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To Stream or Not To Stream, Sony is the Question!

December 24, 2014

To Stream or Not To Stream, Sony is the Question!

By Malcolm L. Rigsby, J.D., Ph.D.

When the hullaballoo surrounding the release of the film The Interview came to the newest forefront of American media news I resisted wading in on the discussion. It seemed to me more important to consider other things such as our society’s failure to resolve the evident perpetual state of racial tension in America. Nonetheless, media as it often does decided that the Sony hacking story and threats against screening the film should dominate coverage, thus I was required to consider the issue more deeply.

With my hesitancy in mind I proceeded to examine the issue. Admittedly, as a legal and social scholar who finds interest in group action and social movement I am skeptical of attempts to limit what is otherwise known as “free speech” as protected by the U.S. Constitution. It is this free expression that enables the citizenry to conduct themselves without undue governmental interference. A principle at the heart of a Representative Democracy is the right of every citizen having a place, means, and time to express opinion or belief even if unpopular and offensive to others or the government. However, as partly due to my time spent on this earth and again in relation to my experiences in the pragmatic application of law to social participants I realize that freedoms including free speech may be regulated. What I can say and do in the expression of my views and opinions may be regulated by those in proximity to me as in the old saying “you are as free as your neighbor will allow”. And, in these instances of private regulation we as civil citizens must simply abide by or negotiate. But these same expressions in certain instances may be regulated by the government that is designed to serve us as a “protector” of our nation of people. It is to the governmental regulation with which I am concerned at this time.

Free speech as has come to be interpreted in the First Amendment of the Bill of Rights of the U.S. Constitution is not the right to say or write or demonstrate my opinions, beliefs, or feelings in any way, or at any time, or at any place I wish. Speech is an expression that is conveyed verbally, nonverbally, visually, or symbolically. As a citizen of the U.S., I am charged with a duty of reasonableness in my expression and how and where I exercise it. The US Supreme Court has determined that where expression may cause “substantial harm to the public” it is not protected as free speech. In other cases the test for whether speech is constitutionally suppressible is one of balancing the importance of the “freedom” to exercise the speech vs. “potential danger or harm” from the speech. Within this analysis there are some particularly defined exemptions to free speech which include defamation that hurts someone’s reputation, obscenity defined over time by several U.S Supreme Court cases, causing panic, sedition against the government, and incitement to crime and fighting words. A suspect classification of “free speech” is hate speech. Hate Speech is aimed at a person or group based on race, ethnicity, gender, age, religion, sexual orientation, disability or distinction related to Title I of the Civil Rights Act. Oddly the only time hate speech is not protected by the First Amendment is when it targets and is in context with one of the exceptions.

So what about Sony’s film The Interview? Of course, not having seen the film it is difficult to enjoin it objectively. Film today is filled with violence that some have hinted led or inspired some viewers to commit crime or breach the peace. Potentially in this light Orson Welles film War of the Worlds could be argued to have caused panic much like screaming out “Fire” in a dark and crowded movie theatre. The question at issue is not simply whether Sony produced a film that “might” cause someone to commit crime, cause panic, or fight. If this were the test I dare state that most of our media today whether music lyrics, film, videos on the internet, books and more would be outlawed. This is not an acceptable outcome. Fighting words are those words that by their “very utterance inflict injury” or “tend to incite an immediate breach of the peace”. Incitement on the other hand “spurs” another to commit a crime.

A pivotal question is whether Sony comes too close to one of these exceptions when referring to the assassination of the leader of North Korea? Consider first whether this film may be defined by “incitement to crime”. First, Kim Jong Un is a living person and he is the leader of North Korea. Second, killing someone is often a crime. With this in mind, the relevant question becomes whether the production of this film is an incitement to crime? Might this film draw upon a fact scenario that is too life-like in relation to a living and identifiable human being? The issue is not whether we approve of Kim Jong Un, but whether the film “tends to incite an immediate breach of the peace”. Of course then we have to analyze the concept of “immediate breach”. I will leave you to this.

The second consideration is that of “fighting words”. Again, Kim Jong Un is a living person and the leader of North Korea. We must at this point agree that at least someone has been incited to an immediate reaction that has breached the peace. The question in this becomes whether the “very utterance” would inflict injury or tend to incite. Again, like the question of the “immediate breach”, this is what makes good court cases and I will leave you with this also.

Now, to President Obama’s latest spew condemning Sony for pulling the film we must turn. It is clear that Sony at a minimum made its decision as part of good practices in business. Simply put, Sony is there to make money. If theaters are boycotting the film, they need to locate a new venue. And, though not discussed, delay in the opening and locating a new forum may prove highly profitable to Sony. It is reasonable to say that most Americans have now heard of the film and this in itself may have created a larger and more interested audience.

In his media speech Mr. Obama stated “Or even worse imagine if producers and distributors and others start engaging in self-censorship because they don’t want to offend the sensibilities of somebody whose sensibilities probably need to be offended. I wish they (Sony) had spoken to me first.” Apparently, in this analysis had Sony decided to set the film in America with North Korean journalists coming to interview him the film would have also been perfectly fine! What Mr. Obama needs to consider is the larger implications of what the film means to American safety and whether it may fall within the exceptions to free speech. If it is not protected as free speech it may be regulated; conversely if it is protected speech it is not to be regulated. So what is the government’s role here? The question becomes whether the government has a “compelling governmental interest” like national security or perhaps war, terrorism, or even digital invasion. In such an instance this might be a case where the government itself would be obligated to step in and restrict the speech of the film in order to protect America.

Malcolm L. Rigsby J.D., Ph.D. is assistant professor of Sociology and Coordinator of Criminal Justice in the U.S. He is a publication peer reviewer, is published in journals and news columns, is active in presentations in sociology and criminology and serves on discussion panels. His interests include social movement, religious conversion in prison, comparing Islamic and Christian conversion, and transforming sociality. He is active in documentary film review and travels in Eastern Europe, Asia and the Middle-east.

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