There has always been a connection between intellectual property and the right of free speech: sometimes the two are in conflict, usually in the context of copyright law versus free speech, and sometimes they work in tandem, as when intellectual property rights lend support to the right of free expression. This connection allows me to comment on free speech matters, despite the fact that the primary focus of this blog is on intellectual property rights.
Two recent controversies reflect how free speech rights are being invoked to protect conduct which strains the fabric of society and the need for citizens to consider the moral consequences of their actions.
In Alamogordo, New Mexico, Greg Fultz commissioned and put up a highway billboard ad showing him holding the outline of an infant. The text next to the picture reads. "This Would Have Been A Picture Of My 2-Month Old Baby If The Mother Had Decided To Not KILL Our Child". Nani Lawrence, the ex-girlfriend, has filed suit against Fultz for harassment and invasion of privacy. She also asserts that she did not have an abortion, and that the loss of her infant was the result of a miscarriage. Fultz' defense is that under the recent holding in the Westboro Baptist Church case, he has a right of free speech which allows him to post this admittedly unpopular and offensive billboard.
The ongoing debate over whether circumcision is a valid medical procedure has spawned an online comic featuring a handsome, muscular superhero called Foreskin Man, battling an evil Monster Mohel. The Monster is depicted as a dark, bearded Jew in Orthodox garb (a bearded man wearing a black hat, prayer shawl and a long black coat) looming over a naked child on a table. A mohel is a Jew trained to perform religious circumcision on babies. The author of the comic, Matthew Hess, acknowledges that he sees himself as Foreskin Man, noting that he and his character are both of German ancestry and have light-colored hair.
Hess and associates are the driving force behind a ballot measure in San Francisco's upcoming election which makes circumcision done within the city limits a misdemeanor subject to a $1000 fine, even if it is done for religious reasons. A previous cartoon, released last summer, that depicted an evil Doctor Mutilation, who circumcised boys for medical reasons drew far less attention than the Monster Mohel version.
Jewish leaders have responded to the new comic, branding it as anti-Semitic. Hess acknowledges that his purpose in creating the comic is to ruffle feathers; he claims that he is not an anti-Semite - he is just opposed to any person who circumcises children, regardless of the reason.
In an article about the controversy written by Will Kane and published in SFGate.com on June 7th, USF Professor Corey Cook offers his view of Hess' comic: "Whatever the intent, these images are certainly working to get attention...I do think these will start conversations (about circumcision), but I am not sure it is the conversations these people want us to be having."
In his famous 1978 graduation address at Harvard, author Alexander Solzhenitsyn decried the absence of morality in our legally oriented society. He noted:
"If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right, and urge self-restraint, a willingness to renounce such legal rights, sacrifice and selfless risk: it would sound simply absurd. One almost never sees voluntary self-restraint.
A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities.
The defense of individual rights has reached such extremes as to make society as a whole defenseless against certain individuals. It is time, in the West, to defend not so much human rights as human obligations."
Solzhenitsyn makes a very important point. I can't say as a matter of law that what Fultz and Hess have done is not a valid exercise of their First Amendment rights, although I have my doubts on that score. What I can say with certainty is that they have acted without voluntary self-restraint, and in advocating their views, they further encourage the descent to a low level of human behavior, and further strain the fabric of a moral society.