¡fuego! Just kidding. You know that we ban certain kinds of speech right? We criminalize speech that endangers people. We let people sue for speech that is slanderous or libel. We ban some commercial speech. The Democrats want to criminalize speech they consider "hateful" or "hurtful". . . assh~les. Should we allow limits on free speech? Why? And to what degree?
30 comments:
The speech we ban, like you have pointed out, is speech that represents falsehoods as truth. (Truth in advertising, libel, perjury, etc.) That's not censoring opinions, which is what the majority of "hate crime" legislation seems to be about. The point of any limits on free speech as such has always been for the preservation of truth, not feelings. That's the crux of the matter: preserving and protecting truth.
JG, Great observation!!! Opinion is protected, but not untruth. As an aside, truth is an absolute defense to claims of slander and libel.
Interestingly, I'm not sure that many on the left would accept that definition because they claim that truth is relative? Which should, if anything, lead to less regulation, not more. Yet they keep proposing greater and greater restrictions. I guess they aren't fans of free speech after all?
Very true. I have heard that argument from more than just liberals, however. During last year's primaries, we were involved in a race where we knew both candidates, and the challenger kept printing deliberately misleading and sometimes outright false information about the incumbent. Thankfully, he lost. After the race we confronted him about what he printed, he said, "Well, you only think I lied because you see truth as something that's black and white. I see truth as having shades of gray, so you can think I lied, and I can think I told the truth, and really, we're both right." I'm not sure how well that defense would hold up in court (he was, still is, a lawyer, a self-proclaimed conservative) but I guess he thought it would work behind closed doors.
JG, Sadly, you're right -- there are people on all sides who believe in relative truth, though it's the left that is much more inclined to believe that there is such thing as truth.
This guy sounds like some of the attorneys I know. He sounds like he's bad news. I'm glad he lost -- we don't need people like that in the party, no matter what views he claims to hold. . . this week.
The fact of the matter is that there is truth and there is opinion. Some people don't realize that their truths are actually opinion, but the law should be careful to ensure that it never intrudes on opinion or converts opinion into fact.
There is also the misuse of truth. That's why consumer law (and fraud) often focuses on "deceptive practices" rather than simply "untruths," because you can string together several truths to create a falsehood.
There should be no limits to speech, unless it endangers people safety--e.g. your example of yelling "fire" in a crowded theatre when there is no fire. That's not really free speech; that's just plain stupid. I think these limits have to be as black and white as possible, otherwise you open it up to disgruntled politicians who'll stop at nothing to control speech they don't agree with or that doesn't support their beliefs. Easier said than done, I know. I've always believed that if you don't like something, turn it off, plug your ears, close the book, change the channel, etc. And I'm talking in generalities, not in terms of someone intentionally slandering/libeling another.
This where my Libertarianism kicks in, say what you please. If it libelous or slanderous that’s what courts are for. In the case however of the Press, this is where I get irritated. The moral relevance arguments are a way for the 4th estate to propagandize and issue, in favor of their political biases. This IMO is criminal if not traitorous. This is a constitutionally guaranteed right “Freedom of the Press,” but in the ‘60s and ‘70s was sold to kids as a way to change the world, that’s not reporting the news but making the news. Freedom of speech, yes, propaganda, no!
Writer X, So you don't have a problem with a company telling lies? "Our product cures cancer" or "our competitor puts worms in his burgers"?
And when you say you aren't including slander and libel, do you mean that you would also allow those to be regulated (see my comment to Stan about what constitutes regulation) or that those should not be regulated?
Stan, When you say that there should be no limits, but then you say "that's what the courts are for", you are being contradictory.
Before you can have a right of action in a court, the law must determine that you have a right to redress. In other words, the legislature must decide that certain kinds of speech are harmful.
The only difference between court action and the more classic use of the term "regulation", is who gets to enforce the law -- a prosecutor or a private party.
Also, when you say "speech yes, propaganda no", what do you mean?
Andrew, sure I have a problem with companies telling lies but I don't need anyone to protect me from them; I can make my own mind up about a company's truthfulnesss. And, don't all companies over-exaggerate their products? Isn't a certain amount expected under "marketing"? I guess that I expect a certain amount of over-exaggeration. If I didn't, then I'd have to expect to be blissfully happy every time I took a sip of my Diet Coke, as that is the Zen experience their commercials promote. ;-) Buyer beware.
I don't know enough about slander and libel laws to completely answer your second question, but if someone knowingly and intentionally set out to slander/libel some person, that is truly hurtful. That crosses a line.
Writer X, What about lies that aren't really puffing, but are more hurtful -- like a drug maker who claims there are no side effects, even though the pill causes cancer?
That’s a damn good question counselor, …ha. I’ll Mr. Jefferson and friends take that one:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The 1st Amendment is a contradictory in nature left to endless interpretation from our brothers in black robes. To put it in street vernacular, “don’t write checks with your mouth, that your ass can’t cash.”
Andrew, wouldn't that be a product liability case? Isn't that a different issue than free speech?
Truthfully, I don't know. And I should probably have my head examined for debating a lawyer. Uncle! :-)
Writer X, I'm not debating (not saying you're right or wrong), I'm just asking.
Stan, The First Amendment is only contradictory because the Constitution also allows the government to pass laws that promote health, safety and welfare. If you read the First Amendment straight up in isolation, it would forbid any law that intrudes upon speech in any way.
I've lost track of the question. Can I buy a vowel?
Sure can! The Commentarama shop carries all the latest in vowels. We even have a few foreign vowels and the occasional novelty vowel!
I’m with you WriterX having a discussion with a lawyer about law is a losing proposition, …but, I’m a glutton for punishment!
“Speech yes, propaganda no.” I think that’s the difference between the state and the individual. I think it was Goebbels that had a quote to paraphrase, “tell a lie big enough often and keep repeating it, people will eventually come to believe it.” This was NAZI policy, repeated an sold by the German state. It didn’t start with the NAZIs but since the dawning of civilized man.
However, and evangelist on a street corner preaching the end of the world, his audience is who passes by, not sanctioned by the state. Or the blogosphere, free association of thoughts by free citizens without sanction by any government. (Watch out for Barry and his internet Czar in this regard.)
Freedom of speech is such a broad wonderful right, lawyers will be arguing the merits into perpetuity.
So Stan, is your point that we need more regulation of "government speech"?
Oh indeed! In a free society or Constitutional Republic, restraints on government are a must. The power is supposed to emanate from the people, when the state becomes self serving it needs it’s wing clipped, but quick. For now the ballot box still works?
I agree that it's unreasonable to say that there shouldn't be any regulation. But I don't want the government punishing people for having "the wrong beliefs."
Inciting to riot, yelling "fire" in a crowded theater, giving aid and comfort to the enemy in time of war, inciting to assasinate anyone, such as P.O.T.U.S. Likewise, inciting to overthrow the government has to be illegal.
That said, free speech should not entitle someone to break other laws such as disturbing the peace. For example, a person may use profanity, but should not be allowed to scream it on a busy sidewalk.
I'm sure there are others, but this is just what came to mind at midnight.
Congress shall make no law - abridging the freedom of speech...seems pretty clearcut to me. Abridge = to reduce/diminish. Any "law" that seeks to reduce or diminish ones 'freedom of speech' is an unconstitutional "law", no matter the reason, well intended or no such legislation is unconstitutional.
Stan, I agree that restraints on government are a must. So I take it you are arguing that the government should have no say in what is truth?
Jed, That's an interesting distinction between using profanity and using profanity loudly. How would you define the difference? (i.e. what kind of law would that result in)?
DCAlleykat, but remember, all rights granted by the Constitution are still subject to some regulation. Would you "de-illegalize" turning over troop positions to the enemy? What would you do about slander?
Andrew - to answer your question, I wasn't thinking of new legislation so much as trying to answer a question of my own: "how have we kept people from behaving obnoxiously in public up to this point?"
That really gets to the crux of the issue of to what extent do my rights end when they start to infringe on your rights? I guess, what I was trying to say is a person has a right to free speech, but historically, governments have passed statutes involving "disturbing the peace." Apparently these statutes, at least to my knowledge, have survived constitutional challenge, so apparently we cannot limit what you say, but we can prevent you from being a public nuisance, as long as the statutes are based not on the content of your speech, but where and at what volume. (I'm just firing from the hip, so I will let you, as an attorney, tell me if I am way off base.
Jed, You're very right. In the past, we haven't usually disallowed the content of speech (except as discussed above - danger, lies, etc.) but we have allowed government to put limits on how you can deliver that speech.
It's a very recent phenomina that we've found actions to constitute speech as well -- things like flag burning or not bathing.
With freedom of speech comes responsibility for the ramifications of exercising that freedom - hence treason, or slander. Congress cannot seek to create a speech environment which is treason or slander proof, to do so would bring about the loss of all inalienable rights.
DCAlleykat, True, but it must create the crime before something can be punished as treasonous or slanderous. In other words, it cannot stop the behavior, but it can set out punishments for it.
A paranoid person might think the government might use this to drive certain talk radio personalities off the airwaves.
Question: Who decides what will be truth this week?
Answer: The government.
Not good any way you slice it.
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