Journal of Creative and Scholarly Works -High Point University

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Innovation: Journal of Scholarly and Creative Works

2015

Volume 3, 2015

Innovation The Journal of Creative and Scholarly Works

www.highpoint.edu/urcw/hpu-journal/ journal.urcw@highpoint.edu Office of Undergraduate Research and Creative Works High Point University 833 Montlieu Ave. High Point, NC 27262 1

Innovation: Journal of Scholarly and Creative Works

2015

Editor-in-Chief

Dr. Joanne D. Altman, PhD Director, Undergraduate Research and Creative Works Professor of Psychology

Cover design by Laura Schramm Laura Schramm, creator of Innovation’s cover design, was a nonprofit business major and graphic design minor at High Point University. Schramm won the journal cover design competition hosted by the Office of Undergraduate Research and Creative Works in the fall of 2012. She began by brainstorming different ideas and jotting down anything she thought of in her sketch book. She decided to use light bulbs because they symbolize all majors and the trial and error it takes to come up with that one brilliant idea. Schramm graduated High Point University in May 2013 with plans to attend graduate school online to pursue an MFA in graphic design while working a full time job in the nonprofit or graphic design field.

Copyright @ 2015 High Point University

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2015 Board of Reviewers Joanne D. Altman, PhD Director of Undergraduate Research and Creative Works and Professor of Psychology High Point University Vern Biaett, PhD Assistant Professor of Event Management High Point University Matthew Carlson, PhD Assistant Professor of English High Point University Scott Davis, CPA Associate Professor of Accounting High Point University Joe Goeke, PhD Visiting Assistant Professor of English High Point University Jo Lacy, PhD Assistant Professor of Accounting High Point University Laura Linker, PhD Assistant Professor of English High Point University

Ross Roberts, PhD Assistant Professor of Accounting High Point University Suryadipta Roy, PhD Assistant Professor of Economics High Point University Donna L. Scheidt, PhD Assistant Professor of English High Point University Georgeanna Sellers, MA Assistant Professor of English High Point University Karen C. Summers, PhD Instructor of English High Point University Allison S. Walker, MFA Instructor of English High Point University Dr. Yan Yang, PhD Assistant Professor of Communication High Point University

George Noxon, CPA Jefferson-Pilot Associate Professor of Accounting High Point University

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Letter from the Editor-in-Chief The office of Undergraduate research and Creative Works (URCW) encourages and supports the establishment of collaborative partnerships between nurturing faculty mentors and enterprising students.

Within these partnerships, critical inquiry, brainstorming, debate, and mutual discovery intertwine, leading over time to the production of finished work suitable for presentation, exhibition, and publication. This journal gives students the opportunity to follow their completed work all the way through the professional process to publication.

Thus, URCW is pleased to publish the third volume of the refereed journal, Innovation: Journal of Creative and Scholarly Works. In this issue, we include seven submissions from a range of disciplines from students who have completed independent undergraduate creative or scholarly work. We hope this journal inspires many young scholars to consider publishing their undergraduate academic papers before they graduate college.

Joanne D. Altman, Director of Undergraduate Research and Creative Works Editor-in-Chief of Innovation: Journal of Creative and Scholarly Works

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Innovation: Journal of Scholarly and Creative Works

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Table of Contents “Life Never Does More than Imitate the Book”: Postmodernism and the Death of the Author in Kiss Kiss Bang Bang Christina Burchette…………………………………………………………………..………..…6 Technology: A Detective Device or a Fraudsters’ Medium?

Patricia Suchan.…………………………………………………………………………………13 Don’t Be Scared Dan Lomas……..……………………………………………………………..………………....20 Frank the Fish: A Case Study of Interactive, Interdisciplinary Group Poetry Workshops in an Assisted-Living Facility Tayla Curran..………………………………………………………………………….….…… 22 Protecting the Right to Yelp: Is it Time for a Federal Anti-SLAPP Law to Shield Free Speech Online?

John Marsicano………………………………………………………………………………....31 The Melancholy Muse Amy King……….……………………………………………………………...…………….…39 A Cross Country Comparison of a Public Company Audit Report Andrew Colitti…………………………………………………………….………………….….45

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“Life Never Does More than Imitate the Book”: Postmodernism and the Death of the Author in Kiss Kiss Bang Bang Christina “Tina” Burchette Christina Burchette is a senior English major, with minors in

Spanish and women and gender studies. She has been published in last year's volume of Innovation, as well as in the Margaret Atwood Society Journal. Her work in this year's journal is based upon an essay she wrote for her critical theory English class. This research was different than the type she is used to because she chose to analyze a film rather than a piece of literature. This paper explores lofty literary theories by Barthes and Jameson in relation to a recent detective thriller film, Kiss Kiss Bang Bang. Her mentor Dr. Carlson assisted her in rethinking and reorganizing the piece for publication. After graduation she will be interning with the Brown Creative Group in Winston-Salem.

Abstract On the surface, Shane Black's 2005 detective comedy, Kiss Kiss Bang Bang, seems like nothing more than a contemporary, self-mocking crime thriller. There is plenty of action and violence for high-adrenaline types, and the plot is sprinkled with snappy dialogue to ease the tension of all the characters getting murdered. To top it off, the cast consists of several standout actors beloved by American cinema. However, certain literary theories may be applied to the film's seemingly simple structure to reveal more in-depth meaning. This paper examines the role of theory regarding the death of the author, as prescribed by Roland Barthes, and the death of the subject—a key indicator of postmodern texts according to Fredric Jameson—and how the two theories appear and play off of each other in the film, causing the viewers to question their ideas about reality, consider the importance of the author in terms of his or her own works, and address ideas about postmodernism.

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he 2005 film Kiss Kiss Bang Bang is American screenwriter Shane Black’s directorial debut and the black sheep of his other more well-known buddy-cop movies such as Lethal Weapon 1 & 2. Though it contains elements of the typical cop action movie that audiences expect from Black’s writing, Kiss Kiss Bang Bang was his opportunity to craft a film with total creative control, and therefore is unique within his body of work. It contains complex postmodern ideas while it masquerades as one of his more mainstream crime thrillers.

The theory of the death of the author, as prescribed by Roland Barthes, and postmodern strategies such as pastiche and metafiction appear and play off of each other in the film to demonstrate two objectives: nostalgia for cultural forms of the past, specifically pulp detective 6

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fiction and film noir, and a self-conscious critique of contemporary Hollywood film conventions.

The literary theories which are seen in the film’s structure, action, and dialogue cause the astute viewer to question their ideas about reality and critique the repetitive and gimmicky state of American cinema today alongside Black. However, the film still retains the simple strategies for popularity which it mocks through these theories, demonstrating Black’s self-awareness in using these strategies and his dependency on such film devices. What is created, then, is a postmodern film that stands out from typical Hollywood cinema, but is still accessible to a wide array of audiences.

The plot of Kiss Kiss Bang Bang follows the narrator and protagonist, Harry Lockhart, on his journey to solve an unusual mystery with the assistance of his love interest (Harmony Lane) and private detective turned mentor/sidekick Perry Van Shrike. Harry begins the film as a petty thief, but during a heist gone wrong stumbles onto an audition for the role of a detective in a movie. Ironically, he gets the part and is flown to L.A. for appearances at parties and detective training with Perry. From this point reality becomes unclear because Harry's life begins to mimic that of detective novel protagonist Jonny Gossamer, who is mentioned throughout the film. The formulaic plot of these novels soon begins to take over Harry’s own life, blurring the lines between reality and literature. This confusion parallels the theories of Roland Barthes, who states that “life never does more than imitate the book, and the book itself is only a tissue of signs, an imitation that is lost, infinitely deferred” (1325). This idea of reusing past forms is reflected in the cinematic structure of Kiss Kiss Bang Bang, which gives the impression of a 1940s film noir and a pulp fiction novel. Harry’s life after moving to L.A. takes the shape of the Jonny Gossamer series with “two cases that were seemingly unrelated. One's normal, and the other one's like some wild shit. And then you find out that they're connected—that it's all one case. That's the essence…” Everything that happens to Harry is an imitation of the Jonny Gossamer books in terms of plotline and imitates a pulp fiction novel/film noir in terms of cinematic form. This imitation suggests nostalgia for these forms on the part of director Shane Black, and an awareness that these forms are no longer the norm in contemporary cinema.

Kiss Kiss Bang Bang unfolds in chapters that show up on the screen as titles when an important or pivotal scene is about to occur, and also anticipate the dialogue that follows. These “chapter titles” happen to be pulled directly from the books of Raymond Chandler, an American screenwriter and novelist and a founder of the hard-boiled detective fiction genre that Kiss Kiss Bang Bang undoubtedly salutes. In one of the first chapters titled “The Lady in the Lake,” Harry and Perry find the body of a woman—Veronica Dexter— locked in the trunk of a car after it was driven into a lake while doing other detective work, and Harry explicitly refers to her as “the lady in the lake,” hence the chapter title. In addition, the font of the chapter titles mimics the font on the cover of the Jonny Gossamer books referenced throughout the film. Through these structural strategies, the audience member becomes somewhat of a reader instead of a filmgoer, making Black's literary references all the more evident.

This focus on the hybrid reader/filmgoer audience member makes Barthes's beliefs in the importance of the reader over that of the author far more relevant in terms of the film: “The reader is the space on which all the quotations that make up a writing are inscribed without any of them being lost” (1325). When it comes to a fictional novel, the reader is the most essential figure involved because the reader ascribes meaning to the work, which is what gives it importance. When a work is attributed solely to an author, meaning in the text may be lost because audiences will make assumptions about representations in texts based upon what they know about the author instead of what they derive from it themselves. In addition, authors may 7

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claim that a text means something (or nothing) while being unaware of other meanings it may have. After all, an author cannot control what audiences will make of his/her work. The readers, though, are able to generate any number of meanings and this is what is most critical to the text.

This concept is present in Kiss Kiss Bang Bang not only through structure and the framing of the audience as readers, but also through dialogue, specifically when Harry explicitly denies the importance and power of an author in creating meaning during a flashback scene. Harry talks about the author of the Gossamer books in regards to the past of his love interest, Harmony: “before he died, the guy that wrote the books said Jonny Gossamer was a joke. He wrote 'em for the money and it was all bullshit. Harmony ignored this. She knew better. I mean, who the hell was he? He was just a writer.”

His definitive dismissal of the author and his intentions demonstrates the New Critic’s belief that “the design or intention of the author is neither available nor desirable as a standard for judging the success of a work of literary art,” a view that is similar to Barthes’ ideas regarding necessity of the death of the author (Wimsatt and Beardsley 1233). The fact that the man who wrote the Jonny Gossamer novels is never revealed to the audience also serves to diminish his power and relevance in terms of ascribing meaning to the novels; his name is never explicitly stated, and the only time he is referenced at all is when Harry rejects his importance and the validity of his statements regarding his own novels. The protagonist of the novel is far more important to the film than the writer of the novels themselves. Clearly, the author of the series has no power to dictate meaning to his readers, in this case, Harmony and Harry, who go on to create their own meaning by living out one of his quintessential plotlines and becoming Jonny Gossamers themselves. However, depending on art forms of the past to create meaning and significance—as Harry and his companions do in the film—signals a lack of originality and nostalgia.

The spirit of using past forms and styles for the sake of nostalgia is heavily present throughout Kiss Kiss Bang Bang, and follows very closely ideas that Fredric Jameson presents in his work on postmodernism. According to Jameson, if modernism is generally defined as a time where individuality and personal identity were central to the texts of authors/artists and they prided themselves on creating new and original styles of writing, in postmodernism “there is... [a] sense in which the writers and artists of the present day will no longer be able to invent new styles and worlds—they've already been invented; only a limited number of combinations are possible.” All that seems to be left to authors/artists now “is to imitate dead styles, to speak through the masks and with the voices of the styles in the imaginary museum” (1851). These statements not only reflect an inability of authors to create original styles and stories, but also reflect the reality of American cinema today as presented to audiences by Shane Black; all that can be achieved in art forms now are pastiches of art forms from the past, never the past itself.

Black himself is imitating very specific art forms: the hard-boiled detective novel (as shown through structure and the driving force of the Jonny Gossamer series in the plotline) and film noir, which were cinematic interpretations of that literary genre. Kiss Kiss Bang Bang is a glorification of those older artistic styles, albeit in a slightly mocking manner, which allows Black his soapbox regarding contemporary norms.

While Barthes's and Jameson's theories of pastiche and death of the author certainly give Kiss Kiss Bang Bang an element of depth in one manner, postmodern theorist Linda Hutcheon provides another way of appreciating Black's complex plot structure. She states that the classic detective novel is “almost by definition intensely self-aware. Often this will take the form of a writer of detective stories within the novel itself” (72). Though Kiss Kiss Bang Bang is a film, its 8

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structure imitates a pulp fiction novel, and its plot is appropriated directly from the Jonny Gossamer series referenced throughout the film. Its self-referential and metafictional moments and strategies mimic the kind of detective novel which Hutcheon describes, through the pointed use of narration throughout the film. The narrator Harry, who is also the main protagonist in the plotline, has clear involvement and power over the presentation of events in the film. There are times when he stops the scene in the middle of a frame to say something like “oh shit, I skipped something. Damn it, this whole robot thing,” and then flashes back to a moment he finds particularly important to the progression of the plot. Obviously, the power that he has to stop, replay and rearrange scenes demonstrates his awareness that he is narrating events in his own life. There are even times when he addresses the audience directly, asking, “and you? How 'bout it, filmgoer? Have you solved the case of the dead people in L.A?” Harry is conscious of his role to the point where he is even cognizant of the fact that the film is being viewed in theaters by large audiences, further demonstrating the self-awareness of the film. Note the use of the word filmgoer as opposed to viewer which assumes that people are leaving their homes to watch the film—a very old-fashioned and nostalgic idea that harkens back to the time of pulp fiction novels and film noir, an idea that is not as common today as it was in the past. Harry’s awareness imitates that of narrators in the metafictional detective novels that Hutcheon speaks of, and also gives Black a device through which he can share his views on American cinema without directly implicating himself.

Though Harry’s position as narrator and character gives him the power to give meaning to the story, his actions and his narrative are an imitation of pulp fiction novels and film noir.

Kiss Kiss Bang Bang is what Jameson would call “metonymically” a nostalgic work. That is, a piece of art which is “very much within mass culture,” and imitates “the feel and shape of characteristic art objects of an older period” (1852). The nostalgic art objects are, in this case, noir films and hard-boiled fiction, while the film itself is within contemporary mass culture by way of being written and directed by a screenwriter who has produced massively popular action films. The decision to use big band music reminiscent of the 1940s, but created by a contemporary composer, and an introductory montage of credits that imitates the famous montages of James Bond films, only continues to glorify older films through current perspectives. Lack of originality and glorification of older artistic styles can even be seen in smaller nuances of the plot. The “bad guy,” Harlan Dexter, is foiled by Perry, Harry, and Harmony because his murder plot and cover-up strategy was taken from the Jonny Gossamer novels. Dexter chose to murder his daughter Veronica in a specific manner because, according to Harry, he “has all the goddamned books. He's read 'em all, they're in his house. Plus he was in that piece-of-shit . . . movie.” His crimes, though bizarre, are unoriginal and an imitation of what he has already seen (and imitated directly) in the Gossamer novels and the subsequent movie in which he played Gossamer. Thanks to the characters' extensive knowledge of Jonny Gossamer plots, they solve the case, but regardless of this, their reality and success does nothing more than follow the formula of the novels which it imitates: the good guy always wins. The characters are cognizant of this on some level, and this awareness gives Black the opportunity to mock Hollywood by making comments about how the mainstream film industry reuses plots and strategies over and over because they believe it is what audiences want.

Dialogue is where Black is most able to employ his derisive tone. Detective Perry explicitly discusses certain strategies employed in crime thrillers today and how they make no sense in real-life situations while he and Harry are being held at gunpoint. This dialogue is a direct criticism of Hollywood ploys, but is also self-mocking since Black himself wrote the scripts for 9

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those typical Hollywood movies. Perry says to Harry, “I was thinking some more about this reality versus fiction thing. Yeah, like, in the movies when a guy comes up, sticks a gun in some shmuck’s back and says ‘let’s take a walk,’ all of a sudden he’s got a hostage,” which happens to be exactly what is happening to Perry and Harry in that moment. Perry then confronts the absurdity of the situation and of the unreality of action-movie gimmicks by saying “well, in reality, the pros like about five feet of separation . . . so the shmuck doesn’t take the gun back and make him eat it!” as he takes the gun from the man holding him and Harry hostage. This scene is not only a commentary on contemporary cinema, but also employs the same metafictional elements of a hard-boiled novel, but in a self-deprecating manner. Within the same scene, another unrealistic characteristic employed by contemporary action films (and film noir as well)—the suspense of Russian roulette—is mocked through the death of the man who originally held Harry and Perry hostage. Harry attempts to be the gritty, hard-boiled detective depicted by novels by putting one bullet in his revolver and demanding information from the man he is now pointing the gun at. Typically in movie scenes, when the person with the gun “shoots,” the revolver clicks, and the endeavor ends in the surrendering of important information sans unintentional death. In this case, the first shot that Harry fires (which is fired before the man can give any relevant information) is the bullet, and he accidentally shoots the man in the head. This comes as a shock to the audience who is likely expecting the scene to play out in its typical fashion. Mostly, this scene is another remark about the absurdity of Hollywood reality.

The hospital scene directly following the big action blow-out where all of the bad guys die also seems to be a satirical jab at Hollywood and American cinema overall. During the final car chase and fight scene, the audience assumes that Perry has died because he and Harry were both shot by Dexter's thugs. Harry retains consciousness, but Perry does not. The audience then sees a scene with Harry in the hospital and Harmony at his bedside, joking back and forth. Perry then enters the hospital room in a wheelchair. Everything that has happened in the film thus far dictates that this is not the ending the audience was going to have: if this film glorifies the film noir tradition and the hard-boiled novel, should not the character who was fatally shot die? Harry is aware that the ending presented does not fall in line with what is expected or what makes sense in reality: “Yeah. Boo, hiss, I know. Look, I hate it too, in movies where the studio gets all paranoid about a downer ending, so, like, the guy shows up, he's magically alive on crutches. I hate that. I mean, shit, why not bring 'em all back?” The room is then filled by several characters who died earlier in the film, as well as Abraham Lincoln and other historical American figures for sarcastic, comedic effect. Obviously, these characters are not really alive, but their presence highlights the absurdity of this particular plot twist that is employed in popular movies time and again. It also demonstrates that this scene was a break in its style of imitation, and it would not have been the narrator’s personal choice as the equivalent of the hard-boiled antihero. This scene is one of Black’s most direct jabs at Hollywood, an opportunity he has been afforded as first time director and writer of a film. However, by employing sarcasm to criticize the film’s denouement, Black also points out his own hand in sustaining the popular gimmicks of mainstream Hollywood films by using this narrational strategy.

Black does more of this double-faced satire and brings the audience back to the nostalgic detective novel antihero in an unexpected scene (“The Epilogue”) where Perry confronts Harmony's sexually abusive father. Perry is the only licensed detective in the film; his suave and tough demeanor mimics that of a hard-boiled-esque detective in a way that Harry, who only imitates being a detective, cannot achieve as a bumbling, slightly moronic petty thief. Perry has no qualms about hitting Harmony's father, who is old and is hooked up to a breathing machine.

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He is the quintessential hard-boiled antihero: “vigorous-minded, hard . . . responsive to the thrill of danger, the stirring exhilaration of clean, swift, hard action . . . [He] knows the song of a bullet. The soft, slithering hiss of a swift-thrown knife, the feel of hard fists, the call of courage” even though he is really more of a supporting character to Harry (Smith 59). Harmony's father makes a point about being an old, weak man who has just buried his daughter to derive some sort of sympathy from the audience, but Perry has no sympathy. He simply tells him that he “buried [his] daughter 20 years ago”: the cold, hard-boiled truth. This scene achieves two things: it continues in this film’s tradition of imitating hard-boiled fiction and film noir in the most basic ways, and it also wraps up the film’s loose ends more nicely than Perry’s survival does, satisfying the audience. Black gets away with this “happy” ending because this kind of justice is classic to hard-boiled detective novels and manages to retain the gritty, antihero tone as opposed to one that seems overtly unrealistic and cheerful.

There are far more subtle but still pointed remarks made about contemporary American cinema in the film, but instead of openly critiquing directing strategies, he critiques the cruelty of Hollywood by showing the disparity between actors and everyone above them in the film industry's hierarchy. When Perry is on his way out of Harmony's father's house, he stops to watch a commercial. The commercial advertises a fictional beer for which Harmony played the waving girl earlier in the film. In this version of the commercial, there is a different woman taking Harmony's place, doing the special beer-brand wave. Coincidentally, this woman is one that Harmony berates toward the beginning of the film for being too old to get roles and make it in Hollywood. According to Harmony, the cut-off age for women in Hollywood is thirty. The replacement of Harmony with this woman in the commercial is, on the one hand, a continuation of the recycling of older styles as indicated by postmodernism: seeking the “past through our own pop images and stereotypes about that past, which itself remains forever out of reach” to satisfy our need for nostalgia (1853). On the other hand, it is an understated commentary on the stereotypes that Hollywood plays to: commercials and films will be created and redone with new women who can reproduce what was there before. The desperate, cookie-cutter Hollywood girls that Harry mocks throughout the film will have their fifteen minutes of fame, even if it is only in a silly beer commercial with no lines. Here, Black seems to be commenting on how easy it is for Hollywood to recycle not only ridiculous and unrealistic plotlines but also the repeated objectification of actresses to please their mass audiences.

Kiss Kiss Bang Bang attempts to do what many Hollywood films cannot do: establish a place for itself that cannot be classified as either high culture or low culture. In a film industry where there are movies that win Oscars and movies that win Razzies, Kiss Kiss Bang Bang is both a sophisticated and crude film. This further establishes the film as postmodern, due to its “erosion of the older distinction between high culture and so-called mass or popular culture” through the blending of popular strategies utilized in a highly-successful Hollywood film and elements of postmodern themes (Jameson 1847). Black’s self-consciousness is what makes Kiss Kiss Bang Bang so interesting, beyond its combination of complex theoretical ideas and its buddy-cop front. Postmodernism creates this kind of tension and confusion: if we are living in an era in which repetition is inevitable and we yearn for the past rather than create new texts, should we become vanguards and explicitly counter this movement, or should we give into its constructions and become popular? Barthes might say that it does not matter, given that the reader will derive meaning themselves from a work, regardless of what the author intended, but it still remains an issue for Black. It cannot be said that anything generated in this film is truly original or stylistically new, but Black is not alone in his mission to break out of stylistic 11

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constructions that are well received by audiences for the sake of art. Coincidentally enough, Raymond Chandler, the quintessential figure of hard-boiled fiction, once said of the plot formulas demanded by editors of pulp magazines: As I look back on my stories it would be absurd if I did not wish they had been better. But if they had been much better they would not have been published. If the formula had been a little less rigid, more of the writing of that time might have survived. Some of us tried pretty hard to break out of the formula, but we usually got caught and sent back. To exceed the limits of a formula without destroying it is the dream of every magazine writer who is not a hopeless hack. (viii-ix) Even the man to whom Black clearly feels some sort of nostalgic, artistic connection— otherwise, why would he use the titles of his novels as chapter titles in the film?—had the same formulaic issues that Black seems to struggle with. However, Black finds a way to alleviate some of his stress by openly mocking popular conventions in the film while simultaneously using them. Black has done what any artist engaging with popular culture hopes to achieve: create something clever enough to satisfy the artist within, and something popular enough so that mainstream audiences may also enjoy it.

Works Cited Barthes, Roland. "The Death of the Author." The Norton Anthology of Theory and Criticism. 2nd ed. New York: Norton, 2010. 1322-26. Print.

Chandler, Raymond. Trouble Is My Business. New York: Vintage, 1992. xiii-ix. Print.

Hutcheon, Linda. Narcissistic Narrative : The Metafictional Paradox. Waterloo, ON, CAN: Wilfrid Laurier UP, 1986. ProQuest ebrary. Web. 18 Nov 2014.

Jameson, Fredric. "Postmodernism and Consumer Society." The Norton Anthology of Theory and Criticism. 2nd ed. New York: Norton, 2010. 1846-53. Print.

Kiss Kiss Bang Bang. Dir. Shane Black. Perf. Robert Downey Jr., Val Kilmer. Distributed by Warner Home Video, 2006. DVD. Smith, Erin A. Hard-Boiled : Working-Class Readers and Pulp Magazines. Philadelphia, PA, USA: Temple UP, 2000. ProQuest ebrary. Web. 18 Nov 2014 Wimsatt, W.K., and Monroe Beardsley. "The Intentional Fallacy." The Norton Anthology of Theory and Criticism. 2nd ed. New York: Norton, 2010. 1232-46. Print.

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Technology: A Detective Device or a Fraudster’s’ Medium?

Patricia Suchan Accounting Major Patricia Suchan is preparing to attend the University of Notre Dame for her Master of Science in Accountancy after graduation in May of 2015. Patricia is excited for her future as a Certified Public Accountant and a Certified Fraud Examiner, as well as the role she will play in preventing and detecting fraud. After attending the Association of Certified Fraud Examiners conference in San Antonio, Texas, her interest in this subject piqued.

She was excited to explore the topic more in depth through her undergraduate research. Working with her mentor, Dr. Premalata Sundaram, greatly impacted Patricia’s studies at High Point University. After her first accounting class, she fell in love with the subject and has enjoyed learning from the entire department to solidify the specific areas she wants to pursue.

Abstract Technological advances have become a major component of both crime and prosecution. White collar crime and other illegal activities have increased due to technology. Anonymous programs, like Tor and Bitcoin, allow for illicit activity to take place in the open with the only risk of detection being human error. Law enforcement and other professionals involved in the detection and prevention of crime are also improving their skills with technology. Data analysis is enabling the detection of fraud and is allowing experts to compile the data in a more usable format, which in turn is more understandable for the common juror. Tactics such as Benford’s Law are increasingly taught at professional conferences in the field of forensic accounting and fraud examination to equip professionals to better detect ongoing schemes. Ultimately, it seems as if the crime fighters will always be trailing the criminals. Limited resources do not allow for law enforcement to be on the offensive as much as it would like. Unfortunately, the very best cybercriminals may never be found due to all of the devices that allow for anonymity on the internet. _________________________________________________________________________ Introduction

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echnology is a major component of almost every aspect of life today, from business to art, from food to dating, and from crime to justice. Criminals are increasingly discovering ways to use new technologies to perpetrate their crimes. This is especially true with white collar crime and other kinds of fraud. Conversely, crime fighters such as forensic accountants and certified fraud examiners have been enhancing their computer skills to detect the fraud, and 13

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ideally prevent future crimes from happening. There has also been an increase in the use of technology to assist in the management of case information so that a white collar criminal is not only caught, but is also brought to justice. This paper will explore many different ways that technology is used in relation to fraud and will paint a picture as to who is using it best, the fraudsters or the fraud fighters.

Technology and Criminal Activity The internet has enabled criminals to become more sophisticated with their operations.

With the automation of many processes in the business world, it has become easier for an employee, or an outsider, to manipulate a system for the purpose of stealing money and information. Several more recent developments are facilitating illegal activities. These developments include the dark web and the introduction of electronic currencies like Bitcoin.

With all of the technological advances, it certainly appears that criminals are doing well for themselves, so long as they don’t get caught.

The Dark Web

The Onion Router network, more commonly known as Tor, was originally developed by the U.S. Navy and was intended to allow law-abiding people around the world to be on the internet anonymously, or so is the claim made by Marc Rosenthal and Wade Roush for Technology Review (2006). Tor uses a worldwide network of volunteer-run routers (devices that control the flow of internet traffic) and will send each internet command through three routers chosen at random. Information sent through the system is designed with three layers and at each router one layer is removed so that at the next destination point, the information only knows the location of where it was last. This makes it nearly impossible to identify the origin of the information. Some legitimate uses for this system may include intelligence agencies monitoring foreign internet sites or a citizen of a tightly monitored country speaking out against the government (Rosenthal & Roush, 2006). However, some users have discovered other activities that can be facilitated on what is also often called the “dark web.”

In the past, the sale of illicit merchandise took place in dark alleys and back rooms. Now the buying and selling of illegal drugs, weapons, stolen credit cards, and even assassins, can be done on the internet on “dark market” sites, as is detailed in a Pittsburgh Tribune – Review article by Andrew Conte (2013). Dark market sites usually have “.onion” web addresses and can only be found using Tor. The currency of these transactions is usually Bitcoin, which is hard to trace and maintains the anonymity that is established by the use of Tor. Even if law enforcement was able to intercept the data of a transaction, they would not know the location or identity of the buyer or seller. A respected figure in the field of cybercrime fighting, Joseph DeMarco, who used to lead the unit at the U.S. Attorney’s Office in New York, is quoted as saying, “Do these technologies mean that there are some criminals who will never be caught? The answer is yes” (Conte, 2013). He indicates that the criminals they can catch are the ones that make mistakes, the ones of average intellect and even the smart ones who slip up, but they may never catch the brilliant criminals who are using the Tor network. It may be that the only way to identify someone on the Tor network is to intercept a message before it gets to the first relay or if the information being sent has something identifying in it (Conte, 2013).

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Recently the Tor network and dark market websites were in the news, including a story in Forbes by Ryan Mac, Kate Vinton, and Kashmir Hill (2014), because law enforcement agencies around the world made a coordinated effort to take down these operations. One of the most famous of these sites is called Silk Road, which was taken down in a public manner last year with the arrest of Ross Ulbricht. He operated the site under the name “Dread Pirate Roberts,” a reference to a character in a movie who passes on the fear-inspiring name to successors who will continue the work after the real Dread Pirate Roberts is done. Not long after the shutdown, Silk Road 2.0 was in business under a new Dread Pirate Roberts. In November of this year, Blake Benthall of San Francisco was arrested on charges of “conspiring to commit narcotics trafficking, conspiring to commit computer hacking, conspiring to traffic in fraudulent identification documents, and money laundering conspiracy” (Mac, Vinton, and Hill, 2014). Silk Road 2.0 is shut down, but it is likely not long before another springs up to replace it.

Bitcoin Concerns

Bitcoins are an interesting case beyond their use in dark market transactions. Bitcoins are a new form of virtual currency created in 2009. Matthew Ly (2014) explains in his article for the Harvard Journal of Law and Technology that each Bitcoin is essentially a bit of code that a user holds in a digital wallet, but that has no identifying information attached. A public ledger system on the internet records every Bitcoin transaction to try to prevent fraudulent transactions, but without identifying information, it is hard to trace anything if an error is uncovered. Many organizations and governments are still trying to determine how to handle Bitcoins. Virtual currency is different from “real” currency because it is not administered by a sovereign and the value is determined by public perceptions and trust. There is currently uncertainty as to what laws apply to Bitcoins and who should regulate them, and while the uncertainty exists, the criminals will play.

At the end of 2013, Nathaniel Popper (2013) reported for The New York Times about an unidentified Twitter user who was seen proposing a “pump-and-dump scheme” which would be squelched in financial markets, but in the world of Bitcoin goes unchecked. The user was asked about the scheme and responded that because there are no regulations, there is freedom to do whatever they can get away with. The user indicated that regulations would benefit the security of Bitcoins, but until measures are put into place, the schemes will continue, and this user will continue to be an instigator. Some foreign banks have banned the use of Bitcoin and have warned people who use them to do so at their own risk.

Because Bitcoins are computer code held in a virtual wallet, they were envisioned as an innovation to the way we spend money, but Popper (2013) warns they also open the door for hacking and theft. Thousands of Bitcoins can be easily stolen at once by those who know what they are doing, which can amount to millions in U.S. dollars. Even dark market websites are not immune to hacks. But when it comes to the aftermath of a discovered theft, little has been done.

The most frequent reason that Bitcoins are involved in an actual police investigation is when there is a bust of illegal operations such as the dark market websites. If the crime is only that Bitcoins are missing, there is not much that can be done due to the lack of regulation in the system. A major problem with the currency is that it is not classified (security, commodity, etc.), so no organization is stepping up to monitor. The Securities and Exchange Commission did pursue one case involving Bitcoins because the schemer, who operated a Ponzi scheme, was using Bitcoins like securities. But other foreign authorities have released definitions of Bitcoins 15

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that would classify them as commodities, which would place them in the jurisdiction of the Commodity Futures Trading Commission (Popper, 2013).

One governmental agency that has decided about the treatment of Bitcoins is the Internal Revenue Service. Since Bitcoins can generate income for the user, the IRS has to have a way to tax the income. According to Ly (2014), the IRS has decided that Bitcoin will be taxed like property and not like currency. As such, Bitcoins can generate gains and losses for the user because of the fluctuation in the value. Some businesses are beginning to accept Bitcoin as payment and they need to include that revenue with that which was earned in the native currency, USD. The problem with Bitcoins and taxes are that the anonymity of the code of a Bitcoin allows for an entity to not report income attributed to Bitcoin. It is almost impossible for the IRS to verify if tax evasion is happening. Eventually the rest of the government will not be able to ignore responsibility any longer and will determine the best method of regulation. Until then, hacking and frauds will likely continue, with few criminals being brought to justice (Ly, 2014).

Financial Institutions Targeted

Of course, financial institutions dealing in normal currencies are also targets for attack.

Security breaches at banks and credit unions put many at risk for identity theft. While the methods that criminals use evolve with technology, Natasha Chilingerian (2011) of the Credit Union Times points out that the end goal has remained the same for decades; steal money using privileged information. Mobile devices and social media are the newest targets for fraudsters, but methods have stayed the same in recent years: hacking, manipulation, and phishing. In addition, credit unions are seen as a bigger target than banks since they are usually smaller and less prepared to prevent, detect, and handle an electronic infiltration. Also, individual customers are the biggest target as they are least likely to be aware of malware or other viruses that can steal information. With financial institution frauds there is more that can be done to protect the clients and to trace the culprit, but it still may only be possible to inform the customers that their data have been compromised. Justice may never be served (Chilingerian, 2011).

Crime Fighters and Technology It appears fraudsters are having a great time with all of the new technology, but law enforcement is keeping pace. With the goal of detecting fraud, data are the most important tool that a fraud fighter can use. Many companies today use programs, such as SAP applications, that connect all aspects of the business in one system, which connects to everyone through the internet. This can create vulnerabilities, but also more easily allows for data to be pulled for analysis. Trends in occupational and management fraud can be looked for based on past company data, or industry norms.

Technological Tools

Data trends have emerged over the years and are now commonly used in a fraud examiner’s investigation. Darren Tapp, CPA and David Burg (2001), both professionals in the field of dispute analysis and investigation, call attention to one such tool known as Benford’s Law. 16

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Based on a phenomenon identified as early as 1881, Benford’s Law grew out of the 1938 work of Frank Benford. Logically, one would assume that each digit is equally likely to be the first in a number. Benford’s work empirically determined that this is not the case. The digit one is first 30 percent of the time, two appears 18 percent of the time, and each following digit has a decreasing percentage. Since many frauds are perpetuated over a long-period of time, this method can be used to discover anomalies in large sets of data. This method can also be adapted to examine the last digit or cent amount of a transaction, as these will have their own normal distribution that can be manipulated by fraudulent activity (for example, a fake transaction may be $4,999 to avoid additional screenings that occur at a $5,000 threshold, or may have no cents due to a lack of creativity on the part of the thief). Benford’s Law will not detect frauds that occur on a one-time or limited basis, but is overall an effective method for finding frequent fraudsters (Tapp & Burg, 2001).

Relational databases, used for storing and sorting data sets, are one of the best tools for finding and fighting fraud. Proper database design and implementation are vital to any use of relational databases, but can be especially important when looking for elements of fraud.

Ideally, data are broken down into small parts that have identifiers, which can then be reassembled into the complete set of information, or any subset thereof, for quicker examination of information from across areas of a company. For example, if street address and zip code are two cells in both a table of vendor contact information and a table of employee contact information, the two can be compared from both tables for any overlap. An employee may set up a fake vendor and use their home address as the location. If all the information for a vendor is stored in a single cell and all the information for an employee is stored in another cell, it may be hard to parse out the relevant pieces for comparison and detection.

Crime Fighters

Some of the best cybercrime fighters in the country today are professionals under thirty-five.

One such person is Sofia Hussain, who currently works with the Securities and Exchange Commission and who was recently highlighted in an article of The Washington Post (Helping the SEC, 2014). Her knowledge of technology and data analytics as a forensic accountant has greatly aided the government in busting even the most complex cases of securities fraud. Not only does she collect and interpret data from known cases, but she also works proactively to create models and algorithms for the detection of wrongdoing. Hussain’s work uncovered a $500 million Ponzi scheme in time to return almost half of the money to the victims. The SEC’s chief of the Center for Risk and Quantitative Analytics said that Hussain “got the attorneys and the accountants aware of the importance of electronic data and the advantage of using analytical tools in the investigative process” (Helping the SEC, 2014). In the world of fraud investigation, which is still often dependent on an actual “paper trail,” she is an impetus in going digital, which should improve efficiency as well as allow for better data analysis.

With the speed at which technology is developing and improving, it is important to keep up with innovation. Hussain has been able to do just that. She identified a new software package that has proved invaluable in examining phone records during insider trading cases. Hussain also worked to improve the SEC’s use of visualization tools. With forensic accounting and fraud examination, the job is not just to uncover the fraud, but also to be a subject matter expert and be able to present the information in an understandable method in court. If the information is too technical for a judge and jury, the intricacies of a case may be lost and justice may not be served.

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Technology is going to play a huge role in future years in finding and convicting criminals in all kinds of cases, especially those of fraud (Helping the SEC, 2014).

Fraud Education

At the Association of Certified Fraud Examiners 25th Annual Global Fraud Conference, there were two whole tracks of seminars over several days dealing with the topics of technology and data analytics. These seminars provided many professionals with invaluable knowledge on how to detect fraud using technology based on the successes of others, but one has to wonder if this information may benefit criminals unintentionally. Information released about how fraud is detected can show fraudsters some pitfalls that they will then be better able to avoid. If criminals are aware of Benford’s Law, they will be more careful in selecting their fraudulent transaction amounts to avoid detection. Even dumb criminals will think twice about listing their home address as the address of a fake vendor once they learn that someone else was caught that way.

It is interesting to note that in the case of the busts of the dark market websites, very little information was revealed, other than that undercover agents were used, to allow for the same methods to be used in future busts. Nevertheless, this conference and others like it are a huge boon to the field and are helping teach young professionals how to be successful in an ever changing career.

Conclusion Fraud is a major concern in this country, and around the world. It is projected that the average organization loses five percent of revenue to fraud each year. The role of the forensic accountant is growing in the law enforcement community and more emphasis is being put on the use of technology to combat fraud. The crime fighters are getting better at detecting criminals and bringing them to justice. But, at the same time, the criminals are evolving and becoming harder to catch. As Demarco said, we may never catch the most brilliant of the cyber criminals because if they do not make a mistake, the anonymity of the software will protect their identity forever. While there is much being done to detect fraud, it remains to be seen if prevention methods will ever be fully effective. It seems as if the crime fighters will forever be tailing the criminals. Currently, it appears that technology is indeed a fraudster’s best friend.

Moving forward, a way must be found to turn the tide. Professionals in the field will need to learn from the past in order to change the future. What led certain individuals to commit a cybercrime? Can we identify at-risk individuals and entice them to join the fight for justice?

Answering these questions could have immeasurable benefits to the field of fraud investigations.

It will also be beneficial for the crime fighters to think like a crook. Each new technological advance should start a new discussion of “how might I use this tool for illegal activity?” If crime fighters can identify potential vulnerabilities, solutions can be created and problem areas can be more closely monitored. It will take a coordinated effort on the part of fraud investigators, law enforcement officers, and psychologists to change the current climate of fraud, but the fight against technological fraud can be won.

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References

Chilingerian, N. (2011). RSA, epsilon breaches show fraud trends pointing to online and mobile channels. Credit Union Times, Retrieved from Proquest.

Conte, A. (2013, Jun 23). Tor enables drug sales, hiring of hit men. Pittsburgh Tribune – Review.

Retrieved from Proquest.

Helping the SEC crack securities fraud cases using cutting-edge technology and data analysis: Sofia Hussain has helped investigators crack sophisticated securities fraud cases through the use of the latest technology and data analytics. (2014, May 13). The Washington Post.

Retrieved from Proquest.

Ly, M. K. (2014). Coining bitcoin’s "legal-bits": examining the regulatory framework for bitcoin and virtual currencies. Harvard Journal of Law & Technology, 27(2), 587-608. Retrieved from http://jolt.law.harvard.edu/ Mac, R., Vinton, K., & Hill, K. (2014, November 6). Feds Shutter Illegal Drug Marketplace Silk Road 2.0, Arrest 26-Year-Old San Francisco Programmer. Forbes. Retrieved from http://www.forbes.com Popper, N. (2013, Dec 06). In the murky world of bitcoin, fraud is quicker than the law. The New York Times. Retrieved from Proquest.

Rosenthal, M. & Roush, W. (2006). Secrets of the onion router. Technology Review, 109(4), 66.

Retrieved from Proquest.

Tapp, D. J., & Burg, D. B. (2001). Using technology to detect fraud. Pennsylvania CPA Journal, 71(4), 20-23. Retrieved from Proquest.

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Don’t Be Scared Dan Lomas Dan is a junior business administration major who has discovered a passion for helping others. He strives to find ways to make accounting an easier subject for future students and is inspired by his mentor, Dr. Sundaram, who helped open his eyes to a more fulfilling experience in accounting. Dan is grateful that his professors provided guidance and recommendations that broadened his knowledge throughout his three years at High Point University. Dan hopes to pursue a professional lacrosse career and plans on entering the marketing industry.

Abstract I wrote this poem with the hope of making young business students at High Point University lose the fear that is commonly associated with accounting. The poem itself is a step by step simplification that helps ease uneasy feelings towards the accounting cycle. Writing this poem was fun for me as it gave me a sense of accomplishment as I had overcome my former fear and nervousness towards accounting. My hope is that this work can help students see the fun associated with accounting in order to increase interest in both the course and the field of work.

D

on’t be overwhelmed, it’s simple if you practice Dr. Sundaram declared; We can learn accounting together Don’t Be Scared!

Learning accounting is easy when you simplify the actions; Although you may not believe me, don’t be worried, it’s not about fractions, If you learn to use Excel it can make your life a breeze; All this chance for earnings can be a tease!

First you must know, credits are on the right; And those debits, they’re on the left; look you’re beginning to see the light!

Assets must equal liabilities and owner’s equity every time; Or else you’ll be stuck for hours still singing this rhyme!

First are the entries you must place in the journal without a doubt, Then you can move to posting in the General Ledger it’s a very simple route!

If you balance now, you may have to adjust; But it’s not always a must!

Once balanced we can carry on; Don’t worry the night is always darkest before the dawn!

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Look at you you’re moving to the income statement now; Where the hope is to report earnings if the numbers will allow!

Revenues minus expenses is the simple method here; Look at all that profit beginning to disappear!

Owner’s equity cannot be forgotten from the balance sheet; Or else you won’t balance and that will be far from a treat!

Oh no you’ve discovered you don’t balance something went wrong; You must not have subtracted depreciation from your building Don’t worry it won’t take long!

If you have a loss, don’t you worry it’s always difficult to make some dough; Once you reach the end you will have your income before taxes ready to show!

Once you’ve found the net book value the assets should equal the liabilities and owners’ equity without a doubt; Look at that you’ve learned the accounting cycle, it’s time to scream and shout!

Don’t forget to subtract income tax from this income number you found; We’re at the end of the income statement glad you stuck around!

Don’t be scared of accounting because of the numbers, its only simple math; But you must practice if you wish to continue down the accounting path!

Now we must list retained earnings for your firm; Don’t worry it’s simple you shouldn’t squirm!

With this verse you can now understand; Although it may not always work out as you planned!

Take those earnings and subtract the dividends you declared; Look at that, your knowledge of the accounting cycle is becoming less impaired!

Now to the balance sheet we must travel; Make sure to post total assets and liabilities or this part will be rough as gravel!

You may be frightened at first but it’s only addition and subtraction; Just take it step by step and post every transaction!

Don’t be overwhelmed it’s simple if you practice Dr. Sundaram declared; We can learn accounting together Don’t Be Scared!

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Frank the Fish: A Case Study of Interactive, Interdisciplinary Group Poetry Workshops in an Assisted-Living Facility Tayla Curran Tayla Curran graduates in May of 2015 with a degree in biology and a psychology minor. After taking Narrative Medicine in Action, Tayla felt drawn to study the effects of poetry and storytelling in the context of adult-care facilities. She enjoys the meaningful contact it provides to an underserved population. After graduation, Tayla will be obtaining her master’s degree in Narrative Medicine at Columbia University. She loves seeing joy on the face of a poetry workshop participant; she also appreciated observing marked changes in the dynamics of the assistedliving facility during the period of the HPU LifeLines program. Tayla credits her mentor, Allison Walker, for tremendously impacting her studies by supporting her through her undergraduate career. She believes it would not have been complete without the mentorship and experiences that undergraduate research provided her.

Tayla received a departmental award in art for this paper at High Point University’s Honors Day on April 22, 2015.

Abstract In this case study, a series of collaborative poems are analyzed through the lens of the five dramas of illness (drama of genesis, drama of emotion work, drama of fear and loss, drama of meaning, drama of self), a concept proposed by scholar Arthur Frank. Using the program HPU LifeLines, group poetry workshops, which generated the collaborative poems, were held weekly in an assisted living facility for three months. Over the series, the content of the poems shifted from the cyclic, debilitating, lower order dramas of emotion work and fear and loss to the advantageous, empowering, higher order dramas of meaning and self, indicative of subconscious, positive changes occurring in the participants’ thinking resulting from the workshops. Previously demonstrated to have tangible health benefits, poetry can be an artful and resourceful method to express oneself, tell a story and navigate through illness. This analysis furthers the pool of evidence that poetry and storytelling offer meaningful contact, and would be a helpful and valuable addition to help replace the solitude that often dominates adult-care facilities.

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Poetry, Storytelling, and Medicine

S

torytelling is embedded in our humanity. Dating back to 40,000 B.C., the cave paintings in Lascaux are the oldest works of parietal art, and depict the ability of humans to interpret and attach meaning to their surroundings.1 Regardless of genre, the identity of the story and the meaning of the story are inextricably intertwined. By extension, story is an artful expression of self, and can be used to explore obstacles that one encounters throughout his or her lifetime. Illness, to some extent, is an inevitable obstacle that every individual must confront at some point. Contemporary research in the field of narrative medicine demonstrates that poetry, a form of storytelling, has tangible and intrinsic health benefits.2

Methodology In this case study, hour-long weekly poetry workshops were run in an assisted living facility over the course of 12 weeks, utilizing the structure set forth by the program HPU LifeLines, which is detailed below. Approval was granted from High Point University’s Institutional Review Board, and informed consent was obtained from all participants. One series of workshops was held on an assisted-living floor (group A); the other series was held on a memory-care floor (group B).

By and large, the participants of each of the workshop series were the same each week.

Designed by Allison S. Walker, an instructor and poet in the Department of English, for use at High Point University, HPU LifeLines is a medical humanities-based program similar to local, regional and national projects that integrate the arts into aging. It is the model by which HPU student-facilitated group poetry workshops are run at assisted-living facilities. Workshops allow participants to express themselves through poetry in a low-risk, judgment-free environment.

Workshops focus on being present in the moment, thus making them ideal for individuals who may be afflicted with some form of dementia. Workshops have a fundamental structure to ensure consistency, yet allow for variation through a constantly changing theme selected to represent the interests of the participants.

The general structure of these workshops begins with participants sitting in a circle with the student facilitator to create an environment conducive to sharing, listening, and equality. Three poems are chosen to reflect the theme, as well as an auditory component, typically a song that was popular during participants’ youth. This is an additional, effective way to connect to some of the later-stage dementia participants. Generally, two poems will be famous, and at least one of these will rhyme. These are often poems that many participants memorized at some point during their school career. It has been shown that individuals with late stage dementia who cannot form full sentences can recite songs that were memorized during childhood, and by extension,

1

Tedesco, Laura Anne. "Lascaux (ca. 15,000 B.C.)". In Heilbrunn Timeline of Art History. New York: The Metropolitan Museum of Art, 2000–. http://www.metmuseum.org/toah/hd/lasc/hd_lasc.htm 2 Karen A. Baikie and Kay Wilhelm. "Emotional and physical health benefits of expressive writing." Advances in Psychiatric Treatment 11.5 (2005): 338-46. Print.

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poetry.3,4 The third poem is typically a contemporary non-rhyming poem found on a credible Internet poetry website. The third poem emphasizes that not all poetry has to rhyme, a concept that many of our participants are unaware of, and generally serves as encouragement when writing the collaborative group poem later in the workshop.

Workshops begin with the facilitator introducing the theme, passing out sensory props and reading through the first poem twice. Sensory props are varied each week to accompany the theme, and range from live flowers and tree bark to stuffed animals and passports. Then, the facilitator employs the technique call-and-response, in which he or she recites, or calls out, a line of poetry and the group repeats it back, progressing through the poem together.5,6,7 After this, participants are asked how they want to act out certain lines of the poem, and their gestures are incorporated. In addition to its rich poetic history, recitation of song, and by extension poetry, has also been shown to reduce stress, improve immune system function, stimulate neural connections and improve mood. 8 After reciting the poem together, the workshop segues into a conversation about the poem. This ranges from how the poem made the participants’ feel, to stylistic observances, and/or to what the poem reminded participants of, with the range and complexity of discussion dependent on the cognitive ability of the group. This kind of meaningful introspection has been shown to strengthen immune system function, decrease blood pressure, reduce absenteeism from work, reduce illness-related health center visits and reduce symptoms of chronic illnesses.9,10 ,11,12 When participants have finished discussing the first poem, this process is repeated with the second and third poem. Between the second and third poem the auditory segment is incorporated. In total, this segment lasts approximately thirty minutes.

Upon completion of this portion, the workshop segues into the creation of a group poem. The facilitator asks the group if there is anything in particular that they would like to write about, and uses their suggestions. Typically, the participants want to write about the theme that the poems focused on. However, there is the odd day when participants choose to write about something completely different. To create the group poem, the facilitator asks each individual a sensoryengaging open-ended question. For example, if a group were discussing trees and nature, the facilitator might ask, “What do you see from the top of a tree?” or, “What does tree bark feel like?” Sensory-based questions allow the participants maximum engagement and creativity.

3

Ashley D. Vanstone and Lola L. Cuddy. "Music Memory in Alzheimer Disease." Aging, Neuropsycholoogy and Cognition: A Journal on Normal and Dysfunctional Development 17.1 (2009): 128. Print.

4 Lola L. Cuddy and Jacalyn Duffin. "Music, memory, and Alzheimer’s disease: is music recognition spared in dementia, and how can it be assessed?" Medical Hypotheses 64.2 (2005): 229-35. Print.

5 Working memory, the immediate short-term memory involved in processing memory, has been demonstrated to be preserved in individuals with Alzheimer’s disease. This type of memory is utilized during call and response. Nicola Mammarella and Beth Fairfield. "Emotional Working Memory in Alzheimer's Disease." International Journal of Alzheimer's Disease 2014 (2014): 6. Print.

6 Oral poetry and storytelling dates back to ancient times where Bards were trained keepers of tribe traditions and memories. “ What Is a Bard?, 2014. Web. <http://www.druidry.org/druid-way/what-druidry/what-druidism/what-bard>.

7 Call and response was used by African American slaves when working in the fields, and influenced the creation of ragtime music. Slavery and the Making of America . The Slave Experience: Education, Arts, & Culture, 2014. Web. <http://www.pbs.org/wnet/slavery/experience/education/history.html>.

8 Rosie Stacy, Katie Brittain, and Sandra Kerr. "Singing for health: An exploration of the issues." Health Education 102.4 (2002): 156. Print.

9 Martha Francis and James Pennebaker. "Putting Stress Into Words: The Impact of Writing on Physiological, Absentee, and Self Reported Emotional Well Being Measures." American Journal of Health Promotion 6.4 (1992): 280-7. Print.

10 J. M. Smyth, et al. "Effects of writing about stressful experiences on symptom reduction in patients with asthma or rheumatoid arthritis: a randomized trial." JAMA : the journal of the American Medical Association 281.14 (1999): 1304-9. Print.

11 Keith J. Petrie, et al. "Disclosure of trauma and immune response to a hepatitis B vaccination program." Journal of Counseling and Clinical Psychology 63.5 (1995): 792. Print.

12 Laura A. King and Kathi N. Miner. "Writing about the perceived benefits of traumatic events: Implications for physical health." Personality and Social Psychology Bulletin 26.2 (2000): 220-30. Print.

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Proceeding around the circle and asking each participant a question, the facilitator records his or her verbal responses verbatim, allowing the participant to take ownership and pride of his or her line. If a participant is nonverbal, the facilitator weaves in a nonverbal gesture he or she may give, such as a smile, clap or nod. After each of the participants has contributed to the poem, the facilitator reads their group poem aloud. Then, the facilitator asks the participants what they would like to title it, and whatever consensus the group reaches then becomes the title. This portion of the workshop lasts approximately thirty minutes. The collaborative group poems that were produced by this method will be the focus of this article.

Analysis of Group Poems Scholar Arthur W. Frank proposes five dramas that represent conflicting forces that are often, though not solely, present in individuals’ illness narratives. Through these dramas the personal narrative can be interpreted. These are the drama of genesis, drama of fear and loss, drama of emotion work, drama of meaning and the drama of self.13 While these dramas can all be necessary, empowering parts of a narrative, if not beneficially utilized, they can also cripple healing and cause an individual to be stuck in a cyclic, debilitating drama.

The drama of genesis describes the origin of the illness, and by naming the origin, taking power over the illness.14 The drama of emotion work is the act of masking one’s emotions for selfpreservation.15 The drama of fear and loss can be debilitating if fears are not named, and empowering if they are.16 The drama of meaning represents finding significance in the journey of illness, while the drama of self represents the process of self-discovery through illness.17,18 In a retrospective analysis of the group poems written over the 12-week HPU LifeLines workshop series, both groups A and B exhibited a shift from the presence of debilitating themes in their collaborative poems to empowering, healing themes. While these changes were likely subconscious, especially for group B, they further the pool of evidence that suggests the power of poetry to provide therapeutic benefits to participants, both consciously and subconsciously.

In the beginning of the session, both group A and group B began with poems that contained basic diction, frame, form, plot, and by extension, limited details from their personal lives.19 This is reflective of the drama of emotion work, as participants were unsure of how much would be socially permissible to share from their personal lives. While the participants did live together in the same facility, those in group A admitted that they were not very close with the other residents and rarely interacted beyond a superficial level. Also, many of those in group B either believed that they had not met the other residents before, or that they were only visiting the facility for the

13

Arthur W. Frank. "Five Dramas of Illness." Perspectives in Biology and Medicine 50.3 (2007): 94. Print.

Frank 381.

Arlie Hochschild. The Managed Heart : Commercialization of Human Feeling. Third ed. University of California Press, 2012. Print.

16 Frank 388.

17 Frank 389.

18 Frank 392.

19 According to Charon, a close reading is necessary for a “nuanced understanding and appreciation” of stories that are told. Frame, form, time, plot and desire all contribute to a reader’s understanding of the story, in this case, the poem. Rita Charon. Narrative Medicine: Honoring the Stories of Illness. 1st ed. Oxford University Press, 2008. Print.

14 15

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day and they would return home that evening. Misinterpretations of this kind are common among individuals suffering from dementia.

In the second week, the participants continued to explore the extent to which it would be socially permissible for them to share. While still engaging in emotion work, participants were able to embody a bird (the theme of the workshop) and give responses from the bird’s point of view.

The residents appeared to take comfort in the fact that what they said was not a direct reflection of them, but rather the bird, evidenced by the increased structural and thematic complexity.

Personal details began to enter the poems, indicating the participant’s increasing comfort with each other and the environment of the workshops.

If I were a bird I’d fly for a while and go back home, Home in Pennsylvania …

I’d try to learn to fly where people won’t bother me, Or shoot at me!

-Twinkle, Twinkle, Little Star by group B In the following weeks, the presence of personal details gradually increased, accompanied by the lessening of emotion work and the introduction of drama of fear and loss.

Sitting on a limb sheltered out of sight They’d be interested in getting food, …

Everyone going away from friends, Me well, but not forget.

-The Night Owl by group A While indeed the concept of mortality affects everyone, aging adults in nursing homes are exposed more to mortality, and think about it more that the general population.20 Issues stemming from group A’s mortality began to expose themselves in the poems. One needs to understand and accept his or her mortality in order to not be lost to the drama of fear and loss.

However, if this becomes an ever-present thought in one’s mind, it can “multiply in silence”21 and lead to a cyclic, debilitating fear that traps the individual for the rest of his or her lifetime.

Group B’s poems confront similar issues.

Birds that are flying in and out, Squirrels climbing from tree to tree …

If trees could talk they would do a lot of sighing because it is in their nature -Trees by group B

20 There is conflicting evidence regarding an inverse or direct relationship with age and death anxiety. However, studies indicate that adults in nursing homes may experience more death anxiety than adults that live independently. B. V. Fortner and R. A. Neimeyer. "Death anxiety in older adults: a quantitative review." Death studies 23.5: 387-411. Print.

21 Frank 388.

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Trees are an interesting element of the above poem. They are a physically old, sturdy organisms, whose lifespan dwarfs that of many of the other living creatures, and whose role is critical to the ecosystem. It is plausible to imagine that the “flying in and out” might refer to the cycle of other residents passing away, and new residents entering, an event that has been demonstrated to increase anxiety towards death.22 The squirrels, with their ability to climb, may represent youth, full of strength and vigor. These are qualities that the residents lack, yet often reminisce on, a feeling perhaps indicated by the “sighing” of the trees.

Group A also continued to grapple with the drama of fear and loss as an overwhelming force in their poems.

A narrow corridor clumps them together.

About 20 people passing by.

They’re all looking for their friends, To say hello. …

There’s always people passing by -Dinner at Eight by group A The intensity and urgency of being “clumped” in the “narrow corridor” is palpable. This is a crucial point for both the groups. The drama of fear and loss distinguishes whether individuals either are “consumed by fear or…articulate loss and fear sufficiently to hold them at bay through dialogue.”23 If fear is all-consuming, it is impossible to establish meaning and significance to self. If this becomes reality, then there is a grim road ahead for the individual. If one is to take control of the drama of fear and loss, one must first speak of the fear.24 Similar to storytelling, by engaging in dialogue, one is able to act out and live the experience in a low-risk environment with little fear of the repercussions, since it is at the will of the speaker, and therefore, contained in a controlled environment. The goal of poetry with illness narratives is to allow individuals to name their fears, and thus “keep them at bay.”25 So far, this is the closest group A has come to naming death and mortality, with the line, “There’s always people passing by,” which literally represents individuals passing by for meals, but also figuratively from this life.

In both groups, we see the above poems as a turning point where, collectively, they were able to name their fears, and allow drama of meaning to replace drama of fear and loss.

He’d like to swim in water He would swim close to the bottom, Swimming and diving round and about until he finds something -Frank the Fish by group B The fact that this poem takes place in the abundance of water is crucial, as it is a substance that is imperative to survival. Finding significance in the journey (the drama of meaning) emerges as

22

B. V. Fortner and R. A. Neimeyer. "Death anxiety in older adults: a quantitative review." Death studies 23.5: 387-411. Print.

Frank 388 24 Frank 388 25 Frank 388 23

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the theme, allowing the group to “keep telling a story that leads to more problem finding.”26 By breaking through the superficial, the participants are able to produce work that is meaningful to them, and in doing so, they are able to reap the benefits that introspective writing can provide.27, By naming the fears, the groups have taken power over them, and a shift towards themes encompassing the drama of meaning emerge within the rest of their work. Below, the groups are no longer engaging in emotion work and trying to mask their feelings, but rather allowing vulnerability and expression of themselves, an act that allows them power over their illness and control over their healing.

I hear lots of firecrackers, Things exploding and popping.

Fireworks can be frightening because they’re so noisy. “ooh” “aww” I smell New England and America.

The children go way on up to Trinity Church We enjoyed seeing from hills and mountains the beautiful country, How beautiful, what we are seeing, Pilgrimage to the shrine, especially Mary feast We’ve been blessed as a country -Ode to 4th of July by group A If the sun could talk it would say, “I am beautiful and warm and comforting. Come see my beauty.”

-Red by group B Above contains the most vivid sensory details present in the poems to date, enabling affirmation of their journey, and freeing them to grapple with the drama of self. 28 The drama of self is the self-doubt throughout the process of trying to make oneself whole again after an illness, and upon achieving this, reaching self-discovery.29 Therefore, the drama of self is closely intertwined with the drama of meaning.

You get little drips at first, Then it gets bigger and noisier. …

A soft dribble, Or scary, with a hurricane.

-Walking in the Light Rain by group A The interplay of the two intensities of rain, the dribble and the hurricane, is analogous to one’s own thoughts during a struggle. Drips precede a hurricane, and could also symbolize the fear that one minor problem could escalate into an inundation of problems. Interestingly enough, the

26

Frank 389.

Karen A. Baikie and Kay Wilhelm. "Emotional and physical health benefits of expressive writing." Advances in Psychiatric Treatment 11.5 (2005): 338-46. Print.

28 Frank 389.

29 Frank 392.

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group chose to end with the image of the hurricane, which, while figuratively dramatic, may be indicative of some underlying struggle within the self, and inability to affirm the drama of self in a positive, healing manner.

In addition to the five dramas of illness, Frank proposes dividing delivery of healthcare into three time frames: pre-modern times, modern times, and postmodern times. He proposes premodernism as the time period in which individuals did not understand or have words to describe illness; it was simply something that happened.30 Subsequently, modernism is defined as the time period where illness is dominated by both technical medical language and the complex treatment for the illness.31 Individuals experiencing illness feel a need to make their lives complete in the same way after the illness as they were before. Juxtaposing, postmodernism is the need to understand, incorporate, and give meaning to the illness and its place in the individual’s life after experiencing illness. The individual is forever changed as a result of the illness; therefore, their life is never complete in the same sense that it was before the illness. It is important to note that many individuals still embrace modernistic views, and there is no clear ending to modernism and beginning of postmodernism. Rather, postmodernism is a viewpoint born out of modernism, that began gaining traction in the twenty years before publication of the book in 1995.32 The sun feels bright and refreshing after the rain.

Sometimes it smells good if you’re in a bunch of bushes.

It smells clean because it has washed away odors out of the shrubs and the trees.

I like to do whatever I was doing before the rainstorm, continuity.

If the rain could talk it would say, “Get in the house and stay there!”

-The Need of Water by group B The majority of the participants was born in the 1920’s and 1930’s, and therefore grew up in the period of modernism. Subsequently, it is likely that the poem above reflects the participants’ need to make themselves complete after an illness, evidenced by the desire for “continuity.” In order to achieve this feeling of completeness, the illness must be understood and interpreted by the individual. The group poetry workshops provided the framework and environment for individuals to do just this. By achieving “continuity,” the individuals were able to utilize the workshops in a manner that allowed them to gain ultimate control over their illness, an outcome made possible by the group poetry workshops.

Discussion There is a need in the field of narrative medicine to produce more quantitative data in addition to qualitative data. In this case study, we also embarked on the process of administering affective surveys in the immediate time before and after workshops to measure tangible health data points.

Throughout the process, eight different surveys were developed and adapted to meet the needs of and demonstrate sensitivity towards the participants, resulting in a limited time frame in which to administer the finalized survey, and subsequently, an inadequate sample size. Another study is

30 31 32

Arthur W. Frank. The Wounded Storyteller: Body, Illness and Ethics. Chicago: The University of Chicago Press, 1995: 5. Print.

Arthur W. Frank. The Wounded Storyteller: Body, Illness and Ethics. Chicago: The University of Chicago Press, 1995: 5. Print.

Arthur W. Frank. The Wounded Storyteller: Body, Illness and Ethics. Chicago: The University of Chicago Press, 1995: 4. Print.

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planned for the spring of 2015 to collect data using the finalized survey and study the effect that the workshops have on participants’ perceived feelings of tiredness.

Future studies may examine the effects of the workshops on student facilitators, who may potentially reap the same tangible health benefits of participants. Student facilitators are experiencing a drastic, unfamiliar change in their lives as they shift from dependent living at home to independent living at college, a change that is analogous to an elder individual’s shift from independent living to dependent living in a nursing home; both groups need to navigate new social territory and explore where they fit into the social structure. The act of leading poetry workshops and engaging in discussion about common themes with the participants may prove therapeutic and informative for both young and old.

While it may be entirely subjective support, the participants and the Facility Director where these workshops were conducted provided testimonial evidence to the effects the group poetry workshops had on both the environment of the nursing home and on themselves personally. One participant commented, “Laughing and joining in camaraderie gives us energy.” The Facility Director noticed, “increased mental stimulation and social activity” among the residents of the nursing home, even outside of the specific times of the workshops. In one workshop, we had finished reading The Jabberwocky by Lewis Carroll, and I asked each participant his or her thoughts on the piece. One resident had been regularly attending workshops, but as a consequence of his dementia, was often in his own world and had difficulty connecting with others around him. Furthermore, he suffers from severe aphasia and cannot produce decipherable words. I crouched down so I was in his field of view, and asked him his thoughts on the poem, expecting his usual smile and nod. Instead, he looked me right in the eye and said, clear as day, “You’re connecting.” What an honor it was that he allowed me to enter his world, to be with him for a moment, no matter how brief.

The HPU LifeLines program provides the foundation with which to traverse the age gap and connect generations in a therapeutic and engaging manner. It is a low-cost option that can be brought to government-funded and privately-owned adult-care facilities. In the future, the program hopes to train more facilitators and bring the group poetry workshops to other adult-care facilities throughout the country. While providing the meaningful interaction that is often craved, yet ignored, in adult-care facilities, the stigma associated with aging can be reduced. Aging need not have a negative connotation. HPU LifeLines brings young and old generations together; revealing to them that each has a unique, impactful story to tell. If implemented on a larger scale, elevated interaction and engagement between residents could be one more tool of replacing the solitude that overwhelmingly dominates many adult care facilities.

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Protecting the Right to Yelp: Is it Time for a Federal Anti-SLAPP Law to Shield Free Speech Online?

John Marsicano Senior John Marsicano hopes to put his strategic communications degree to use in the public relations field after graduation. His interest in social media and its influence on consumer behavior sparked his desire to focus his undergraduate research on anti-SLAPP laws. John enjoyed this opportunity because it enabled him to provide insight to faculty, classmates and peers. Working with Dr. Dean Smith has been one of John’s most rewarding experiences, thanks to Dr. Smith’s expertise in First Amendment Law as well as his contagious and encouraging passion for the subject.

Abstract This article addresses whether the United States needs a federal anti-SLAPP statute and, if so, whether California’s law provides a model. A SLAPP is a lawsuit intended purely to intimidate and silence speakers by threatening a strenuous and financially draining legal fight. This article will focus on the increase in SLAPPs with the rise of online consumer-review sites such as Yelp.

It also will focus on California’s anti-SLAPP statute because many scholars consider it to be the strongest in the nation and because California has seen more anti-SLAPP litigation than any other. This article poses and answers three main questions: 1) Has the rise of the internet given rise to significant litigation involving California’s anti-SLAPP statute? 2) If so, how have state courts tended to interpret that statute? 3) Does the track record of California’s anti-SLAPP law involving online speech suggest a need for a federal anti-SLAPP Law? And 4) If so, should the federal statute be modeled on California’s?

S

trategic Lawsuits Against Public Participation, or SLAPPs, are civil complaints or counterclaims against individuals or organizations exercising their First Amendment right to freedom of speech (“What Is a SLAPP?” 2014). The hallmark of a SLAPP suit is that the legal claim, usually libel, has no chance of winning in court. Rather, the lawsuit is intended to “chill” public debate on a particular issue by intimidating the target of the seemingly frivolous lawsuit and discouraging others from speaking out. The problem for the speaker at the receiving end of such a suit is that defending against it is time-consuming and expensive. The target is usually an individual while the claimant is usually a business or corporation with much greater financial and legal resources. Therefore, critics of such suits say, SLAPPs send the

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message that if you dare to exercise your First Amendment right to speak, you could face legal sanctions that could be potentially devastating (“What Is a SLAPP?” 2014).

With the evolution of the Internet came the advent of sites like Angie’s List and Yelp, forums for crowd-sourced reviews about local businesses. In recent months, dozens of consumers have been hit with what might qualify as SLAPP lawsuits after posting negative reviews about businesses on these sites. These lawsuits often claim that a consumer’s comments on Yelp or Angie’s List have defamed a business’ owner and/or its employees (Chokshi, 2014). The potential for online comments to damage a business cannot simply be dismissed out of hand.

According to a recent survey conducted by Search Engine Land, 85 percent of consumers use the Internet to find local businesses. The survey also found that about 72 percent of consumers trust online reviews as much as personal recommendations, while 52 percent said positive online reviews make them more likely to use a local business (Anderson, 2012). However, the fact that so many consumers trust online reviews underscores the value of allowing them to exercise their right to speak freely about a business without having to worry about the possibility of a lawsuit and its chilling effect (Anderson, 2012).

At stake in these disputes is not only the online speaker’s right to speak but also the online reader’s right to read. In its landmark holding in the Virginia Board of Pharmacy case of 1976, the United States Supreme Court established a First Amendment protection for commercial speech for the first time (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 1976). In doing so, the Court shifted the focus of its First Amendment analysis from the speaker to the listener — thereby establishing a strongly protected “right to receive information” under the First Amendment (Kennedy, 2005). Furthermore, the Court has long embraced the idea that the First Amendment helps protect a well-functioning “marketplace of ideas,” the most cited philosophic rationale for First Amendment protection in the Court’s jurisprudence (Spring, 1996). Thus, the Court would argue, consumers have the capacity to determine for themselves what to think after deliberation and examining competing ideas (Blocher, 2008).

To protect those First Amendment interests, 28 states and the District of Columbia have adopted so-called anti-SLAPP laws (“What Is a SLAPP?” 2014). These laws are designed to give the target of a potential SLAPP lawsuit a defense that can stop legal action in its earliest stages, before a trial, if the target can convince a court that the lawsuit has no merit, is unlikely to succeed and was lodged as an intimidation tactic. However, Congress has never adopted an antiSLAPP statute, so this type of protection is not available to online speakers facing possible SLAPP lawsuits in federal courts.

This article will focus primarily on California’s anti-SLAPP statute because many scholars consider it to be the strongest in the nation and because California has seen more SLAPP litigation in its courts than any other state (“What Is a SLAPP?” 2014). The purpose of this article is to analyze how the courts in California have tended to interpret that law, especially with regard to online speech. This article also will explore whether the extensive track record of California’s anti-SLAPP law in the courts suggests a need for a federal anti-SLAPP law and, if so, whether it should be modeled on California’s.

This article is divided into four main sections. First, it will give a brief overview of scholarly thought on anti-SLAPP laws, especially as they pertain to online speech. Second, it will propose research questions to help clarify the most important aspects of the SLAPP versus anti-SLAPP debate. Third, it will analyze the most relevant cases that have been litigated in California courts in which the state’s anti-SLAPP was invoked. Finally, the article will conclude with observations

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and recommendations about how courts should resolve these disputes in the future and about whether, and how, Congress should act on the question of an anti-SLAPP law that would operate in federal courts.

ABBREVIATED LITERATURE REVIEW Most scholars applaud the development of anti-SLAPP statutes as an important new protection for free speech, especially online. Sophia Qasir (2013) has pointed out that the Supreme Court has “implicitly and explicitly” recognized that the right to free speech even includes the right to speak anonymously. Inevitably, she concedes, the rise of the Internet has given rise to anonymous speech at the outer limits acceptability.

Some scholars insist anti-SLAPP laws are more important than ever as people rely strongly on the Internet in general and social media in particular. Kaitlin Dohse (2013), for example, argues that with so many consumers relying on online reviews, there is a pressing need to ensure these opinions remain authentic and free from litigation that interferes with that authenticity (2013). Litigation could lead to self-censorship.

However, some scholars worry that anti-SLAPP laws limit the ability of individuals and businesses to protect their reputations from potentially libelous speech. Ben Quarmby (2008) argues that scholars should not underestimate the negative impact online speech can have on the financial prospects of businesses (2008, pg. 279).

Despite these divisions among scholars, most agree that some solution must be sought to protect online speech from lawsuits that may indeed be wholly frivolous and intended to squelch open discourse. This article will contribute to the literature by combining the above perspectives while examining how courts in California have balanced those competing interests in cases involving online speech.

RESEARCH QUESTIONS AND METHOD This article proposes four significant questions: RQ1: Has the rise of the Internet given rise to significant litigation involving California’s anti-SLAPP statute?

RQ2: If so, how have state courts tended to interpret the statute, in favor of the party suing the online speaker or in favor of the speaker seeking anti-SLAPP protection?

RQ3: Does the track record of California’s anti-SLAPP law involving online speech suggest a need for a federal anti-SLAPP law?

RQ4: And if so, should the federal statute be modeled on California’s law?

This article will try to answer those questions by analyzing litigation that has arisen in California courts that involved both online speech and the state’s anti-SLAPP law. It will identify those cases using the online database LexisNexis as well as the online resources of the California Anti-SLAPP Project (www.casp.net).

CASE ANALYSIS California’s anti-SLAPP law was enacted in 1992. Besides being one of the nation’s oldest, it is also considered one of the strongest in terms of protecting speakers from potentially frivolous SLAPP suits (“California’s Anti-SLAPP Law and Related State Statutes”). In light of

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complaints against websites like Yelp and Angie’s List, this analysis will focus only on the seven cases that have been litigated in California courts involving both the anti-SLAPP statute and online speech. This analysis will show whether California courts tend to favor the “slapper” or the “slapped.”

In 2008, the 6th Appellate District of California established a strong precedent for online speech under the state’s anti-SLAPP law in Wong v. Jing (Wang v. Jing, 2008). Yvonne Wong, a California-based dentist, sued Tai Jing, the father of a patient, after he and his wife allegedly posted a negative review about her on Yelp (Wong v. Jing, 2008). Wong also named Yelp as a defendant. Wong filed three causes of action, one of them being defamation. Subsequently, Wong’s attorney withdrew the libel claim against Yelp because Section 230 of the Communications Decency Act (CDA 1996) bars recovery against an Internet Service Provider for publishing third-party content (Wong v. Jing, 2008). Two years later, the court dismissed all claims against Yelp and all but the libel claim against Jing. Although the libel claim against Jing is still pending, the Superior Court awarded Jing and Yelp more than $80,000 in legal fees for the claims dismissed under California’s anti-SLAPP statute (Wang v. Jing, 2008).

The case shows that, while strong, the anti-SLAPP law’s protection does not automatically act as a shield against claims of libel, which will be heard on their merits.

However, the court recognized the financial strain and possible “chilling” effect of this type of lawsuit and so required the reimbursement of legal fees. The court emphasized that plaintiffs filing lawsuits “must proceed with caution when suing someone in response to an online review” (Wang v. Jing, 2008).

The case of Barrett v. Rosenthal also addressed comments made on an online review site.

Ilena Rosenthal was sued for defamation and related claims based on comments she made about Dr. Barrett and Dr. Polevoy on a website devoted to exposing health frauds (Barrett v.

Rosenthal, 2006). Rosenthal made a motion to dismiss the plaintiffs’ complaint under to the California anti-SLAPP statute, claiming her statements were protected speech and that the plaintiffs weren’t able to establish a “probability of success” on the merits of their lawsuit because she was immune from liability under Section 230 of the Communications Decency Act (Barrett v. Rosenthal, 2006). One of the three statements in question appeared in an article Rosenthal received in an e-mail. Rosenthal then posted a copy of that article on comment-based newsgroups, not her own discussion group. The trial court held that Rosenthal’s republication of words from another was indeed protected from liability by Section 230 of the Communications Decency Act (CDA 1996). Furthermore, the district court granted her motion to dismiss based on the fact that Rosenthal’s statements involved “an issue of public interest,” which meant they fell within the scope of the anti-SLAPP statute (Barrett v. Rosenthal, 2006).

However, in cases such as Ampex Corporation v. Cargle, courts leaned toward more nuanced distinctions between protected speech and unprotected libelous statements. Scott Cargle was a former employee of iNEXTV, a subsidiary of Ampex Corporation (Ampex v. Cargle, 2005). After he had been laid off, Cargle took to an Internet message board and anonymously posted critical messages about his former employer. iNEXTV brought a defamation action against “an anonymous poster,” and the poster responded with a motion to dismiss under California’s Anti-SLAPP statute, also asking to be awarded attorney fees (Ampex v. Cargle, 2005). Cargle’s messages contained highly inaccurate content related to internal discussions and comments from inside the organization. Once Cargle’s identity was revealed in the proceedings, the company dismissed its complaint. Although the claim was withdrawn, Cargle still requested attorney fees, but the court denied him that. The court explained that if the company had not

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dropped its complaint, Cargle probably would have lost on the libel claim: “Plaintiffs are not required to show actual damages as there is evidence from which constitutional malice may reasonably be inferred” (Ampex v. Cargle, 2005). The case showed that, contrary to some scholars’ fears, an anti-SLAPP statute is not necessarily an automatic shield against libel claims where those claims are likely to prevail.

In contrast, Global Telemedia International, Inc. v. Doe 1 et al. turned on the legal distinction between fact and opinion. Global Telemedia International (GTMI) filed a complaint saying the defendants had posted negative and allegedly libelous comments about GTMI on an online message board. The defendants claimed protection under the anti-SLAPP statute, saying, “there has been a disturbing increase in lawsuits, called SLAPPS, brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” (GTMI v. Doe 1 et al., 2001). GTMI claimed the defendants’ comments had a negative, costly impact on the company’s stock value. However, the court said GTMI could not prove any correlation between the defendants’ postings and the decrease in stock value. The court found that such postings are unprovable opinions, rather than actionable facts, and that the plaintiffs could not point to any facts relevant to determining the damage caused by these postings (GTMI v. Doe 1 et al., 2001). Instead, the court ruled that the posts were “full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents.” Moreover, the court said, the statements were “posted anonymously in the general cacophony of an Internet chat-room in which 1,000 messages a week are posted about GTMI” (GTMI v. Doe 1 et al., 2001). The case was dismissed, and the defendants were awarded attorney fees as called for by the anti-SLAPP statute.

Besides considering whether statements are libelous or non-libelous, courts also weigh whether statements constitute “an issue of public interest” under the anti-SLAPP law. In Colocation America v. Garga-Richardson, Colocation America filed suit against GargaRichardson, claiming he had committed trade libel by publishing statements that falsely portrayed the plaintiffs as “deceitful” on online review sites. Garga-Richardson responded with a motion to dismiss under California’s anti-SLAPP statute, arguing that he has a right “to inform the public of the plaintiffs’ business practices” (Colocation America v. Garga-Richardson, 2012).

The plaintiffs responded to that motion by arguing that the statements did not involve “an issue of public interest.” However, the court granted Garga-Richardson’s motion to dismiss by determining that his postings were made in connection with “a matter of public interest” based on evidence collected during the court’s investigation (Colocation America v. GargaRichardson, 2012). The case suggests that courts are likely to interpret the anti-SLAPP statute’s “public interest” wording broadly to include a wide array of public discussion.

DISCUSSION & CONCLUSION The clash between businesses and online review sites reached a crescendo in September 2014, when a case involving Yelp went all the way to the Ninth Circuit Court of Appeals. In Levitt v. Yelp (2014), a group of small business owners filed a lawsuit against the site claiming extortion of advertising fees through manipulating its users’ reviews and personally writing negative reviews, knowing that such reviews would result in declining business and economic loss (Levitt v. Yelp, 2014). However, the lawsuit was dismissed as the court held that the business owners “failed to state a claim that Yelp extorted or attempted to extort advertising fees by such means” (Levitt v. Yelp, 2014). The case demonstrated the potential power of review sites like

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Yelp and just how worried business owners are about anonymous, negative comments. Although Yelp prevailed, the case also demonstrated that an anti-SLAPP law at the federal level could have given Yelp another line of defense, rather than having to rely solely on the judgment of the court.

As the analysis in this article has shown, Courts in California have applied that state’s antiSLAPP statute in a logical, nuanced manner. Contrary to the worries of critics of anti-SLAPP laws, California courts have not automatically sided with the online speakers in cases brought by business owners. In fact, judges have seemed to go out of their way to avoid casting a blanket of protection over sites like Yelp. Based on the record in California, there is no reason to think federal-court judges would not interpret a federal anti-SLAPP law as thoughtfully as judges in California.

Businesses and critics of anti-SLAPP statutes often claim that the laws interfere with a defamed party’s ability to prevail in legitimate libel suits. The analysis in this article has shown that those criticisms are overblown and misguided. It is Section 230 of the Communications Decency Act that protects Internet Service Providers like Yelp from libel suits, not anti-SLAPP laws, and Section 230 only protects the ISPs. There is nothing stopping a business from suing an individual commenter for libel.

Based on this analysis, Congress should have no fear of adopting a federal anti-SLAPP statute. Furthermore, the law should be modeled on California’s statute, which, as this has shown, seems to be working well in cases involving online speech. Finally, the federal statute should include a pre-emption clause so that it would extend anti-SLAPP protection to the 22 states that do not have such laws and guarantee stronger protection in states that have antiSLAPP statutes weaker than the one in California. Whether Congress acts or not, one thing is certain; online comment sites like Yelp are not going away — and neither are the lawsuits that threaten to chill them.

References Ampex Corporation et al. v. Cargle, Case No. A106345, California Superior Court of Appeal, Contra Costa County, 128 Cal.App.4th 1569, 27 Cal.Rptr.3d 863, May 6, 2005, Filed Anderson, M. (2012, March 12). Study: 72% Of Consumers Trust Online Reviews As Much As Personal Recommendations. Retrieved November 21, 2014.

Barrett v. Rosenthal, Case No. 833021-5, California Superior Court, Alameda County, 40 Cal.4th 33, 146 P.3d 510, November 20, 2006, Decided Blocher, J. (2008). Institutions in the Marketplace of Ideas. Duke Law Journal, 57.

Bruce, D. (2012, May 1). Solo/Small Firm Practice: How Lawyers Can Handle Bad Reviews And Complaints On Social Media. Retrieved November 22, 2014.

California’s Anti-SLAPP Law and Related State Statutes. (n.d.). Retrieved December 28, 2014, from http://www.casp.net/california-anti-slapp-first-amendment-law-resources/statutes/

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Chokshi, N. (2014, September 10). California protects the right to Yelp without penalty.

Retrieved November 21, 2014.

Colocation America, Inc. v. Garga-Richardson Case No. 09k08409, Superior Court of the State of California, County Of Los Angeles, December 10, 2012, Filed Communications Decency Act of 1996 ("CDA"), 47 U.S.C. § 230(c)(1).

Dohse, K. (2013, January 1). Fabricating Feedback: Blurring the Line Between Brand Management And Bogus Reviews. Retrieved November 21, 2014.

Emerson, T. (1963). Toward a General Theory of the First Amendment. Yale Law School.

Global Telemedia International, Inc. v. Doe 1 et al., Case No. Sa Cv 00-115 Doc (Eex), U.S. District Court, Central District Of California, 132 F.Supp.2d 1261, February 23, 2001, Decided Goldman, E. (2012, September 24). We Need Federal Anti-SLAPP Legislation, But Sen. Kyl's "Free Press Act of 2012" Isn't the Answer (Yet). Retrieved November 29, 2014, from http://www.forbes.com/sites/ericgoldman/2012/09/24/we-need-federal-anti-slapplegislation-but-sen-kyls-free-press-act-of-2012â ³-isnt-the- answer-yet/ Kennedy, J. (2005). The Right to Receive Information: The Current State of The Doctrine And The Best Application For The Future .Seton Hall Law Review. Retrieved November 29, 2013, from LexisNexis.

Levitt v. Yelp, Case No. 11-17676, United States District Court, Northern District Of California, September 2, 2014, Filed.

Mart, S. (2003). The Right to Receive Information. University of California, Hastings College of Law Library. Retrieved December 2, 2014, from http://www.aallnet.org/mm/Publications/llj/LLJ-Archives/Vol-95/pub_llj_v95n02/200311.pdf Qasir, S. (2013, May 1). Anonymity in Cyberspace: Judicial and Legislative Regulations.

Retrieved November 23, 2014.

Quarmby, B. (2008, December 1). Protection from Online Libel: A Discussion and Comparison of the Legal And Extrajudicial Recourses Available To Individual And Corporate Plaintiffs. Retrieved November 22, 2014.

Schorr, J. (2013, April 1). Malicious Content on the Internet: Narrowing Immunity Under The Communications Decency Act. Retrieved November 21, 2014.

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Â

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (n.d.). Cornell University Law School: Legal Information Institute. Retrieved from http://www.law.cornell.edu/supremecourt/text/425/748 W. Wat Hopkins, the Supreme Court Defines the Marketplace of Idea, Journalism and Mass Communications Quarterly, Vol. 73, No. 1 What is a Strategic Lawsuit Against Public Participation (SLAPP)? (2014, July 29).

Retrieved November 28, 2014, from http://www.casp.net/sued-for-freedom-ofspeech-california/what-is-a-first-amendment-slapp/ Wong v. Jing, Case No. 1-08-Cv_129971, Court Of Appeal Of California, Sixth Appellate District, 189 Cal. App. 4th 1354; 117 Cal. Rptr. 3d 747, November 9, 2010, Filed

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The Melancholy Muse Amy J. King Amy is a junior studying piano performance and English literature. After graduating in 2016, she hopes to perform jazz or classical repertoire, teach music lessons or obtain an editing position. Amy also looks forward to earning her masters degree in either choral conducting or library science in hopes of becoming a music librarian.

Participating in undergraduate research gave her the opportunity to apply the aggregate of her knowledge to a field she is passionate about. She also suggests that research reveals where one’s passions lie by testing patience with the research on a topic. Amy’s research indicated that her two passions- music and literature- are not separate entities; instead, she found that they can be appreciated together in harmony. Working with her mentor, Dr. Laura Linker, Amy learned to be more open to criticism as well as how to be more critical of herself.

Abstract In his “Il Penseroso”, John Milton describes the journey of a person trying to hear God’s voice, crying out to his Muse, Melancholy, and treading the path of deliberate solitude, for that must be the way to hear God’s voice. In the end, the speaker lets the sounds and community of the church take over his spirit, which brings Heaven to him. This reveals the transformation of the speaker in finding God’s voice present in his congregation rather than in his own solitude and melancholy. The pealing of the organ represents the peeling away of the world to which the speaker once cries, and in defending this claim, David M. Miller writes that the poem displays a “gentle fusion of the rival claims of God and of the world.” The use of harmony as a metaphor for the relationships of the world and of God towards the speaker ties into the image of congregational worship that concludes “Il Penseroso”. Milton not only employs celebratory harmony to represent the success and glory of being in communion with God through the image of congregational song, but he also humanizes the speaker, for one cannot find God without being in communion with others.

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iltonic poetry has long been known for its use of music to describe the sublime, such as a choir singing and an organ pealing that brings “all heaven to mine eyes” in his Il Penseroso (Milton 166). The son of a composer, John Milton, the younger, picked up both vocal and instrumental music, and like his father’s music, much of it was religious. In most of his poems, he praises polyphony as being almost equal to the sublime, so it is evident that music plays a more prominent role in his poetry than simply describing scenes or ideas. In the case of the “twin poems,” L’Allegro and Il Penseroso, it is argued that he follows a classical ode form by definition and technique, and this places him into the Renaissance tradition, or the rebirth of the classics (Revard 338). Milton sets these two poems even more into

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the Renaissance tradition because of his discussion of Melancholy in Il Penseroso. Throughout the course of Il Penseroso, the speaker listens to many different types of song in order to dispel his disease of Melancholy, and it is the church music that shows him a piece of Heaven and leaves him able to contemplate the wonders of God’s universe once more. Through the narrator’s exploration of different types of music to dispel his Melancholy in Il Penseroso, Milton employs music as a metaphor for the relationships between God, people, and the narrator, displaying that relationships and the avoidance of isolation can be a cure for Melancholy.

Melancholy, one of the four Renaissance temperaments, causes men to alienate themselves from the rest of humanity. Philosophers since ancient times classified Melancholy into categories of temperature or colour. Of these temperatures or colors, the two ends of the spectrum describe Melancholy as being the lowest of human traits or as being a cause for human genius (Babb 267). The Galenic end colours Melancholy as black and filthy, for the disease draws men away from their peers, causing them to lose productivity and appear dim-witted. Il Penseroso has also been classified as occurring in the Lydian mode musically, because of a line asserting this at the end of its companion poem, L’Allegro, which promotes “drunkenness, effeminacy, and inactivity,” which is traditionally the literary way of describing the flippant and giocoso mood of the Lydian mode (Grose 188). This type of Melancholy “makes men dull and blockish, fearful and sorrowful without apparent cause, fond of solitude and darkness,” which causes society to treat men full with this temperature of Melancholy with disdain, or as the lower end of wit, and these men “have lost the privilege of communion with heaven,” like the speaker of Il Penseroso (Grose 260).

The other end, or the Aristotelian view, colors Melancholy as a deep purple tinged with gold, for it is admirable and causes the man to grow more contemplative of the universe, thus leading to genius. In this most ideal Melancholy, Aristotle describes a man who does not fully alienate himself from society but instead balances both his social and contemplative life (Grose 267). Aristotle is puzzled by this connection of a type of Melancholy to genius, when he asks, “Why is it that all those who have become eminent in philosophy or politics or poetry or the arts are clearly of an atrabilious temperament?” (Babb 261). Aristotle continues to wonder why the brilliant men are the ones usually attributed to being of a melancholy or “atrabilious,” as he states, temperament. The presence of a Muse as Melancholy follows the idea of the inspired man being plagued with the disease, but the speaker of Il Penseroso is not inspired by the Muse until the end of the poem. Both the Galenic and Aristotelian colours of Melancholy thread themselves throughout Renaissance literature and philosophy and influence Milton’s works.

The types of music Milton describes throughout the beginning of Il Penseroso displays, through solitary songs performed by other singers, that the speaker possesses the Galenic type of Melancholy. The first instance of exploring music occurs as the speaker describes Philomel, who in Ovid’s The Metamorphoses was raped by her sister’s husband, Tereus, so the speaker listens to her sing of her “sweetest, saddest plight” (Milton 57). After she and her sister end Tereus’ life, Philomel’s sister takes the form of the nightingale, which is known for its sad song.

Thus, the purpose of song is to express sorrow to no audience in particular (Greenblatt 777).

Milton here describes music as a source of relief, for “as in the story of the raped and maimed Philomela, the nightingale sings to relieve her own pain as well as to suit the mood of the melancholy listener” (Chernaik 27). It is this solitary and mournful song that embodies the black Melancholy’s propensity to avoiding contact with others.

Later in the poem, the speaker also compares his situation with that of the bellman, who rings bells at night to mark the hour. The music of the bellman is reflected in monotone

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plainchant music, one that is more inwardly sung than expressed and shared with others (Greenblatt 778). Though Milton describes solitary music in this poem, he also displays the power of music through the allusion to Orpheus, who saved his love Proserpina from Pluto through song. Milton writes that the song of Orpheus had the power to draw “iron tears down Pluto’s cheek, / And made Hell grant what love did seek” (Milton 107-8). Perhaps Milton argues that solitary music encourages Melancholy, or his argument lies in the opposite. After the reference to the power of music through Orpheus, the speaker of Il Penseroso notes the use of music in battle. Though it is happy and communal music, meant to inspire, it still includes “sage and solemn tunes” that sing of the aftermath of battle (117). The discussion of Melancholy remains “hopelessly intertangled” in the philosophies and literatures of the Renaissance (Babb 267).

Milton not only refers to music through the tone of the piece, but also through form. The formatting of the poem suggests that Milton seeks to follow the classical ode form in Il Penseroso. Classical odes were typically printed in short lines that made them appear octosyllabic, or eight syllables to a line. Milton mimics this in Il Penseroso, employing octosyllabic couplets, or eight syllables to a line that rhyme every two lines (Revard 340). The visual and textual formatting both sets the poem in the ode tradition and encourages discussion of the four Renaissance temperaments, which includes Melancholy. This poem appears to argue which of the two Melancholies are more prominent, Galenic or Aristotelian, and Milton at first appears to argue for the Galenic, or ignoble form, for Melancholy is dressed “All in a robe of darkest grain, / Flowing with majestic train” (Milton 33-4). Yet, he turns the entire idea around when Melancholy begins to inspire the speaker by employing a different kind of music than the solitary and mournful music that inhabits the rest of the poem.

Furthermore, Milton writes Il Penseroso according to the patterning of a classical ode: invocation of a Muse or God, followed by a description of that Muse or God, a supplication to that Muse or God, and praise to the Muse or God. This pattern was originally set by Homer and is followed closely in Orphic odes. The ode, like other poetic forms in Ancient times, is synonymous with music, so the connection between Il Penseroso and the classical ode is vital to understanding its musicality (Revard 338). In Milton’s ode, the speaker cries out to Melancholy, “But hail thou Goddess sage and holy / Hail, divinest Melancholy” (Milton 11-12). Milton then gives a description of this sage Goddess, calling her both the mother and sister of Vesta, to show her genealogy. Then he employs adjectives to describe Melancholy’s character, calling her a “pensive Nun, devout and pure” (31). Yet, she also dons cloaks “of darkest grain, / Flowing with majestic train” (33-4). Stella P. Revard, who writes an essay regarding the mythology of Miltonic poetry, aligns the Muse Urania to the descriptions of Melancholy given by Milton in Il Penseroso. While not much is known of Vesta’s mother, the character traits of Melancholy match the traits of Urania, who is traditionally pictured as being pensive, always looking up at the stars and avoiding contact with others (343). As the speaker of Il Penseroso journeys through the world throughout the course of the poem, Melancholy shows solitary music to him.

Genealogy and character given through actions both serve as the description phase of the classical ode.

After describing the Muse Melancholy, Milton continues in the ode form by having the speaker of Il Penseroso ask her for help. He asks her to come with him, abandoning her circle of singing with the other Muses, on this journey to finding a cure for the disease of Melancholy, for it is evident throughout the course of the poem that the speaker is cursed with the blackest form of the disease. The speaker asks her to “add to these retired Leisure, / That in trim Gardens takes

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his pleasure;” (Milton 49-50). He also begs her to hide him from “Day’s garish eye” while the rest of the world sings its busy song (Milton 141-43). The solitary songs of sadness performed by mythological characters, such as Philomel, reflect the despair felt by the speaker, for they sing to save themselves from their sadness, and the speaker of Il Penseroso experiences it without participating. This serves as the supplication phase of the classical ode.

Milton completes the ode form in Il Penseroso by praising the Muse Melancholy for her genius in contemplation and pulls her away from her blackest form. The speaker states directly to her, that she gives such pleasures, “And I with thee will choose to live,” which displays the inspiration she provides for him (178). The speaker chooses to remain close to Melancholy as a Muse, for she no longer remains a disease but a form of inspiration, thus adopting the Aristotelian or noble view of Melancholy. Melancholy also more fully adopts the character of Urania at the end, for Urania “is both guide and instructress to her willing devotee, and this insistence on learning and serious study is exactly the quality in the Muses that the mythographers most stressed” (Revard 344). Since the speaker learns throughout the course of the poem how to cope with his disease through the use of song, Melancholy or Urania, as a Muse, succeeds in her job of inspiring the man to contemplate and to learn forevermore.

In the last section of Il Penseroso, the speaker enters a sacred space, one that is decorated to be an awe-inspiring place of worship, with “storied windows richly dight, / Casting a dim religious light” (159-60). By this point, the reader might expect simply a beautiful room with one sole occupant. Yet, the reverse is true. The speaker experience the loud booming of the organ as the choir sings out praises, and In service high and anthems clear, As may with sweetness, through mine ear, Dissolve me into ecstasies, And bring all heaven before mine eyes. (163-66) Through the presence of a choir of people, the speaker experiences the lifting of the black Melancholy, for he has found his cure and the Muse Melancholy can now inspire him instead of show him sad and solitary songs. It is interesting that Milton chooses a religious service to relieve the speaker of his ailment, but not merely for his propensity towards writing religious works.

The conclusion of Il Penseroso displays Milton’s innate understanding of religious life.

Religion, in this poem is not mere faith; it also possesses a healing social aspect. In “Depression, Anxiety, and Religious Life: A Search for Mediators,” a study concluded that religious activity is connected to lessened symptoms of depression and anxiety, for it encourages social integration and meaningful interactions with others (Sternthal 344). It also creates a support system for those who participate in the worship service and gives the participant a sense of purpose combined with the purposes of those in the environment (350). Religious services also teach forgiveness and understanding, and these together help to cease negative emotions (344). These conclusions are embodied in the speaker of Il Penseroso who finds a way to cope with Melancholy through the support of the “full-voiced choir below” (162). More than this, by joining in the singing, or at least allowing himself to be enraptured by the singing, the speaker adopts his humanity. The term “worship” stems from the Anglo-Saxon verb “to be,” so worship re-affirms one’s being or identity, allows one to find worth in oneself while acting as one of many (Westermeyer 5). In the context of the poem, Milton shows that participating in worship through being oneself, simply by being, and finding value in that and nothing more, the speaker finds a cure to Melancholy.

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The idea of music also takes on a new role in the end of Il Penseroso, for when congregations sing in worship, they express a heightened drive for their prayers and praises to reach a new and divine plane of existence (Westermeyer 4). Since the speaker fully experiences this desire for the divine to take part in the Earthly world, the speaker is finally able to fully communicate with Melancholy, thus allowing him to adopt the more noble form of Melancholy that is tinged with gold. The speaker grows content to sit and gaze at the stars “Till old experience do attain / To something like prophetic strain” (173-74). He allows the sublime to enter his life through the experience of the congregational singing, which provides a cure for his Melancholy. The Muse Melancholy also fully adopts her character as an inspiration after this experience, for the speaker is happy to “sit and rightly spell / Of every star that heaven doth shew” (170-71). Since Urania is the Muse associated with knowledge and inspiration of astronomy, Melancholy adopts her persona after the worship. Through worship with each other, they become themselves. Singing in community in worship also encourages the discovery of a common goal or at least the expression of a desire for one. Milton thus expresses the community of a church as the cure for the Melancholic disease.

Milton joins the Renaissance tradition in his discussion of Melancholy through the use of music descriptions in Il Penseroso. The speaker, accompanied by the Muse Melancholy, journeys through types of song in order to find a cure for his black disease. The one cure occurs in community worship, where the two find themselves, which is the purpose of worship, given by the Anglo-Saxon root “to be.” Studies suggest the same result that Milton encourages in Il Penseroso, which ascribes community religious worship to be a way to rid oneself of the blackest Melancholy and instead fulfil one’s purpose. Attending worship services grants one purpose, and the narrator of Il Penseroso finds his purpose in being inspired by the stars thanks to the Muse Urania, known in this poem as Melancholy. In this poem, Milton employs music as a metaphor for the larger theme of relationship. Since the relationship of people to the speaker and to God plays a vital role in the conclusion of this piece, it is evident that music is not the main focus of the piece, even if music fills each line with imagery and beauty. Il Penseroso, with its companion L’Allegro are commonly referred to as the binary poems for their contrasting images of day and night or light and dark, but “both poems are more complex than such categories indicate,” so Il Penseroso must argue something deeper than the sadness and cure of Melancholy (Chernaik 32). The speaker of Milton’s Il Penseroso, explores many different types of music and meets many figures from classical mythology. The course of this poem shows that music can be used as not only a metaphor for human relationship, but also as one of the cures for Melancholy, along with the satisfied need of community. More than this, the speaker also cures Melancholy of her disease of not being able to inspire the speaker, who is plagued with the disease of Melancholy. This displays Milton’s love of complexity in all his poetry, so it benefits the Miltonic scholar to delve into the profounder meaning for musical allusions and descriptions that saturate his poetry.

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Works Cited Babb, Lawrence. ‘The Background of “Il Penseroso.”’ Studies in Philology 37.2 (1940): 257273. University of North Carolina Press. Web. 23 Oct. 2014.

Chernaik, Warren. "Linked Sweetness: Milton and Music." The Seventeenth Century 26.1 (2011): 23-43. ProQuest. Web. 23 Oct. 2014.

Grose, Christopher. ‘The Lydian Airs of “L’Allegro” and “Il Penseroso.” The Journal of English and Germanic Philology, 83. 2 (1984): 183-199. University of Illinois Press. Web. 23 Oct. 2014.

Miller, David M. “From Delusion to Illumination: A Larger Structure for L’Allegro-Il Penseroso.” PMLA 86.1 (1971): 32-39. Modern Language Association. Web. 23 Oct. 2014.

Milton, John. “Il Penseroso.” The Norton Anthology of English Literature. 8th ed, Vol. B. Ed. Greenblatt, Stephen. New York: W.W. Norton and Company, 2006. 1801-1805. Print.

Revard, Stella P. ‘”L’Allegro” and “Il Penseroso”: Classical Tradition and Renaissance Mythography.’ PMLA 101.3 (1986): 338-350. Modern Language Association. Web. 23 Oct. 2014.

Sternthal, Michelle J., et al. "Depression, Anxiety, and Religious Life: A Search for Mediators."

Journal of Health and Social Behavior 51.3 (2010): 343-59. ProQuest. Web. 28 Oct. 2014.

Westermeyer, Paul. “To Be Human Is To Sing.” The Luther Northwestern Story 7.1 (1990): 4-8.

Luther Northwestern Theological Seminary. Web. 23 Oct. 2014.

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A Cross Country Comparison of a Public Company Audit Report Andrew Colitti

Senior accounting major Andrew Colitti plans on working in audit for public accounting firms and hopes to become a CPA. He was inspired to work on his undergraduate research because he wanted to understand the differences between auditings standards in the United States compared to those internationally. He is thankful to have learned more about auditing that he did not know before his research.

Andrew’s mentor, Dr. Premalata Sundaram, offered plenty of support during this project. She provided guidance as to the scope of his research and influenced him to follow his passion to graduate school in order to further his education. After graduation in May 2015, Andrew will be attending Wake Forest University to earn his Master of Science in Accountancy.

Abstract An auditor’s report is the end product of the audit of a company where the auditors’ express their opinion on the client’s financial statements. There are many differences between an auditor’s report for a public company in the United States compared to an auditor’s report for a foreign public company. This is mainly due to the fact that there are different standards set by different governing bodies. The standards that apply are based on the location of the company.

This paper will give a background on the governing bodies and their different standards. The differences will be shown by comparing a foreign auditor’s reports to a U.S. auditor’s report.

A

Section 1: Background on auditing standards governing public companies.

udit engagements are necessary to investors and the public to provide assurance about the reliability of information. An auditor’s report is the end product of the audit of a company where the auditors’ express their opinion on the client’s financial statements.

There are many differences between an auditor’s report for a public company in the United States compared to an auditor’s report for a foreign public company. This is mainly due to the fact that there are different standards set by respective governing bodies. The standards that apply are based on the location of the company.

International accounting standards are different than the standards followed in the United States. Most countries around the world follow International Financial Reporting Standards (IFRS), which are developed by the International Accounting Standards Board (IASB). In the United States, the Financial Accounting Standards Board (FASB) sets the financial accounting standards of U.S. Generally Accepted Accounting Principles (GAAP). The FASB receives its

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authority to set these standards from the U.S. Securities and Exchange Commission (SEC).

Companies in the United States are required by the SEC to follow U.S. GAAP. It wasn’t until 2008 that the U.S. Securities and Exchange Commission allowed foreign companies to present their financial statements according to IFRS. (10) International auditing standards are also different from U.S. auditing standards.

International Standards on Auditing (ISA) are developed by the International auditing and Assurance Board (IAASB). The IAASB is part of the International Federation of Accountants (IFAC). (10) Most foreign countries have adopted International Standards on Auditing; however, there are still some foreign countries that have not adopted them yet. The countries that have not adopted ISA still base their auditing standards on them. An example is the Financial Reporting Council, which is the regulatory body that sets the standards in the United Kingdom and Ireland.

The auditing standards set by the FRC generally follow ISA, however there are some sections of ISA that weren’t adopted by the FRC. (3) In the United States, the Public Company Accounting Oversight Board (PCAOB) sets the standards for audits of public companies under authority delegated from the SEC. The PCAOB was created in 2002 by the Sarbanes-Oxley Act to oversee and discipline public accounting firms and CPAs that audit public companies registered with the SEC. Public accounting firms that audit public companies in the United Stated must be registered with the PCAOB. (10)

Section 2: The Standard Report The standard U.S. auditor’s report reflects an unmodified opinion, which indicates that the financial statements in all material respects fairly present the financial position, results of operation, and cash flows, in accordance with the applicable financial reporting framework, which is usually U.S. Generally Accepted Accounting Principles for American Companies.

Under these circumstances the auditors are taking no exceptions and are not inserting any modifications or qualifications into the report. The content of the auditors’ reports is different for public and nonpublic companies. This paper will only present the standard audit reports for public companies. (10) A report with an unmodified opinion includes a title, addressee, a main body, the auditing firm’s signature, address (city and state), and the report's issuance date. The title will include the word “independent” to indicate that the firm acted with integrity and exercised objectivity and professional skepticism. The main body usually consists of four paragraphs.

The first paragraph is an introductory paragraph. It has four elements:  Identify the entity being audited  Explicit statement that an audit was performed  Title of each financial statement that was audited  The date or period covered by each statement The second paragraph establishes management’s responsibility for the content of the financial statements and the system of internal control. The third paragraph contains the scope of audit work, including a general description of the nature of the work, procedures performed, and that the work performed provided a reasonable basis for their opinion. This paragraph will also state that the audit work performed was in accordance with the PCAOB standards on auditing.

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The fourth paragraph states the auditor's opinion on the financial statements and if they are in accordance with the applicable financial reporting framework.

Section 3: Differences The auditing standards applicable and the financial framework used for reporting depend on the country that the company is located in. A company that is dual listed on a different stock market than the country they are located in may also be required to provide additional reports based on those standards. For example, a foreign company that is listed on the New York Stock Exchange will also be required to file a form 20-F with the SEC. In this study, I compare the auditor’s report for Azonto Petroleum Limited and BP Group with ConocoPhillips to highlight the differences between international public company auditor’s reports and U.S. auditor’s reports.

3.1 Comparison of Auditor’s Reports for Azonto Petroleum Limited and ConocoPhillips Azonto Petroleum Limited is an Australian oil and gas company listed on the Australian Securities Exchange. The company files financial reports in accordance with Australian Accounting Standards and Corporations Act 2001. In accordance with Accounting Standard AASB 101, Azanto Petroleum also complies with International Financial Reporting Standards.

(9) Australia adopted IFRSs for all companies, excluding not-for-profit entities, which are reporting entities on January 1, 2005. (8) The Australian Auditing Standards, developed by the Auditing and Assurance Standards Board (AUASB), establish the requirements and responsibilities of the auditor, as well as requirements for the form and content of the auditor’s report. (2) ConocoPhillips is a U.S. company listed on the New York Stock Exchange. The applicable financial framework is U.S. GAAP as promulgated by the FASB in the Accounting Standards Codification. The auditing standards that apply to ConocoPhillips are set by the PCAOB. The general content of the two auditor’s reports are similar, but the format and wording used in each are different. The first noticeable difference is to whom the report is addressed. The Azonto Petroleum report is addressed “To the members of Azonto Petroleum Limited.” In ASA 700 it states, “The auditor’s report is normally addressed to those for whom the report is prepared, often either to the shareholders or to those charged with governance of the entity whose financial report is being audited.” (4) The ConocoPhillips auditor’s report is addressed to “The Board of Directors and Stockholders.” The PCAOB standard that applies is AU Section 508.09, which is really an AICPA standard that the PCAOB adopted on an interim basis. It says, “The report may be addressed to the company whose financial statements are being audited or to its board of directors or stockholders.” (1) The Azonto Petroleum auditor’s report includes headings before each paragraph, while in the ConocoPhillips auditor’s report there are no headings. One of the paragraphs in Azonto’s report is “Independence.” This relates to the independence requirements of Corporations Act 2001. A statement of independence is not included in the U.S. auditor’s report because independence is implied. The Sarbanes-Oxley Act of 2002 made the PCAOB responsible for establishing the ethical and independence standards for audits of public companies. The SEC still

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has oversight over this. The Sarbanes-Oxley Act of 2002 made it illegal for a registered public accounting firm that audits a public company to provide a variety of non-attest services to that client.

The format and wording of the opinion given in each auditor’s report is very different.

The opinion given in ConocoPhillips auditor’s report is in a paragraph format. It says, “In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of ConocoPhillips at December 31, 2013 and 2012, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2013, in conformity with U.S. generally accepted accounting principles.”

This is very different compared to the outline format of Azonto’s auditor’s report. There are two parts to the opinion for Azonto. The first part states that the financial report of Azonto Petroleum Limited is in accordance with the Corporations Act 2001. This part includes support stating, “giving a true and fair view of the consolidated entity’s financial position as at 31 December 2013 and of its performance for the six months ended on that date.” The first part also includes a statement saying that Azonto Petroleum additionally complies with Australian Accounting Standards and the Corporations Regulations 2001. The second part of the opinion given for Azonto says, “the financial report also complies with International Financial Reporting Standards as disclosed in Note 2.” The reason the report for Azonto only covers six months and not an entire year is because Azonto was switching to a calendar year in 2013. Their previous year-end was June 30.

The report for Azonto Petroleum includes a signature from the partner. ConocoPhillips auditor’s report does not have to be signed by the partner on the engagement. The PCAOB does not require a signature from the partner, only the firm conducting the audit. Both reports include the firm, address, and date in the signature.

The audit report for ConocoPhillips includes a report on internal control. The SarbanesOxley Act of 2002 requires public companies to issue reports by management and the auditors.

The auditors are also required to evaluate and provide an opinion on internal control. The Internal Control- Integrated Framework issued by the Committee of Sponsoring Organizations (COSO) is used to provide the acceptable control criteria. (10) Neither a report on internal control, nor an opinion, are required from the auditors by Australian Auditing Standards. It is, however, mentioned that the auditor considers internal control relevant to the preparation and fair presentation of the financial report in order to design audit procedures that are appropriate.

The Azonto Petroleum auditor’s report includes a report and opinion on the remuneration report. The remuneration report is required by section 300A of the Corporations Act 2001. It is not required in the United States. A remuneration report is issued by the directors to compare the highest paid salaries in the company to the lowest average 10 percent. It is designed to provide readers with information on the company’s policies relating to executive director’s compensation. The purpose of making the remuneration report a requirement is to increase transparency. Including it in the audit provides investors with confidence in the reliability of the issued remuneration report of the company.

3.2 Comparison of Auditor’s Reports for BP Group and ConocoPhillips The auditor’s report for ConocoPhillips was also used as a comparison for BP Group. BP Group is an international company whose headquarters are located in London, England. Public companies in Europe are required to follow International Financial Reporting Standards as

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adopted by the European Union. The auditing standards applicable to the audit of BP are International Standards on Auditing (UK and Ireland). These standards are set by the Financial Reporting Council as mentioned earlier.

BP Group is a dual listed company. Their stock is listed on the London Stock Exchange and the New York Stock Exchange. As such, BP Group filed a form 20-F to comply with the auditing standards set by the PCAOB. A 20-F is very similar to an ordinary U.S. auditor’s report.

This report includes a separate report on internal control as required for a U.S. public company.

The auditor’s report for BP Group is addressed “To the members”. This is different from ConocoPhillips auditor’s report, which is addressed “To the Board of Directors and Shareholders.” The BP auditor’s report also uses headings before paragraphs. Headings are not used in the ConocoPhillips auditor’s report. The opinion of the auditors is also the first thing included in the auditor’s report for BP. In the ConocoPhillips report it comes at the end. The format and wording are very different in the BP report. It uses a bullet format, and the first bullet point says how the consolidated financial statements “give a true and fair view of the state of the group’s affairs as at 31 December 2013 and of its profit for the year then ended.” The second bullet point states that the financial statements have been included in accordance with IFRS as adopted by the European Union. The third bullet point states how the financial statements have been prepared in accordance with the requirements of the Companies ACT 2006 and Article 4 of the IAS Regulation. The opinion given in ConocoPhillips auditor’s report is in a paragraph format and uses the wording “present fairly, in all material respects.” There is a section in the BP auditor’s report that is not included in ConocoPhillips related to an opinion on matter prescribed by the Companies Act 2006. The purpose of this section is for the auditors to report on information in the strategic report of the Director’s Report. A partner’s signature is also included on the BP auditor’s report. This is not required in the United States.

Section 4: Conclusion For someone with limited background knowledge on the context of an auditor’s report, an international and U.S. auditor’s report would seem similar at first; whereupon more study, they are very different. An international auditor’s report is more transparent than a U.S. auditor’s report. Both foreign companies that were reviewed had different legislation that applied to them.

The Companies Act 2006 and the Corporations Act 2001 applied to BP Group and Azonto Petroleum. These caused increased disclosure in the auditor’s reports, both dealing with auditor independence and ethical standards. There are standards for auditor independence in the U.S. but they are not included in the auditor’s report. Most countries have adopted the international standards on auditing and the PCAOB has proposed changes to their standards that would increase transparency and make them more similar to international standards. In the future there may be one set of auditing standards adopted by all countries, but until then there will continue to be different auditor’s reports for each country as shown in this paper.

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Bibliography 1. " AU 508 Reports on Audited Financial Statements." Public Company Accounting Oversight Board. Accessed December 14, 2014. http://pcaobus.org/Standards/Auditing/Pages/AU508.aspx.

2. "AUASB Standards." Auditing and Assurance Standards Board. Accessed December 14, 2014. http://www.auasb.gov.au/Pronouncements/AUASB-Standards.aspx.

3. "Auditing Standards." Financial Reporting Council. Accessed December 14, 2014. https://www.frc.org.uk/Our-Work/Codes-Standards/Audit-and-assurance/Standards-andguidance/Standards-and-guidance-for-auditors/Auditing-standards.aspx.

4. "Auditing Standard ASA 700." Auditing and Assurance Standards Board. July 1, 2013.

Accessed December 14, 2014. http://www.auasb.gov.au/admin/file/content102/c3/Jul13_Compiled_Auditing_Standard_ASA_7 00.pdf.

5. Azonto Petroleum Limited, 2013 Annual Report, December 31, 2013, P. 67,68, from Azonto Petroleum Limited investor relations website, http://www.azpetro.com/media/11172/financialreport-for-the-period-ended-31-december-2013.pdf, accessed December 14, 2014.

6. BP Group, 2013 Annual Report, December 31, 2013, P. 117-122, from BP Group investor relations website, http://www.bp.com/content/dam/bp/pdf/investors/BP_Annual_Report_and_Form_20F_2013.pdf, accessed December 14, 2014.

7. ConocoPhillips, 2013 Annual Report, December 31, 2013, P. 77,78, From ConocoPhillips investor relations website, http://www.conocophillips.com/investorrelations/CompanyReports/2013_Annual_Report_CR.pdf, Accessed December 14, 2014.

8. "IFRS APPLICATION AROUND THE WORLD JURISDICTIONAL PROFILE: Australia." IFRS. June 5, 2013. Accessed December 14, 2014. http://www.ifrs.org/Use-aroundthe-world/Documents/Jurisdiction-profiles/Australia-IFRS-Profile.pdf.

9. "Presentation of Financial Statements." Australian Accounting Standards Board. June 20, 2012. Accessed December 14, 2014. http://www.aasb.gov.au/admin/file/content105/c9/AASB101_09-07_COMPsep11_07-12.pdf.

10. Whittington, Ray, and Kurt Pany. Principles of Auditing & Other Assurance Services. 19th ed. New York, NY: McGraw-Hill/Irwin, 2014. 11,16,52,42,277.

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Appendix

Report of Independent Registered Public Accounting Firm The Board of Directors and Stockholders ConocoPhillips We have audited the accompanying consolidated balance sheets of ConocoPhillips as of December 31, 2013 and 2012, and the related consolidated statements of income, comprehensive income, changes in equity, and cash flows for each of the three years in the period ended December 31, 2013. Our audits also included the related condensed consolidating financial information listed in the Index at Item 8 and financial statement schedule listed in Item 15(a). These financial statements, condensed consolidating financial information, and schedule are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements, condensed consolidating financial information, and schedule based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of ConocoPhillips at December 31, 2013 and 2012, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2013, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related condensed consolidating financial information and financial statement schedule, when considered in relation to the basic financial statements taken as a whole, present fairly in all material respects the information set forth therein.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), ConocoPhillips’ internal control over financial reporting as of December 31, 2013, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (1992 framework) and our report dated February 25, 2014, expressed an unqualified opinion thereon.

/s/ ERNST & YOUNG LLP

Houston, Texas February 25, 2014

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