Civil rights, including those in the First Amendment, are not absolute. Regarding speech, you also can't harass people, threaten them, defraud them, incite violence, distribute copyrighted information that isn't yours, interfere with others' activities (sing loudly in a movie theater), etc. Private entities such as your employer can restrict your speech in many ways.
> often there's posts on HN about how the UK and all other Western European countries are totalitarian because they don't have unrestricted free speech
I haven't seen these posts. Do you have an example handy?
> often there's posts on HN about how the UK and all other Western European countries are totalitarian because they don't have unrestricted free speech
I don't see that in the comments you cite - nothing related to totaliterianism, unrestricted free speech, or comparison to the US. The comments just look like critiques of some laws related to speech, similar to critiques of US laws. Maybe I misunderstand.
I don't have a source handy, I can find one later if you desire. During Melbourne's lockdowns there was consistent criticism from US based commenters about the lack of freedoms in Australia.
funnily enough, the USA has much less protective laws against self incrimination than e.g. Denmark. In Denmark, you, as charged, may lie on the stand however much you please.
Something like 95% of criminal cases are resolved with plea deals and not trials, and legal representation from public defenders has very limited resources.
Cash bail results in many people imprisoned without trial: After arrest, the court requires bail. Poor people can't afford it, so they are jailed until trial, which can be over a year. The impacts go beyond the (very serious) loss of freedom: They lose jobs, their family loses income, dependents (children, elderly) lose caregivers.
Firstly, though I see the concept behind cash bail I don't agree with it. But people has a misconception of the likely result of removing it.
Judges now, don't need or required to use cash bails, they choose to, they can release people without cash bail now. either into the person's own recognizance, or even into the care of others.
If a judge doesn't feel the person is likely to return to their following court date, and they can't leverage financial burden as a means to insure it, they are likely just to forego the process and hold them.
Both the California and US constitutions guarantee a right to a speedy trial, and California criminal code has specific provisions on how quickly trials must begin. Who is holding the California government responsible for this? What an outrage.
Wowzer, right. That is...pretty compelling. And incredibly illegal. Does California not know it doesn't have a right to just incarcerate people for no official reason?
> Shutting up and refusing to answer a question makes it very clear that you have something to hide
It really doesn't, at least in a court of law. Although if the police are interrogating you, they will almost certainly try to convince you that it does.
I don't think you're ever required to any answer any questions from the police, whether avoiding self-incrimination or otherwise. You're only required to answer a question in court, and even then only if the answer wouldn't be self-incriminating (or a few other narrow exceptions I think; the concept of the court not being allowed to compel someone to testify against their spouse is a common trope in media, although I'm honestly not certain how accurate it's portrayed). You also aren't required to take the stand when accused of a crime; while you can choose to do so, you're also free to just have your lawyer make your case via the questioning of witnesses instead of having to answer questions directly yourself.
That said, my understanding is that you're _not_ allowed to plead the 5th if the answer wouldn't actually be self-incriminating, so it's a weird thing where you're only allowed to not answer a question by essentially stipulating that you _did_ do something illegal that would be disclosed if you answered truthfully. If they can prove you weren't actually avoiding answering due to self-incrimination but plead the 5th anyways, I'm pretty sure you can be charged with contempt of court. Having never been on a criminal jury, I can't say I know exactly how it would play out in deliberations, but it's hard for me to imagine that it doesn't affect things at all; even if a jury isn't technically allowed to consider it an admission of guilt, from a legal perspective pleading the 5th seems pretty explicitly either a non-legally-admissible admission of guilt or a crime of contempt of court in itself, so I don't see how the law isn't basically forcing the jury to conclude that you've committed a crime one way or another. The question would then boil down to which of the two crimes the jury thought you had committed (the one you were accused of or contempt of court), and while they're not supposed to be deciding the question of the latter, it seems likely that the jury's view will be tainted by this.
Of course, all of this only applies if you did actually commit a crime; if you genuinely didn't commit any crimes, you wouldn't be lying under oath when stating that instead of pleading the 5th. The jury still might think you did commit the crime though and are just doubling down on lying under oath to try to hide that, though.
If you choose to plead the fifth, the prosecution is absolutely forbidden from bringing that up the courtroom, much less using it to insinuate your guilt.
Any lawyer in the US will tell you not to speak to the police or prosecutor. At all.
Not true. In the Kyle Rittenhouse case, despite being nationally televised to millions, the prosecutor questioned why he didn't answer questions post arrest
And the judge immediately halted the trial, reamed out the lawyer as being unimaginably unprofessional, and threatened that he might toss the whole case if the prosecutor ever insinuated something like that again.
yes, and there is a high chance that with either a less vigilant judge, or a less caring defence (see: public defender), it would not have been stopped.
The point is: this case was televised to millions and he STILL questioned it.
Then following up on blibble's question: What is the difference to the UK and other western countries that mostly also have free speech with what looks to me very similar restrictions?
Honest question, like blibble, I don't really understand it either?
The US's first amendment is rather unique amongst Western nations. Basically it says "the government cannot infringe on this inalienable right", that is the government cannot govern speech. Here's the actual language
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 key phrase "or abridging the freedom of speech, or of the press".
As far as I know, this kind of language is absent from other Western nations. For example, Canada jails people for criticizing those of Islamic persuasion. [0] Note, the article doesn't record what the accused actually said. Here's a wikipedia overview of hate speech laws by country [1], though it is wikipedia, so take it with a grain of salt. Here's a somewhat relevant piece from Reason that takes an anti-hate-speech stance [2] where the author details the unconstitutionality of hate speech laws.
"Free speech" as we understand it in the US is unique in the world.
As far as the restrictions at state and federal level, these are considered unconstitutional, and you'll see a large number of them struck down in various courts across the country. Those in power definitely seek to expand their powers and fortunately we have a law that allows the citizenry to push back against that.
Rather than posting a poorly-worded, short-on-facts news story about the guy in Hamilton saying some hate speech, you could cite the actual Canadian Criminal Code which is far more specific and worthy of discussion: https://www.criminal-code.ca/criminal-code-of-canada-section...
Framing it as "Canada jails people for criticizing those of Islamic persuasion" is disingenuous, as if Canada specifically has laws about some specific religion or faith.
Without knowing what was actually said that the courts deemed to be promoting hatred, "Canada jails people for criticizing those of Islamic persuasion" is a valid interpretation. Citing vague laws doesn't make this any more reasonable.
IMO the worthwhile fact to share on an HN thread is "in Canada there are specific laws against inciting hatred through speech etc." and linking that criminal code entry, rather than mentioning and linking a specific news case that we have no real details on. At least the criminal code is a clearly-defined thing we can learn from and internalize, rather than a specific case where the public was not given enough information to make an informed judgement about (as per most news stories, IMO).
Both are important really - the law and how it is interpreted by the courts. That we don't know the details of the case doesn't make it less concerning - on the contrary, media not reporting the relevant facts (in this case, what exactly was said/done) only makes this more concerning. Especially if the lack of reporting is due to fear of running foul of the same censorship laws.
Earlier it was listed "..you also can't harass people, threaten them, defraud them, incite violence, distribute copyrighted information.."
So where are these exceptions innumerated? Just purely from a technical point of view, why can defrauding be made illegal, but hate speech can not?
It actually seems the number of exceptions is quite limited - so I never understood why they were not spelled out explicitly (like in an subsequent constitutional amendment for instance). It seems to undermine the authority of the bill of rights. The original text makes no provision for exceptions...
It’s not strictly about the words in those exceptions.
In the case of fraud, it’s not the speech itself, it’s the part where someone gives you money (or other consideration) under some agreement or understanding, and doesn’t actually get what was promised. There’s nothing intrinsically wrong with what you promised, it’s your failure to deliver.
Threatening people? The illegal part is not that you used words at them specifically, it’s that you caused them to credibly fear for their life and safety. You could just as well do that without words, just standing outside their place with a baseball bat making menacing gestures. Harassment similarly may use words, but the objectionable part is often subjecting them to your words or actions or presence directly, to cause distress, instead of leaving them alone in peace.
“Hate speech” as a problem generally is about the content of the speech itself. You might wish to convince people that others in a group are bad and worthy of being considered bad. Your audience is typically people like yourself, or third parties who you wish to sway, and if you are in a public place you are mostly not following around an individual to be hated, or telling them you are about to do them violence. (If you do, it may in fact be harassment or intimidation.)
Given that some things that don't use words—for instance, art, money—have been ruled as being considered equivalent to speech for the purposes of First Amendment protections, I don't think the rationale you give there is likely to be the one used to justify the listed exceptions to the First Amendment.
In all the cases listed, the speech in question is being used to directly and (at least usually) intentionally harm or interfere with another person. I believe this is a case where looking to the Framers' intent rather than the strict wording of the amendment is worthwhile in determining how best to apply it. It seems obvious that they did not intend to make all forms of fraud and threats legal with no recourse (and I imagine there is some jurisprudence that cites specifics to this effect).
The specifics have been determined in case law. I'm not a lawyer, so I can't give a more detailed example. I can, however, give some examples (Mass Media Law at Utah State comes bubbling back into my mind, what a fun class).
Yelling "fire" in a crowded theater, for example [0]. Another comment in this thread talks about the "clear and present danger" doctrine that came from the case. That case was followed by the Brandenburg v. Ohio [2] case in 1969, which instituted the current methodology used for determining what is "allowed" speech. That rule/methodology is called the "imminent lawless action" rule.
Yeah, I'm not a lawyer but the system seems honestly nonsensical. They found the law inconvenient, so the court just effectively added a "clear and present danger" clause to the law. If there were problems with people abusing their freedom of speech, then you'd think the natural response would be to amended the bill of rights - and not just a bunch of unelected judges dreaming up something that seems "reasonable"
I honestly can't speak to "reasonable", but this format of jurisprudence has been common for the better part of 4000 years (see Jewish law and case law that pops up in the Bible's old testament, especially the tanach).
The biggest problem with the trope is that it plants in people's heads the idea that there was EVER a Supreme Court case where the defendant was accused of yelling "fire!" in a crowded theater.
In reality, the phrase was an analogy used to justify the conviction of a man who committed the heinous crime of… making and distributing leaflets opposing the draft in World War I. So for all the high minded rhetoric in the First Amendment, it may not provide all that much protection if your speech inconveniences the government sufficiently.
One might also be tempted to draw inferences from the fact that Schenk, the man whose speech was considered not worth protecting, was a socialist pacifist, while Brandenburg, whose free speech was considered more worthy of protection, was a KKK leader promoting violence against Blacks and Jews. In the US, protecting the civil rights of Nazis has become a litmus test of civic virtue across the political spectrum. Unfortunately, that protection is extended far less vigorously and consistently to other political views.
Case law doesn’t exist in the United States of America.
You might be thinking about medieval England, or ancient Persia, where a king or judge’s word becomes law.
In the USA, people are judged individually and are equal before the law.
One exception, that is traditional, but not enumerated in law, is that the Supreme Court can strike down a law that it deems unconstitutional, but may not amend or make new laws itself. Lower courts havee Ed no such power.
First, every court of appeal can strike down a law as unconstitutional. The Supreme Court is only special in that there is no further appeal.
Second, case law absolutely determines the interpretation of each text, and each court is mildly bound by its own precendent (via stare decisis), and completely bound by the precedent of superior courts.
Third, there is no tension between these facts and people being judged individually and being equal before the law. The law must (in principle) be applied equally to everyone.
Wow, American exceptionalism claims have now gone so farad to claim that freedom of speech is unique to America!
Not even the historical claim holds, as constitutional protections for free speech in France and Sweden predate the American constitution.
> For example, Canada jails people for criticizing those of Islamic persuasion
He was arrested, presented to court, and acquited. Therefore he was not "jailed". Also: the charge was inciting/organising a hate crime, in the wake of a killing of a Muslim father and his 15-year old daughter, not "criticising those of Islamic persuasion".
Could it be possible to illustrate with an example just for clarity? How does this compare to, say, the Netherlands? For example what are things that are possible in the United States that are not possible in the Netherlands? I would assume there are things that are not legal but not penalised in the latter but under certain conditions would be addressed and penalised and there's no way around it, but would like to know of an example just to make it super clear for me. Thanks!
In the US it is legal to advocate hate, such as denying Holocaust or promoting National Socialism or white supremacy. The courts have repeatedly struck down bans on hate speech. Not sure about the Netherlands, but this is illegal in many European countries.
Idk the US specifics but hate speech in Spain is something govt has used to prosecute others in the name of so many things and in so many situations that to me, it means nothing. Just having a negative opinion is "hate speech" if the right person gets annoyed and goes for you.
It is a very powerful tool to shut up adversaries and it is extremely harmful for real opinions and real free speech.
Radiolab has a great episode about how this more broad application of the first amendment sort of came about due to Oliver Wendell Holmes changing his mind about what actually constitutes a "clear and present danger" between two Supreme Court cases in 1919.
Take a person who believes that "there needs to be a country for white people and white people are innately better able to form productive societies". This person would clearly be a white nationalist and a white supremacist, right?
But they may also have no hate towards other ethnicities or desire their deaths. If pressed, they might even say that their vision of a "pure" society isn't worth the deaths of minorities that would come about if they tried to implement it.
I think too often we confuse the stereotypical example with the definition. The stereotypical white supremacist hates minorities, but the definition itself doesn't require it (I know of no surveys that would tell us what proportion of white supremacists match the stereotype).
You can't be a white supremacist without thinking other races are inferior. That's hateful by definition. They are stereotyping an entire race in a negative manner. They are denying the basic humanity of billions for what end? The Third Reich didn't immediately start throwing Jewish people into death chambers. They had to build up to that moment by dehumanizing their victims.
My whole point is that you (and many others) are using a new definition of "hate" which doesn't match the old one. "Hate" used to be an emotion, a feeling, a dislike of something and a wish to see it destroyed.
One can feel superior to something without having any dislike of it or a wish to see it destroyed. I consider myself superior in many respects to the rocks in my back garden, but I neither dislike them nor wish them destroyed.
A supremacist may consider themselves smarter or prettier or taller than some other group, but that does not necessarily mean they want to destroy the other group.
I kind of get your point (i think?) but maybe you shouldn't try to belittle the use of the word "supremacists" in the context of modern language. Try looking up a definition if you are unsure. Maybe you disagree on the definition but that is probably the mainstream one...
At your prompting I've tried to look up a definition, but there doesn't seem to be a commonly accepted one... merely usage where the scope of the terms varies from one source to another.
Any left-wing should be allowed, any right-wing stuff should be denied.
Few exceptions exist on the western side, Spain is probably the most remarkable case. Reason why you wouldn't often hear much about what happens there, unless it is something negative to bash the right-wing people there.
Note that including denying the Holocaust under "advocating hate" is basically making up a new concept and using an existing word (hate) for that concept.
It comes across as very dishonest.
There are people who genuinely think the Holocaust was exaggerated or didn't happen at any substantial scale who bear no ill will to Jews, seeing it simply as a question of historical fact of limited relevance to the modern day.
Denying that a targeted genocide happened or saying it's exaggerated is absolutely hateful. I'm not sure how it's of limited relevance when it's within living memory. When (some) Americans start to chant "The Jews will not replace us!" I think it's very relevant to our modern era.
I would really recommend doing a cursory, bare-minimum reading of the associated Wikipedia page [0] and citations. Plenty of historians revise the events surrounding the Holocaust to provide less biased and more nuanced information. Very different from taking an assumption as fact (the holocaust did not happen) and working backwards from that.
I think, as ever with these things, the name is misleading. It's not "hate". We've no idea what people are feeling. Why do we a) think someone feeling "hate" is enough to suspend speech, and b) think if we want to justify censorship, we can't just say it out loud?
Why not just say "we ban speech that says the Holocaust didn't happen"? Why get it classified as hate and then because somehow hate is censorable get it autocensored? It seems somehow disingenuous.
Of course there is. People might be ignorant. If a kid is just taught that the Holocaust was made up, no hate is required for them to believe it. People need to stop pretending they can divine people's emotions. What matters is their actions.
What does the word "hateful" mean? The old meaning is "full of the emotion of hate". Someone who thinks the Holocaust wasn't real could in theory have no strong feelings about it and think it has no relevance to their lives.
It is not required by definition that Holocaust denial is hateful (using traditional definition of the word "hate"). Nor is it required by human psychology (for example, you could have someone who read an unfortunate sampling of books as a child and took "disbelieve anything the victors of a war say about their enemies" as gospel and never got educated on the details).
My goodness. That raises questions. I hope you are merely naive.
"I don't hate them! I just think they got a bit worked up over a few arrests. They're too sensitive. I don't blame them for it, but when you deal with them you've got to remember they can be prone to distorting the truth."
> The US's first amendment is rather unique amongst Western nations.
> As far as I know, this kind of language is absent from other Western nations. For example, Canada jails people for criticizing those of Islamic persuasion.
The US is not unique in having constitutional protections of free speech. For example part of the Canadian constitution is the "Canadian Charter of Rights and Freedoms", which forms part of the Constitution Act 1982. Section 2 of which says "Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;" – that's essentially saying the same thing as the US First Amendment.
In Europe, article 9 of the European Convention on Human Rights (ECHR) protects "Freedom of thought, conscience and religion". The Convention is quasi-constitutional in nature – while it is an international treaty whose members are in theory free to leave at any time, in practice quitting it is impossible for many European countries–membership in the ECHR is a requirement for EU membership, so no EU country is going to get away with denouncing it. And many national constitutions have equivalent provisions, such as articles 4 and 5 of the Basic Law of Germany.
One difference – the text of the US constitution doesn't contain any exceptions to the 1st Amendment, whereas the Canadian constitution, the ECHR, Germany's Basic Law, etc, explicitly state that freedom of speech/etc can be subject to limitations. However, in practice, even though the US constitution never explicitly says that the 1st Amendment has exceptions, the Supreme Court has always held that it does, although the scope of these exceptions has varied due to the evolving opinions of the Supreme Court – for the first century of the US's existence, SCOTUS allowed sweeping exceptions to the 1st Amendment; in the 20th century, it narrowed the allowed exceptions significantly, and developed some highly complex case law on which exceptions are allowed.
The real difference is actually nothing to do with the text itself, it is all about case law – since the 20th century, SCOTUS has been very strict in only allowing quite limited exceptions to the 1st Amendment. Courts in Canada, Europe, etc, have always been much more liberal in allowing exceptions to the right of free speech. Now, possibly the difference between a text which provides no explicit exceptions versus a text which does may have influenced that, but I don't think it was decisive. It was not historically inevitable that SCOTUS would start interpreting the 1st Amendment much more strictly in the 20th century, if different justices had been appointed, it easily could have decided to stick with its 19th century case law which allowed greater exceptions to it. Conversely, even though Canadian/European/etc texts explicitly mention exceptions, their courts could have chosen to interpret those explicit exceptions far more narrowly, producing a result much closer to that of the US, if they had wished to do so.
Similarly, in Australia it is generally much easier to win a defamation case than in the US.
However, there is one interesting difference – under Australia's uniform national defamation law (adopted in 2005), corporations cannot sue for defamation. (There is an exception for small businesses, with less than 10 employees.) So, the recent Dominion vs Fox News lawsuit would have been impossible in Australia.
Hm, not quite sure I can follow the _unique_ part.
E.g. german constitution is quite similar:
```
Article 5
[Freedom of expression, arts and sciences]
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour.
(3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.
```
(2) notes that there _are_ limits, but if I understood the concept of gag orders and also wolverine876's answer correct, thats the same for the US:
```
Civil rights, including those in the First Amendment, are not absolute. Regarding speech, you also can't harass people, threaten them, defraud them, incite violence,
```
In Germany Nazi symbols are strictly banned but you are allowed to name soldiers killers. My hunch is that calling a veteran or active member of the armed forces of the US a killer would not go so well and might very well end in a slander suit.
When you free speech is restricted still seems pretty arbitrary to me [shrug].
You can call US service members killers all you want. In fact "baby killer" is a relatively common refrain during protests aimed at the military. Maybe in the UK with their asinine slander laws you'd have to be more quiet but that's pretty clearly first amendment protected territory in the US.
SLAPP suits come from massive sources of capital which have enough counsel either on retainer or simply have enough money that they don't miss ~$50k on a whim to get back at someone who they think besmirched them that one time. That doesn't really apply to US service members.
SLAPP suits are filed by the defendant, ie the person who said the thing.
They're a response to being sued. If a lawsuit is clearly bogus, you can get it thrown out extremely quickly and the other side usually has to pay your attorneys.
Not all states have them and not all states that have them, have good ones.
> Strategic lawsuits against public participation, or strategic litigation against public participation, are lawsuits intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
Anti-SLAPP suits are filed by the person who said the thing. And yes some states have good anti-slapp protections but that means the rest of Americans don’t enjoy that freedom.
You could get sued, but you would almost certainly win, as evidenced by the Westboro Baptist Church who won a Supreme Court case after being sued for witnessing their Christian faith with messages like "Thank God for Dead Soldiers" and "You Are Going to Hell" at a soldier's funeral:
“Police say the man targeted people on social media and promoted hatred against them after an attack in London, Ont., in June, where four members of a family were killed.”
Does that sound like criticism to you? It reads like harassment to me.
I don't know what the man said, only what the authorities reported. This is part of the danger of "hate speech" laws; if speech is deemed dangerous, discourse can be hidden behind public safety concerns and then wholly dismissed. It is then left to those who police speech to determine what is acceptable public discourse and what is not.
In New Zealand where we don't have a specific constitution or amendments we have a set a laws ^1 that end up in the same place.
An example is libel, which both countries have laws against. In NZ such laws are debated in parliament and voted on just as in the US. However in the US there was an additional objection based on it violating the first amendment but then the law was made anyway so it seems politicians in the US can make laws that override amendments in specific situations. The US also has their Supreme Court which seems to play a far more active role than NZ's and also more powerful in that it can creates precedents in the interpretation of laws for example allowing students to wear items of symbolic protest in school.
^1 In 1990 we got a law called the Bill of Rights Act which included freedom of expression.
I think while this is a popular way to think about these things, it doesn't offer enough explanatory power for when things seemingly "go wrong":
Rights afforded by a state are restrictions on a state's power over its subjects. But as the state holds ultimate authority, the only way these rights are upheld in practice is through a system of self-imposed indirection and bureaucracy that mostly exists to limit the power of any one individual operating the state, rather than the state as a whole.
The First Amendment means whatever the state wants it to mean. The Supreme Court can make a case-specific ruling one way or another but it intentionally holds no direct power. A police officer can literally get away with killing you if they can construct a scenario that gives them sufficient justification to do so. The problem with intelligence agency is that by necessity they have less red tape holding them down and they're thus in practice far less limited in how much power they can wield.
States are authoritarian and oppressive by default. They're only held back by self-imposed limitations. But those limitations only exist at the behest of the states themselves. Try and openly plan to dismantle a state (using violence or not) and most states will abandon any pretense of freedom of speech in a second.
> Civil rights, including those in the First Amendment, are not absolute. Regarding speech, you also can't harass people, threaten them, defraud them, incite violence, distribute copyrighted information that isn't yours, interfere with others' activities (sing loudly in a movie theater), etc. Private entities such as your employer can restrict your speech in many ways.
That's all true and should be true, but it's also possible to take these limitations too fare, and we have.
You cannot express or advocate viewpoints that "harass people (beyond a some limits), threaten them, defraud them, incite violence, distribute copyrighted information that isn't yours, interfere with others' activities (sing loudly in a movie theater), etc."
For example, someone could not express the viewpoint that 'thebigwinning sexually assaulted coworkers and stole money at their last job'. It would slander you (an exception to free speech that I omitted in the GP) and you would be entitled to damages.
Nor could someone express to an angry crowd the viewpoint that 'the bigwinning should be assaulted', nor could someone selling cryptocurrency express the viewpoint that 'cryptocurrency is a safe, stable investment for unsophisticated investors', etc.
That's exactly what I'm not saying. These contrived examples only strengthen my view.
> sing loadly in a movie theatre.
Perfect example. Inappropriately making sounds with your mouth, not holding an illegal belief.
> express to an angry crowd the viewpoint
The issue is the context of the angry crowd, not the content of beliefs. Do you believe the US will penalize me for believing crypto currency is safe and stating that publically?
> thebigwinning sexually assaulted coworkers and stole money at their last job'
They are indeed allowed to believe that. They can't be taken to jail for holding that view of me.
Now if they tried to get me fired with false evidence that would be a problem. If they caused damage to my business reputation without evidence that could result in civil damages.
The examples are not contrived, they are commonplace legal issues (though any such issue is rare in any one person's life).
We are talking about speech, not thought - expression, not belief. You said "you can express and advocate for any view point", not that 'you can believe any viewpoint'.
Yes, all speech depends on context. The significance of speech is its impact on other people; it is communication. You can say whatever you want in the shower.
you absolutely can sing loudly in a theater, but you don't have a right to demand you can keep on doing it. It's a private location, so they have every right to throw you out and ban you. similarly to how you don't have a right to say whatever you want without being moderated on Twitter or Reddit.
the fire one is basically anything that incites panic can get you into legal hot water, and if there are injuries or death as a result some form of manslaughter charges probably because ultimately you were responsible.
You absolutely can. It just has to be nonspecific. "Kill all lannisters" is fine. "Kill x lannisters in y mall at z time" is not. See : Brandenburg v Ohio, Schenk v US, Hess v Indiana.
>interfere with others' activities (sing loudly in a movie theater),
lmao what? You can absolutely do that. the theater will kick you out but you can absolutely not be arrested for it. what an absurd claim.
>you also can't harass people
You can absolutely do that, to a degree.
>distribute copyrighted information that isn't yours
Not really related to 1A
>Private entities such as your employer can restrict your speech in many ways.
That's not 1A. 1A specifically applies to the government.
Summarised as "rights [...] are not absolute", this is a really weird statement. I confess I don't understand what makes a "civil right" different from an actual "right", to you.
>Civil rights, including those in the First Amendment, are not absolute. Regarding speech, you also can't harass people, threaten them, defraud them, incite violence, distribute copyrighted information that isn't yours, interfere with others' activities (sing loudly in a movie theater), etc. Private entities such as your employer can restrict your speech in many ways.
So the First Amendment is basically just the demo. And other western countries, oft criticized, just didn't have as nice a demo as that, but offer more or less the same features and gameplay.
Technically not jail, there's only a fine allowed for the crime of "outrage à personne dépositaire de l'autorité publique" (insulting a public authority figure) and "injure au président de la République" (insulting the president of the republic).
That's only true if you have a very surface level understand of law and how it attempts to solve real-world problems.
It's nice to say "all speech should be free!" in theory but then, when faced with a situation where a mob boss says "please go kill that person" or ringleader whips up a mob into a riot. Should a judge just say "well, he was just exercising his First Amendment rights!" and ensure no consequences befall that person?
A person enters my home and says things I find offensive. Should the First Amendment prevent me from removing that person from my home for that reason?
I decide to leak trade secrets of my employer for profit. Should the First Amendment protect me from being fired and sued for this?
>when faced with a situation where a mob boss says "please go kill that person" or ringleader whips up a mob into a riot. Should a judge just say "well, he was just exercising his First Amendment rights!" and ensure no consequences befall that person?
Isn't that covered by actual murder (or conspiracy to commit murder if it isn't seen through) charges, unrelated to free speech?
>A person enters my home and says things I find offensive. Should the First Amendment prevent me from removing that person from my home for that reason?
Isn't that covered by the right to invite (or throw out) whatever guest you want at your home? You have the same right even if they don't say things you find offensive, heck, even if they just tell you pleasant things...
>I decide to leak trade secrets of my employer for profit. Should the First Amendment protect me from being fired and sued for this?
Isn't that covered by copyright law (or similar)?
The point wasn't "practical limits to free speech" regarding a "mob hit" request or some non-existant and never argued obligation to let people in your house if they speak lest you prevent them from expression (?), but how more abstract (or open to interpretation) restrictions can be used to effectively limit actual free speech.
Not to mention "private entities such as your employer can restrict your speech in many ways", like a not so uncommon case of you saying something they don't like on your (unrelated to work) personal social media, in which they can just fire you. Or the social medium itself can censor you.
Making the FA protections kind of moot, in a time when it isn't the government that has to do the censoring anymore, while the public just gathers on 3-4 tech behemoths platforms.
> Isn't that covered by actual murder (or conspiracy to commit murder if it isn't seen through) charges, unrelated to free speech?
> Isn't that covered by the right to invite (or throw out) whatever guest you want at your home?
> Making the FA protections kind of moot, in a time when it isn't the government that has to do the censoring anymore, while the public just gathers on 3-4 tech behemoths platforms.
I don't understand your points. You're both mixing concerns and splitting them, seemingly at random.
The examples you brought up as arguments to why free speech can't be absolute (which I didn't argue for in the first place) are contrived and unrelated to free speech.
They are also already covered by existing laws, such as laws against conspiracy to commit murder, about the right of exclusion, etc. If anything I'm separating concerns, mixed up for no good reason.
As for my statement about FA, it's pointing how its protections are rendered moot, since they don't apply to private businesses and thus don't protect speech (the kind that matters, not mob hits) in places where the public discourse really happens nowadays. So, it's not "sufficient free speech protection" anymore.
I added it to further the discussion, what with FA being the very topic of this subthread, and not some randomly "mixed concern"...
The First Amendment supersedes law by determining whether it can be law at all, so whether it's covered by "law" is actually only half the story.
> The examples you brought up as arguments to why free speech can't be absolute
I started with deliberately stupid examples to make my point: Free Speech was always clearly limited, by necessity.
> it's pointing how its protections are rendered moot
That in itself is debatable. What evidence do you bring that this is somehow worse than it used to be? It used to be the case that, to get _any_ significant speech, you had to get your work published. Now you can just shoot it off on Twitter, Reddit, HN, take your pick.
>I started with deliberately stupid examples to make my point: Free Speech was always clearly limited, by necessity.
Which is neither here, nor there. Conspiracy to commit murder, as per the "mob boss gives an order example" would always be illegal regarless of our "free speech" stance, and the First Amendment didn't come into play determining whether that "[could] be law at all".
It was rather the other way around: the First Amendment was drafted with the certainty that such a thing isn't about free speech and will always be illegal.
> It was rather the other way around: the First Amendment was drafted with the certainty that such a thing isn't about free speech and will always be illegal.
This isn’t really backing up your point that the First Amendment isn’t sufficiently protecting free speech.
I thought that the First Amendment was about not allowing government to restrict speech and doesn't cover private issues such as between individuals or between an employer and an employee?
With the mob boss example, wouldn't the charge be something like conspiracy to commit murder rather than prosecuting the instruction itself? i.e. saying the words is not in itself illegal, but the intention to conspire to get the person to commit crime on your behalf is the illegal part and the instruction is evidence.
> I thought that the First Amendment was about not allowing government to restrict speech and doesn't cover private issues such as between individuals or between an employer and an employee?
Absolutely, it is. However, I interpreted the comment I replied to as suggesting the First Amendment is not sufficient free speech protection.
> Private entities such as your employer can restrict your speech in many ways.
Fun fact: Europe actually has better protections for free speech for employees. Even if you're a hardcore Nazi taking part in actual Nazi rallies, unless you're wearing company clothing or are a high-ranking corporate official, you can't get fired for that. And when you, say, contribute to an open source project in your non-work time on your own computer, your employer doesn't get any rights to that code.
There is absolutely no consequences to anybody for this. If you're going to ask how US citizens tolerate such blatant abuse, and why they don't do something about it - that's a very good question. Please get back to me if you find any answer to it.
Yes, the thing people gloss over is that laws are only as good as the people ruling on them, and not only is the process of selecting supreme court judges in the US a farce, one of them is openly defending his own corruption now.
In such cases, a well written, clear law on freedom of speech only increases the distance between what people think they have, and what they actually have.
Well, due process is a right co-equal to free speech, so which rights override which others in which circumstances will come down to legal precedent.
My understanding is that the FBI or other non-judicial body cannot unilaterally issue a gag order. Subpoenas and gag orders related to them are granted by judges.
(Which isn't to say that the relationship between the judicial branch and law enforcement bodies is always pure and equal)
Well, the founding fathers intended for the First Amendment to apply only to acts of Congress, and maybe not even then (for example, just six years after ratifying the Bill of Rights, founding father and second President John Adams signed the Sedition act [0], which criminalized false and malicious statements against the government).
It took over 125 years before Supreme Courts started reinterpreting the First Amendment to apply to some government actions that weren't acts of Congress, but there are still tons of situations where regular people can restrict free speech. For example, in Frederick v. Morse, while the Olympic torch was running through some town in Alaska, a public high school student unfurled a banner that read "bong hits 4 Jesus". Despite this not being on school grounds and the student not going to school that day, the school suspended him explicitly because of the speech on his banner, but the SC said that's fine.
(Sidenote: I wouldn't look to the SC for coherent reasoning; the SC has been an absolute dumpster fire for all but the Warren court and parts of FDR's court. Hell, three current Justices (Roberts, Kavanaugh, and Coney-Barrett) worked on George W Bush's legal team in the democracy-negating Bush v. Gore case)
You seem to be misunderstanding the First Amendment. CSMA, classified information, defamation, copyright, etc. are all not permitted under the first amendment. Not to mention that gag orders are approved by a court and can be appealed.
> 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.
seems pretty clear to me, at least for gag orders
less so for the other stuff you mentioned (could you argue pirated Disney movies are speech? probably not)
And the writers of the 1st Amendment went on to pass the Sedition act of 1798.
> That if any person shall write, print, utter. Or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them. or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
Welcome to America. Our laws contradict each other and its all about politics. The Supreme Court figures out where the line is drawn and what is, or isn't, legal according to the Constitution.
With regards to 1st Amendment, the limit is drawn today at Libel, Slander, "Fire in a Crowded Theater", pornography, and many other restrictions upon "free speech". Gag orders included.
> With regards to 1st Amendment, the limit is drawn today at [...] "Fire in a Crowded Theater"
No, and it never was. That was an obiter dictum that didn’t accurately reflect the state of the law in the decision in which it appeared, and the actual holding in that case itself (now regarded as an intense intrusion on core political speech) is no longer operative.
It's a catchy turn of phrase that gets stuck in the mind, but it was also an rhetorical device neither in a decision that has since been substantively overruled, not an actual example of an existing limit on free speech.
Well, if that particular phrase is poisoned, I guess I could just say "Hobbit" instead, which is owned as a trademark IIRC by the Tolkien estate and they're very litigious about it.
You can't say "Hobbit" in your own stories. But you can say "Halfling", and that's how people tend to get around that problem. Blonde Thor is Disney/Marvel (Historical Thor was a redhead IIRC, so Blonde Thor is Disney/Marvel Trademark), etc. etc. Plenty of restrictions on Free Speech in practice.
You can't use it to market your stories or other products, and there's some manners of use innthr body of a book that might run some risk of liability for dilution or tarnishment, but...
Of course you can. You can write about hobbits, make youtube videos discussing them, whatever. There's a lot of fanfic on hobbits out there. You can make fun of hobbits.
If you want to use copyrighted characters and it's not fair use, then no.
Libertarian website argues Libertarian viewpoints. News at 11.
I'm more inclined to believe Supreme Court Justice Alito over a Libertarian website. Especially because a sitting Supreme Court Justice literally will preside over the case and make a decision based on their own ethics/process/whatever.
An entire article that starts off with "BTW: Supreme Court Justice is wrong on subject" is... well... that's not how this works. The Supreme Court justice literally defines (or at least, is 1/9th of the definition) of our country's legal interpretation.
If the Supreme Court says "Obamacare is a tax", then its a tax. No if, and, or buts about it. It can be as ridiculous or contrived an argument they want, its the purview of the Supreme Court. They are the final say on any of these legal matters.
And unless "reason.com" (or any other libertarian source) somehow manages to get the ear of the other Supreme Court Justices to believe their argument, I think I can safely ignore their article there.
But they know that. I'm guessing they're just trying to clickbait readers and make somewhat sketchy arguments for more clicks + plant more articles that are aligned to libertarian values (as is the point of reason.com).
1. It was falsely shouting fire in a crowded theater, and it was not formative of the opinion itself (Schenck vs United States) but rather an aside.
2. Schenck vs United States was largely overturned by Brandenburg vs Ohio, but this aside was still non-jurisprudential.
3. I am unfamiliar with Justice Alito’s opinion on the matter and you didn’t cite it, so with no context I will only temporarily defer to you for the purpose of saying this: SCOTUS makes jurisprudence through the rulings and opinions they hand down when they take a majority vote in conference, draft opinions and sign on to them. One Justice does not make jurisprudence over a statement which itself was never jurisprudential.
Reason wears their ideological stripes on their sleeves, but this is still essentially a myth that doesn’t die and a fuller explanation of it isn’t a matter of ideology.
You still shouldn’t falsely shout fire in a crowded theater, as people will die. You also shouldn’t pretend a fire isn’t there or part of the show either as people will also die. Basically, if there’s a fire in a theater you’re in, just be glad for modern building and fire codes.
> 2. Schenck vs United States was largely overturned by Brandenburg vs Ohio, but this aside was still non-jurisprudential.
This here is the evolving nature of the court that I want to highlight most of all however.
In 1919, the Supreme Court believed one thing. Later, in 1969, half-a-century later, it believed another thing and overturned the earlier ruling.
As an organization, the Supreme Court tends to try to be consistent. But its not always true, and certainly in these days where we've had a dramatic change in the makeup of the court + filled it with young justices, we're going to see a big change in how the court writes opinions in the years, and decades, to come.
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Laws are written. Constitutional Amendments are written. A few years ago, the 4th Amendment protected a woman's right to privacy and therefore Abortion. That's no longer true today. Etc. etc. Just a modern quickie example about how changing opinions can change our understanding of long-standing laws (or Constitutional Amendments) from the 1700s.
Generally speaking, the Supreme Court is trying to do what's right for our court system. To have laws interpreted consistently over time, and across the country.
The goal is to be consistent over time but it must also still maintain a reactionary posture to the cases brought before it. When there is a difference in opinion between earlier and later jurisprudence, later jurisprudence takes precedent and to be blunt, sometimes earlier courts get it wrong and later courts recognize this.
> A few years ago, the 4th Amendment protected a woman's right to privacy and therefore Abortion.
Due process clause of the 14th amendment actually was the citation under the portions of Roe v Wade not overturned by Planned Parenthood v Casey prior to them both being overturned in Dobbs. The due process clause is often used to read into law from the bench things which are not written into law by Congress or the States under the doctrine of substantive due process, and the issue with that doctrine comes down to: if Congress didn’t say it, and the States didn’t agree to it (Constitution), then is it really actually Federal law? So far the answer seems to be: temporarily yes, and on shaky ground until either Congress addresses it or a future court does. That a court can overturn its own precedents is why if we wish for them to stick, you write them into statute.
Going back to the First Amendment, most of the seeming contradictions in our free speech law really are addressed in the first 5 words of the First Amendment: “Congress shall make no law”. Courts are not Congress, and our Judiciaries have habits and traditions that predate the Constitution and are rooted specifically in the English common law, especially among the States which is why you can be found civilly liable for defamation in most States, and then the standard is high and the extent to which it is applicable is curtailed more with the First Amendment than it would be without it.
> An entire article that starts off with "BTW: Supreme Court Justice is wrong on subject" is... well... that's not how this works. The Supreme Court justice literally defines (or at least, is 1/9th of the definition) of our country's legal interpretation.
No, a majority of the current Supreme Court is what defines jurisprudence on a subject.
There are crazy (and non-crazy) minority opinions all the time that don't amount to anything. A later Supreme Court can even repudiate an earlier one.
So it's true that this could change someday, and maybe Alito would even be in the majority then, but until and unless that happens, the "fire in a crowded theater" example is still dicta from an old case that's not good law.
in the UK: Parliament has unlimited power and people talk quite a bit about formal constitutions being a good model to be followed
it seems a bit sad the attempt to protect the population against government using a formal constitution doesn't seem to work in reality (even when the wording is as clear as day)
Answer: The Supreme Court decides the definition of things. Its only unconstitutional if the Supreme Court says so.
That's how the USA can get away with... I dunno... the Office of Censorship in 1941. (https://en.wikipedia.org/wiki/Office_of_Censorship). Definitions change, not only due to different members on the Supreme Court, but also due to different circumstances (WW2 meant that the Supreme Court was willing to ignore the obvious incursion into the 1st Amendment, at least temporarily)
You do have a King though. What would happen if the PM went to see him to form a government and they disagreed? The King is the one with armed guards, military rank and a fortress.
As part of his coronation, the King has sworn an oath to uphold the Law and to respect the primacy of Parliament. Not appointing the PM and his government has serious consequences as the PM is the leader of Parliament, which is the institution that has actually restored monarchy after the Glorious Revolution and which actually bankrolls the armed forces, and which was ultimately elected according to the Law by the citizens.
De facto means in fact. Given that the king does no governing no, he is not, in fact, the ruler. You may be looking for de jure, though I question even that.
The king of the UK still has to respect the Law. Being king does not mean that one can do as one pleased, or that there are no checks and balances. The last English king who tried to become an absolute ruler caused the English Civil War and was put on the chopping block by Parliament, as a matter of fact.
In the constitutions of many other countries, you will find an explicit clause saying (to effect) "rights and freedoms granted by this constitution are not absolute and exceptions can be made to them for sufficiently grave reasons".
Unlike those other countries, the US Constitution never contained such an explicit clause, but the Supreme Court has always read it as if it did. The Supreme Court feels quite justified in doing that, because if you go back and look at the debates in Congress and the state legislatures over the proposal and ratification of the Bill of Rights, it is clear that its proponents always intended it to be interpreted as if such an "exception clause" existed, even though (for whatever reason) they chose to leave it as implicit rather than explicitly putting it in the text.
I don't like these gag orders but I can see times when they are needed. Each person has a right to a fair trial. So the courts sometimes have to suppress information from the public to avoid potential jurors seeing information about the case. They must only judge guilt based on what they hear in court not in the media.
The information that so-and-so parties provided some information (without disclosure of that information) in response to a lawful request will usually not predudice a trial.
What gag orders are for is a) avoiding tipping off the subject of an active investigation b) avoiding general knowledge or disclosure of key sources of information and investigative methods used by law enforcement and c) concealing the general scale, nature and purpose of surveillance activities from the general public.
So the whole of society must be kept in the dark? No, jurors should simply judge on the evidence presented in court, and those looking for unwarranted (sadly, not literally) secrecy should look for other ways to continue their insidious conspiracies against people.
>jurors should simply judge on the evidence presented in court
I don't know if humans are able to ignore evidence they have heard outside of court. We are not good at only including one set of information when making judgements.
Right, but you're advocating keeping the whole of society in the dark versus relying on twelve people to be fair, which is what they're told to do. I would say that the latter is better than the former because of the immense harm keeping the whole of society in the dark. It's a numbers game.
The way I propose does not preclude a fair trial. The way you propose (i.e. the status quo) precludes an informed electorate and introduces perverse incentives for those in power.
Rather than disagree you might point out why with reference to the points I’ve made. Comity is only an end in itself in, ironically, cultures that do not value free speech and hence, put truth beneath social harmony. The idea that I could be put on a jury and be unwilling or unable to ignore what a journalist, of all people, had relayed about a case, is risible, and I can bet I’m not alone.
I think that the way you propose does preclude a fair trial as it biases the jury but we've already covered that and come to different conclusions.
I agree that free speech has significant value and restrictions should only be put in place when required to uphold other rights.
I'm sure you're not alone in your opinion that a jury is able to ignore what they've heard about a case in the media. However you do disagree with the current judicial system of most developed nations. That doesn't necessarily make you wrong. I think there is merit to the argument you're making, I just am not convinced that people can ignore information like that.
They aren't compatible with the first amendment. But at this point, those rights are a joke and and all three branches of our government regard the constitution as toilet paper.
Having been on the receiving end a bit, the gag orders don't come from the FBI directly. The FBI can ask you not to say anything, but you can ignore that without any legal repercussions. Any gag order that matters is issued by a judge.
There are plenty of laws that aren't compatible with our constitution. Judges will laugh a lawyer out of the courtroom who uses constitutional arguments, and your case will go nowhere.
> but then apparently the police (FBI) can restrict the free speech of Americans without any court involvement at all?
are you sure about this? As far as I understand "gag orders" can only come from a judge. Of course the FBI could request strongly that you not talk about something but I'm not sure it would hold legal weight.
They do need a court. Subpoenas are issued and overseen by the judicial system, any gay order has to be signed by a judge. The FBI can't unilaterally censor you.
often there's posts on HN about how the UK and all other Western European countries are totalitarian because they don't have unrestricted free speech
but then apparently the police (FBI) can restrict the free speech of Americans without any court involvement at all?
I really don't understand