissions process. In Bakke, UC Davis used a yearly quota system to determine the number of applicants from each race that it can take, in a segregated admissions process, while in Gratz, the UM Law School gave bonus points to minorities which helped lower the bar of admission for them. It is quite ironic that the Supreme Court has found specific affirmative action plans, such as UC Davis's quotas and UM Law School's points system, as being not narrowly-tailored enough, while finding vague assertions of "individuals with intriguingly different backgrounds" from UM's Undergraduate Admissions Policy [8], or "undertaking affirmative action" from UC Davis's Medical School [9], as being narrowly tailored enough.
With the indecisiveness that the Supreme Court has shown, I do not believe that anything other than a vague affirmative action pledge will ever be deemed acceptable. In my opinion, while affirmative action is important, the vague language in the admissions policies of universities should make it not narrowly-tailored and therefore unconstitutional. That the Supreme Court has ruled constitutional the vague language as stated above should show the extent it believes in the neoliberal compelling interest in fostering diversity.
Some states, such as Texas, have completely moved away from using content regulation of the applicant's race in the factor of determining affirmative action. When an Appeals Court ruled University of Texas's affirmative action admissions process as unconstitutional in 1996, minority enrollment plummeted. In 1998, Texas state lawmakers came up with a meritocratic method of ensuring minority enrollment into the state universities without discriminating based on race [10]. Looking at the fact that Texas's high schools remained largely segregated by race, lawmakers instituted an automatic admissions process for the top 10% of all seniors in each high school, which would ensure that schools that were primarily dominated by minorities would have a large population that could enroll at state universities.
However, problems are still abound in the realm of affirmative action in university admissions processes. Arguments against affirmative action range from the ineffectiveness of race-based admission policies [11] to the degradation of democracy [12]. In my personal opinion, because universities are not allowed to set down concrete guidelines on how to utilize race in admission decisions, the vague affirmative action plans that universities have seem similar to a licensing system. Its vagueness allows for the possibility of abuse, under the auspice of "fostering diversity". Even though there is consideration to GPA and other academic records, the weighted importance of race in the admissions process is undefined ; because race is an attribute that is attached to everybody, not just minority groups, one can seemingly make arbitrarily admission decisions to everybody under this shield of vagueness. I believe that the task of fostering diversity in education should begin in earlier stages of a person's educational path, and belong in the hands of those knowledgeable about education, instead of being in the hands of the judiciary branch of government. Otherwise, I can foresee no reasonable solution to the problem of affirmative action in university admissions processes.
-David
Bibliography
[1] http://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke
[2] http://www.oyez.org/cases/1970-1979/1977/1977_76_811/opinion
[3] http://en.wikipedia.org/wiki/Equal_Protection_Clause_of_the_Fourteenth_Amendment
[4] http://en.wikipedia.org/wiki/Grutter_v._Bollinger
[5] http://www.oyez.org/cases/2000-2009/2002/2002_02_241/opinion
[6] http://en.wikipedia.org/wiki/Gratz_v._Bollinger
[7] http://www.oyez.org/cases/2000-2009/2002/2002_02_516/opinion
[8] http://www.law.umich.edu/prospectivestudents/admissions/Documents/admissionspolicy.pdf
[9] http://www.ucdmc.ucdavis.edu/pathology/education/cls_training_program/admission.html
[10] http://aad.english.ucsb.edu/docs/hockstader.html
[11] http://aad.english.ucsb.edu/docs/wydick.html
[12] http://www.openmarket.org/2006/12/22/government-has-no-first-amendment-right-to-discriminate/
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