Censorship and right to expression

Posted on May 16, 2007 by Blake Bailey

I wrote an article criticizing my hero for his extreme stand in favor of censorship. He felt that society should be best served by philosopher kings who would make the best decisions for society. Art, he felt, was a copy of the realities we perceive and the realities we perceived merely replicas of the "true forms". Plato reasoned that art was leading us away from the search for the true forms (reality) and should be banished. This censorship is a classic example of how bad things can come from good and pure ideas. As an attorney I see the same struggle with laws trying to protect society by banning expression that might later prove to be the key to better ideas. The struggle between differing rights of a society is never ending. A person should be able to express his political ideas yet parents of children on a school ground should not have to worry about the law allowing a man to express his feelings about free sex by posing naked on the sidewalk.

To this end I wrote a paper attempting to tie the Platonic ideals to Supreme Court opinions concerning pornography. Please read the paper at  www.edgeofthecave.com/plato.html or go to the extended entry if you wish and give me your best criticisms. Thanks

http://www.bailey-law.com/lawyer-attorney-1215482.html

 

Philosophic and Political Flaws in Censorship
I propose to criticize Plato's position on censorship of the arts. In doing so my argument will be that censorship is an inappropriate function of government and the government, even one governed by philosopher kings, is incompetent to fulfill such a function.

By art I mean written prose and poetry, song, theater, sculpture, painting, dance, and oration. Although there will invariably be suggestions of other art forms, I limit myself to these for the purpose of this article. Also I realize that one could argue that several of the arts I have listed could be considered mediums of the philosopher. The arts to which Plato would censor I define as infectious, emotional, none-Socratic interaction.(1) Art necessarily tries to communicate something: reflection, drama, political or religious persuasion, information, humor, fear etc. This article is based on the presumption that Plato advocated censorship of art except to the limited extent that it helped promote loyalty to the State and groomed men for war.

Although some artists create their work merely for the pleasure of the function and never display it and still others show their creations to a selected few. This paper addresses issues concerning those who wish to publicly display their work, (although it is an interesting question as to whether governmental censorship should include that which is privately held in one's home).

Plato would argue that the artists of which I speak are not artists but mad people, divorced of logic, at best inspired by a Divine outside source. My guess is that Plato did not really believe in the possibility of Divine intervention. To believe so would weaken his argument for censorship. After all God can't do evil and always maintains a perfect image.(2) Therefore, those inspired by Him must necessarily represent the true forms. Plato probably suggested such Divine intervention to let his antagonist Ion off the hook while still making his point.

Censorship of communication foreign to accepted convention, logic, and vested interest has always confronted the efforts of great masters. Jesus and Socrates were fatal victims of official government action responding to what was perceived to be heresy and the ravings of a mad man.(3) Galileo and Spinoza spent lives of repression because of censorship by the spiritual leaders of their respective religions.

The concept of censorship in Plato's Republic has the aire of a paternalistic version of Nietzsche's Beyond Good and Evil.(4) Both conceived a vast qualitative difference between the masters and the masses. Both believed that the good from communicating to the masses had little to do with the truth, (true forms) and much to do with controlling the common people by the ruling class.
Censorship is the enemy of the free flow of ideas. It takes away the learning experience of making good and bad choices and bearing the natural consequences. It destroys the introduction of the radical words of someone coming back into the Platonic cave after seeing the true forms and trying to explain to his friends that the logic of the shadows is an illusion.(5) Plotinus' description of the poet in On the Intellectual Beauty strikingly follows Plato's allegory of the enlightened philosopher entering the darkness of the cave:

That Being appears before them from some unseen place and risingloftily over them pours its light upon all things, so that all gleams in its radiance; it upholds some beings, and they see; the lower are
Dazzled and turn away, unfit to gaze upon that sun, the trouble falling the more heavily on those most remote. (6)

Plato would ascribe this euphony to madness that should be kept from the gullible masses, yet where is the difference between this story of enlightenment of the artist and the enlightenment of the philosopher in the Platonic Cave? Plato would argue that the philosopher's journey is paved with logic and that is the difference. Yet the enlightened philosopher must still divorce himself from the logic of the shadows to understand the true forms.

There is a need for free interaction with art that is excellent, good, bad, and the patently ridiculous. Ridiculous art may only seem that way at the moment and needs to be contemplated for future wisdom. If it is ridiculous for all times, the act of considering then rejecting is a healthy experience. This process, with its many ups and downs, has caused an evolution that could otherwise not have taken place if people were only allowed to blindly follow the dictates of the elite. An idea known and rejected imparts more strength than does ignorance.

One could argue that, if the best-of-the-best were the kings, the right information would be allowed to filter into the monopolistic marketplace of ideas. Is not censorship clever and good if the right thoughts are still available without the contamination of attractive falsehoods? Even Plato did not believe that such a system of philosopher kings could endure. But if it did, would there not be disagreements about what would be subject to censor? Certainly Plato and Aristotle would have qualified as philosopher kings, yet look at how different their take is of the poets. If even the ideal philosopher kings cannot agree on proper censor, how could any person or committee of a common government possibly be competent to do so? Would not innovative new ideas be most likely subjected to censorship?

Wisdom born from each point of view has its own sui generous value. Plato realized the need for the elite to experience the life of the laborer and required his kings to spend the last years of their training working menial jobs without telling any one of their status. This background does not carry with it the multidimensional experience of living such a life from birth to death. Knowing that their toils and common status were time-limited caused a different point of view and necessarily limited their wisdom as agents of censorship.

Plato's distinction of art occupying too remote of a position from the true forms thereby fooling people is less than convincing. Our perception of reality is limited to our exposures to images. Most things, events, and people are forever lost to us because we were not there to observe them. Even those observations we do make are limited to a point in time. Further, our observations are limited to the accuracy of our senses and their electrical/chemical communication with our brain. Superimposed upon this is the mood, awareness, and point of view of our mind. Is a sunset an irritating glare on the windshield; a delicate flower, struggling through the cracks of broken concrete rendered invisible because of fear of the dark ghetto sidewalk? Even on an occasion when one is present and focused upon the beauty and importance of that observed, some are better and more sensitive observers than others. Those gifted ones who find a medium in art can share that insight.

Important art is not only appreciated because of the technique and talent of its creator, but because it strikes a cord of truth.(7) Yet, at the same time, rational people don't get confused when looking at a painting of a forest and walk into the canvas. They accept it for what it is and appreciate it as a manifestation of an artist's attempt to communicate the essence of something. Surely Plato did not think readers of the Republic believed literally that a man unshackled himself and went to the mouth of a cave(8) or that Gyges really recovered a ring in the bottom of a chasm.(9) The fact that these stories are not true does not make them lies or confuse the readers as to their value. They were his efforts in explaining the truth to his followers. Yet his efforts were no more and no less than that of an artist.

Plato might argue that his use of metaphor is merely a tool to explain philosophic truth while the poet uses poetry only to evoke pleasure. Does this not mean poetic work should be closely examined to determine if it has philosophic value before condemning it? Does the fact that many find pleasure in reading Plato's works cause it to be dangerously close to poetic?

Plato's argument that all art is merely an imitation of an imitation holds little justification for governmental suppression of these creations.

First, art conveys emotion according to Plato. This is meant to be criticism yet, if there is the perception or image of emotion, there must be a true form of emotion.(10) It is a contradiction in terms to suggest the true form of emotion can be discovered logically or literally. It may well be that artists use their art, knowingly or unknowingly, to help others finds the truth of emotions much in the same manner as Zen Buddhist Masters use archery, flower arraigning, and swordsmanship to help a student reach enlightenment.(11)

Secondly, Plato contradicts his concern by advocating that poetry fade still further from the truth to achieve political ends.(12) Plato's Socrates argued in the Apology that good comes from knowledge and evil from ignorance.(13) It appears that Plato's political policy to keep truth from, or lie to the citizens of the Republic for their own good would be counterintuitive to this argument.

Some music was to be kept from men so they would remain "warlike." This might be less than an admirable propaganda goal of a government by today's standards. It certainly seems that Plato not only wanted to keep certain emotional influences away from the people, but had an emotional agenda of his own for the ends of his politics. The point is that Plato criticized poetry because of its distance from truth, then suggested it be further removed.

The better argument is that true art is free-standing. It is a reflection of its own true form and not a stepchild of those objects it depicts. If love, a sunset, a painting, or anything else evokes emotion then that is a natural human consequence and has as much right to be philosophically recognized and celebrated as any other mental or physical property.

The question then arises if Plato was wrong in his blanket rejection of the arts, should there be some control of the expression? What formula should be used? Who within government should be charged with the responsibility? Even if it were possible to have a government wise enough to properly decide what art a society should be exposed to, is this a legitimate function?

Three avenues of thought concerning human conduct are: ethics, (striving for the goodness of man); morality, (code of conduct among those in a society); and regulatory and criminal law.(14) Only the third avenue requires governmental intervention. This covers conduct that may well be an ethical or moral issue, but one that the government has decided needs punitive response because of its infraction against its citizens, (such as murder, robbery etc.) Censorship is a vain act on the part of the government unless it has the ability to punish those breaking its rules.

With the exception of protecting young minds not yet ready for "evil" persuasion, most expressions are tolerated in enlightened legal systems to one degree or another. The possible harm of art depicting elephant dung thrown across an image of the Virgin Mary or the burning of the American flag is not precluded by the United States government but left if up to the critics and observers of art to decide whether it conveys a message of value. (15)

The never-ending problem is that some expressions violate other basic civil rights. For instance yelling fire in a crowded theater when there is none should be illegal because of the infringement of others' right to be free from unnecessary danger. Clear and present danger is another line drawn in the sand.(16) Advocating violent overthrow of the government is tolerated as long and as the expression does not call for immediate discharge of weapons.(17) Although these restrictions by our government may be de facto censorship, the motivation is merely to draw a logical line between two overlapping rights.

Another overlapping right is that of protecting children.(18) Much of the foundation of Plato's argument for censorship deals with the protection of children. The State has a legitimate role in restricting adults from having sex with or introducing sexually explicit material, art or not, to those too vulnerable to cope with its implications. It would seem that the government does have a legitimate function in restricting the admission of children to adult rated exhibitions and addressing what children are exposed to by providing factual information to guardians of content of movies, etc.(19) In this manner society provides some safeguards for children and assistance to adults charged with the duty of evaluating the appropriateness of any art viewed by children.

The question then arises whether the government should censor and censure art that it feels might affect morality of its citizens. Is morality to be protected by the government or should it instead be addressed outside the confines of punitive law? Is this a function beyond the competence of the government and, therefore, should be left to the discretion of its citizens?

The clearest example of the United States government attempting to regulate morality by censorship is that dealing with what has been termed "hard core pornography." Historical efforts by the United States to restrict art by some definition of pornography has been problematic. After all, the Bible, Shakespear's plays, scientific texts, Greek tragedies, ad infinitum, contain tales of mass murders, incest, rape, and every other immoral act one might want to band. So what is the standard? Who will implement it?

The vain attempt to regulate pornography in the United States caused, for a while, our Supreme Court Justices to perform ad hoc factual review to determine whether some expression is protected under the first and fourth amendments of the United Sates Constitution. The test adopted by the United States Supreme Court was "Whether to the average person, applying contemporary community standards, (this meant national standards), the dominate theme of the material taken as a whole appeals to prurient interest . . . utterly without redeeming social importance."(20) In a divided opinion the Court held that the subject matter of the movie in question did not reach such a level of offensiveness that it was not protected by constitutional rights.(21)

Interestingly, the Court stated that to set as the standards that which should not be read by children would reduce reading for adults to that only fit for children. This wording, although probably unintentional, provided rebuttal to the logic of Plato.(22) The Court wrestled with the practical problems of acting as an elite censorship panel. It effectively condemned itself to factually reviewing each appeal to determine whether some work should be censored. In many ways the Justices addressing this issue were are like Plato's philosopher kings. Each had impressive credentials and was immuned to the pressures of democratic politics, yet there was wide disagreement about the role of the Court, what formula should be used by the Court, and how it could provide reasonable notice as to what was to be censored and censured by the government. This indecision was best voiced in the concurring opinion of Justice Steward:

"I shall not today attempt further to define the
kinds of material I understand to be embraced within
that short hand description, (hard core pornography),
and perhaps I could never succeed in intelligibly doing
so. But I know it when I see it . . ." (23)
This grappling with the illusive duty and definition continued to cause the Court to be mired down in a matter for which it was poorly equipped to handle. Such a definition entertained by the court is necessarily vague and could apply to many great masterpieces of art. Also it became quite easy for the sex stars to lament at the end of a XXX film and change their ways, thereby giving the film some socially redeeming value. In truth, such movies might be shocking but hardly likely to alter the morals of the audience+even the young.(24) Movies likely to effect morality are those not censored by the government; high budget films depicting a hero who has a license to kill and open sexual, (though not graphically depicted), access to beautiful women.(25)

Revulsion of some "art" in the marketplace of ideas should not cause us to screen expression rather than letting the natural course of collective thought reject the bad and irrelevant. Even if leaders felt it a good idea to do so, who could we possibly trust to act as the Big Brother of our moral conscience?

1 The fact that this distinction is, at best, nebulous is a fundamental argument against censorship.
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2 H. Adams ed. Critical Theory Since Plato, The Republic II, p.20, (Harcourt Brace Jonanovich College Publishers, revised edition 1992)
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3 Depending one's belief of an after life.
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4 F. Nietzsche, Beyond Good and Evil, pp 206-207, (Vintage Books, 1966)
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5 E. Hamilton and H. Cairns, ed., Plato, The Republic II, pp 747-749, (Princeton University Press, 12th printing, 1985)
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6 Critical Theory Since Plato, Ibid, On the Intellectual Beauty, pp104-105
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7 It has been argued, but without strict scientific methodological support, that music has its quality because it reflects the same structure as the basis of life itself, DNA. P. Gena PhD., C. Strom M.D., PhD. Musical Synthesis of DNA Sequences, (1995 Actes/Proceeding I.S.E.A). Whether this is true or not, there is little explanation as to why some music makes its audience cry and other engenders laughter; why some abstract paintings strike a deep cord in the hearts of its observers and others are merely a collection of paints, other than they reflect a glimpse into the true forms.
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8 Plato, Ibid The Republic II, pp747-749
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9 Plato, Ibid The Republic II, pp 607-608
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10 Or, as Immanuel Kant suggested, the "sublime." Critical Theory Since Plato, Ibid., Critique of Judgement, pp388; 392-393
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11 E. Herrigel, Zen and the Art of Archery, (Vintage books, 1999)
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12 Critical Theory Since Plato, Ibid, The Republic III, p 24
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13 Plato, Ibid, The Apology, pp11-12
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14 There are other disciplines, but consideration of these three is sufficient for this issue.
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15 Texas v Johnson 419 U.S. 397 (1989)
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16 Schenck v U.S 249 U.S. 47 (1919)
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17 Bridges v State of California 314 U.S. 252 (1941), Also see restriction on "fighting words", RAV Petitioner v City of St Paul Minn. 505 U.S. 377(1992)
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18 Critical Theory Since Plato, Ibid, Republic II, pp18-22
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19 The most that can be hoped for is requiring an adult to be aware of the material and making a judgement since there is no workable formula to distinguish exhibits at the New York Museum of Art from the fold out in Play Boy magazine.
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20 Ellis v Ohio 378 U.S. 184, (1964)
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21 The logic of the opinion was also considered relevant to "art, literature, and scientific works"
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22 Critical Theory Since Plato, Ibid, The Republic II, pp18-22
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23 Ellis v Ohio, Ibid at pp 197
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24 Even in decisions upholding pornography statutes, the Supreme Court admitted that there was no evidence concerning the effects of this trash on the morality of the citizens. Kaplan v California ,413 U.S. 913 (1973); Blank v California, 419 U.S. 913 (1974)
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25 Interestingly, considering Plato's view of women and his desire to keep men ready to kill and die for the State, these movies and their offense to current concepts of morality probably would not have been all that offensive to Plato.
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Areas of Law Practice

Posted on September 1, 2006 by LexBlog

Personal Injury Trial Law

Injury can occur as a result of someone's negligence, for example, a drunk driving a car or truck. Anyone violating traffic law or being reckless can be the fault of injuries to another. The law recognizes damages for pain, anguish, physical impairment, loss of earning capacity, medical expenses and disfigurement. Also, in the event of death or serious bodily injury, family members have the right to recover for the loss of the love and support caused by the fault of another. I am board certified in personal injury trial law and have tried close to 200 jury trial to verdict.


Products Liability

A specialized area of personal injury trial law involves products that are unreasonable dangerous by the nature that they are designed, manufactured or marketed and cause injury to a consumer or bystander. This is a complex area of litigation that requires an attorney capable of building a technical case against corporations well equipped to avoid their legal responsibility. Products can range from pharmaceuticals to automobiles. All manufacturers owe a duty to make their products reasonably safe especially if any defect is not one easily recognizable by the consumer. Many times companies worry too much about beating competition in getting out a new product and worry too much about marketing and profit to take the time they need to properly explore potential dangers or risks to which their customers might be exposed. One only needs to look at the recalls posted by consumer groups to realize this is a current and on-going problem.


Constitutional Law

The United States Constitution guarantees rights that are common to all citizens. Discrimination based upon race color or creed is against our national laws and our courts protect individuals who have been victims of such practices. Also, certain statues such as the American Disabilities Act provide protection for those of us who have handicaps. Large employers must provide work duties to those who have become disable if they exist. Laws protect workers who are discriminated against because of age.


Toxic Pollution and Disease

Companies that emit pollution in the air, water or soil can cause serious injury and disease. Not only can workers be exposed to emissions at work, but neighbors can as well. The most vulnerable, pregnant women, children and the elderly have been sacrificed in the name of profit and production. The right to be free from toxic waste is one that should be guarded and a handful of lawyers have fought for these rights. The federal government is sadly too under funded and the task falls, many times, on the families exposed to fight back. This requires a lawyer willing to undertake such a monumental task on a contingent fee basis. Some companies add to their profits by using private and public land and waters rather than take responsibility for the costs of disposing of the wastes from their production. Landowners discover that under their land or in their streams lies storage for the worst pollutants the companies simply chose to let run free. Many of us become unwitting garbage collectors of wastes that will remain on or under our land for centuries. The law has remedies for these transgressions both for disease caused and desecration of the private and public lands we own.


General Civil Litigation

Attorneys can resolve disputes by filing or defending civil lawsuits. The type of lawsuits besides civil is criminal. Lawyers with different specialties try criminal cases in which the State is seeking penalties for a criminal violation. Besides personal injury litigation, the courts are used to resolve other civil disputes. Examples are: contract disputes; failure of an insurance company to pay its insured for a loss; consumer protection if a product or service doesn’t live up to its warranty.

One notable experience consumers have is suffering damage to their home or business because of a storm or fire, yet the insurance company that has taken premiums over the years takes no interest in putting their insureds back as they were before the loss. Many times, because of financial hardships and just plain weariness, the consumer gives up and the insurance company wins.

Sellers of cars and other expensive items call the shots many times for consumers and get away with not providing the quality product or service they promise.


Railroad Law (FELA)

Special federal law entitled Federal Employer's Liability Act. Employees of the railroad are protected by law that is more liberal than local state law regarding injury or death. If the railroad’s negligence is at fault at all in the injury then it is liable for damages. This law was first created in the early years of the industrial revolution when many railroaders were killed or maimed without any hope of compensation for them or their families. The unusually dangerous nature of railroad work has been offset to some degree by this law providing financial security for the workers.


Medical Malpractice

Doctors, nurses and other health care providers owe the same duty to be prudent. Bad outcome does not necessarily equal bad medicine, but when it is proven that a health care provider violated the trust a patient has given them, they should be responsible for the damages. Unfortunately, the Texas legislature and Texas Supreme Court has crippled the ability of those with legitimate claims from receiving a recovery that will protect them from the harm that was done. Most trial lawyers won’t handle Medical Malpractice claims because of the expense in bringing an action and the limitations on recovery. A few lawyers still review these claims as a matter of principal and refusal to dismiss the rights of an injured person.


Business Litigation

Business litigation covers many areas of law. Businesses find themselves in dispute that cannot be resolved without litigation. Issues of fact and law can reach dizzying complexity. The tools used by a personal injury lawyer can give a business an advantage. Plaintiff’s trial lawyers are used to going against multi-billion dollar insurance companies while representing a client with little or no resources. Dogged discovery and trial experience prepares him for the conflict between large and small businesses. Contracts, licenses, territories, patents, copy writes, representations…the list is endless of the issues that a company may find itself in need of a litigation specialist.


Appellate Law

This refers to legal research and argument in higher courts. In Texas courts a decision by a district judge can be appealed to the Court of Appeals and then to the Texas Supreme Court. If a case is in federal court, a decision by the federal district court can be appealed to the 5th Circuit and then the United States Supreme Court. Blake Bailey is licensed to practice in all of these courts. It is a distinct advantage for the trial lawyer to also be schooled in appellate law. This gives him the advantage of trying a case while carefully avoiding error that might get a judgment reversed on appeal. It also puts him in position to keep the opposing counsel from improperly presenting his or her argument.


Maritime Law

The law concerning negligence causing injury. Maritime law covers seamen while assigned to an ocean going ship. This becomes complicated since some offshore drilling rigs qualify as ships. The law for sailors is similar to that of FELA for railroad workers. Work on ships can often be even more dangerous than railroad work. Like FELA this type of litigation has its own unusual terminology and unique law so many attorneys are not well equipped to handle such cases.


Pharmaceutical Deaths or Illnesses

The lawsuits have been in the public consciousness more of late. Most recent news describes how the Federal Food and Drug Administration is under-funded and can not possibly keep up with all the new drugs being pushed to market by the giant pharmaceutical companies such a Merck and Pfizer. Because it is so under-funded and understaffed, it must rely upon the companies pushing the drugs to do the basic research to determine effectiveness and safety. The FDA also has no effective way to follow-up on the drugs once on the market. So, if a dangerous drug is pushed through the FDA approval process, then begins to harm patients, there is really no governmental response.

But for the efforts of plaintiff’s trial lawyers many of the dangerous drugs would continue to harm patients.

Even if a drug is one that has a reasonable use, patients and their doctors must be warned of side-effects and dangerous characteristics. All effective drugs have their downside. The companies reaping the profits of their drugs are not motivated to tell the world of all the complications and the government is impotent to do so. Patients must look out for themselves; keep up with the latest news and consult with their doctors.

If someone gets sick from the medicine that is suppose to help them, they should seek the advice of a trial lawyer who is sophisticated in the science of pharmaceutical litigation.


Nursing Home and Elder Abuse

Taking care of our parents and, someday, us is a big industry. Nursing Homes are health care providers so are protected by the outrageous legislation protecting insurance companies, hospitals, doctors and nursing homes who commit negligent acts, but the rights of a nursing home patient can still be protected by a lawyer willing to fight the system.

The right of the elderly to rely upon the management and staff of a nursing home is as important a right as there is. There should be no compromise in protecting the residents of nursing homes and no nursing home should ever feel it has a license to treat the most vulnerable of us as it wishes.




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