12/18/2007

Speech Dilemma

Speech Dilemma
By Sean Hayes

Appeared in the Korea Times on Dec. 11, 2007


An American investigative news program, 20/20, aired a report that sheds light on the dark side of free speech in America and the difference in the treatment of speech in America vs. Korea.

The report featured a couple of stories concerning the perils of free speech. One of the stories concerned the 18-year-old daughter of Christos and Lesli Catsouras who died in a gruesome car accident.

Pictures of the accident reached the public and promptly the Catsouras received anonymous e-mails and text messages that contained the photographs of the accident. One photo included the picture of the 18-year-old daughter's decapitated and mangled body in the crumpled remains of the automobile.

A fake MySpace page was even created, which at first looked like a tribute to Catsouras, but quickly redirected to the ghastly pictures. The father, a real estate agent, received mail disguised as sales leads that also included the gruesome photos.

Another story concerned a psychologically fragile 13-year-old girl who committed suicide after having a long-term strictly online friendship with 16-year-old boy who was later found to actually be a school girlfriend that had a profound hate for the girl.

The school friend, disguised as the 16-year-old boy, was very friendly to the girl frequently telling her that she had beautiful eyes and a nice smile, but later, on her birthday, drastically changed his attitude and cut off the friendship with postings, e-mails, and messages calling the girl a ``fat ass" a ``whore" and that the ``world would be better off without her." The same day the girl hung herself in the closet

In Korea, the prosecution would likely prosecute and a judge would likely convict the wrongdoers in these cases. In the U.S. these evils acts will go unpunished. The dichotomy stems fundamentally from the different attitude towards speech, the right to privacy, and public morals.

Article 21(4) of the Korean Constitution states that ``Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics." This limitation on the general right to speech and press, it is argued, allows the criminal punishment for even speech that is truthful.

The Korean Constitution, facially, balances the rights to free speech versus the privacy rights of the individual and public mores and social ethics. This inherent balance creates less protection for the freedom of speech than in the United States.

The First Amendment to the United States Constitution provides the protection for free speech. The First Amendment states that: ``Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

This Amendment has been interpreted as creating the near absolute level of protection for the freedom of speech. Justice Cardozo in Palko v. Connecticut states the reason in the United States for the near absolute protection of free speech.

Free speech is a ``fundamental" liberty, in part, because ``our history, political and legal," recognized ``freedom of thought and speech" as ``the indispensable condition of nearly every other form of freedom."

The conception is that the right to free speech is the very foundation of American society and without the right to free speech and free press other freedoms are necessarily inhibited. Thus, in the U.S. we place speech as the top in the hierarchy of rights and thus a balance between competing rights, usually, prevails in favor of speech

The best solution to this ``speech dilemma" I can't pretend to solve.

However, I believe most of us in America would rather hear of these terrible stories than have the government choose if speech violates ``the honor or rights of other persons" or ``undermine public morals or social ethics," since the government often gets its wrong, will use these balances to protect the interests of the vested elite, and will enforce law punishing speech in an inconsistent and in personally beneficial manner.

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SeanHayes@ipglegal.com