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Old 02-18-2010, 04:24 PM   #1
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Default US Constitution: 1st Amendment

I wanted to find out from others, particularly Americans, the definition of "free speech". I often see (mostly in forums) people crying out how their freedom of speech is being violated when some mod or someone else "thumps" (for lack of a better word) them in conversation. While I love hearing others opinions, I recognize that "free speech", as per the Constitution, is about the gov't silencing someone and not a private forum.

From the US Constitution:

Quote:
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.
What puzzles me is how this was translated for the Internet and meant that one could talk about anything. Granted, the original inception of the 'Net was to share information (originally scientific and then into various star trek newsgroups like alt.wesley.crusher.die.die.die), I'm not sure it was meant to be so open as to let anything go.

Opinions? Thoughts?



(I've put this thread here for now but recognize it can/could get heated. I put it here in hopes that those who don't like the Red Zone will also comment but if it gets too heated, it may be moved to there).
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Old 02-18-2010, 04:37 PM   #2
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I agree with you Linus. Many people keep crying out about their "Freedom of Speech" and cite the First Amendment. Trouble is, most who do are not even able to interpret the amendment correctly.

"Congress shall make no law", which means the government, not a private forum mod. This always makes me shake my head.

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Old 02-18-2010, 04:37 PM   #3
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Quote:
Originally Posted by Linus View Post
I wanted to find out from others, particularly Americans, the definition of "free speech". I often see (mostly in forums) people crying out how their freedom of speech is being violated when some mod or someone else "thumps" (for lack of a better word) them in conversation. While I love hearing others opinions, I recognize that "free speech", as per the Constitution, is about the gov't silencing someone and not a private forum.

From the US Constitution:



What puzzles me is how this was translated for the Internet and meant that one could talk about anything. Granted, the original inception of the 'Net was to share information (originally scientific and then into various star trek newsgroups like alt.wesley.crusher.die.die.die), I'm not sure it was meant to be so open as to let anything go.

Opinions? Thoughts?



(I've put this thread here for now but recognize it can/could get heated. I put it here in hopes that those who don't like the Red Zone will also comment but if it gets too heated, it may be moved to there).
I think people use the First Amendment as an excuse for bad behavior.

I also think most people have non idea how the Internet works and do not get that individual privately held websites can make whatever rules they want.

They think typing something on someone's website is the same as saying whatever they want in their own living room, and it is not.

PS, you mean the US right? Canadians are Americans too.
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Old 02-18-2010, 04:39 PM   #4
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And, how many US citizens have read the Constitution recently?

Like the Bible, people think the Constitution is way longer than it is and says many things it does not.
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Old 02-18-2010, 04:41 PM   #5
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Quote:
Originally Posted by apocalipstic View Post
I think people use the First Amendment as an excuse for bad behavior.

I also think most people have non idea how the Internet works and do not get that individual privately held websites can make whatever rules they want.

They think typing something on someone's website is the same as saying whatever they want in their own living room, and it is not.

PS, you mean the US right? Canadians are Americans too.
LOL.. Actually.. this is Canada's Freedom of Speech (from the Canadian Charter of Rights and Freedoms):

Quote:

Guarantee of Rights and Freedoms

RIGHTS AND FREEDOMS IN CANADA.

1.
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

FUNDAMENTAL FREEDOMS.

2.
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;
(c)
freedom of peaceful assembly; and
(d)
freedom of association.
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Old 02-18-2010, 05:01 PM   #6
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Quote:
Originally Posted by apocalipstic View Post
And, how many US citizens have read the Constitution recently?

Like the Bible, people think the Constitution is way longer than it is and says many things it does not.
True...

And, ummm... the Amendments to the US Constitution are the Bill of Rights:


The original Constitution, as proposed in 1787 in Philadelphia and as ratified by the states, contained very few individual rights guarantees, as the framers were primarily focused on establishing the machinery for an effective federal government. A proposal by delegate Charles Pinckney to include several rights guarantees (including "liberty of the press" and a ban on quartering soldiers in private homes) was submitted to the Committee on Detail on August 20, 1787, but the Committee did not adopt any of Pinckney's recommendations. The matter came up before the Convention on September 12, 1787 and, following a brief debate, proposals to include a Bill or Rights in the Constitution were rejected. As adopted, the Constitution included only a few specific rights guarantees: protection against states impairing the obligation of contracts (Art. I, Section 10), provisions that prohibit both the federal and state governments from enforcing ex post facto laws (laws that allow punishment for an action that was not criminal at the time it was undertaken) and provisions barring bills of attainder (legislative determinations of guilt and punishment) (Art. I, Sections 9 and 10). The framers, and notably James Madison, its principal architect, believed that the Constitution protected liberty primarily through its division of powers that made it difficult for an oppressive majorities to form and capture power to be used against minorities. Delegates also probably feared that a debate over liberty guarantees might prolong or even threaten the fiercely-debated compromises that had been made over the long hot summer of 1787.


In the ratification debate, Anti-Federalists opposed to the Constitution, complained that the new system threatened liberties, and suggested that if the delegates had truly cared about protecting individual rights, they would have included provisions that accomplished that. With ratification in serious doubt, Federalists announced a willingness to take up the matter of a series of amendments, to be called the Bill of Rights, soon after ratification and the First Congress comes into session. The concession was undoubtedly necessary to secure the Constitution's hard-fought ratification. Thomas Jefferson, who did not attend the Constitutional Convention, in a December 1787 letter to Madison called the omission of a Bill of Rights a major mistake: "A bill of rights is what the people are entitled to against every government on earth."


http://www.law.umkc.edu/faculty/proj...ghtsintro.html


Aye.. and then we can all ponder the minority leader of the US Senate referring to the Preamble as the Constitution!

Sometimes I am very thankful for having a pre-Proposition public school education in CA. We had to not only read the Constitution, but memorize the Bill of Rights. Today, in many states civics is not even being taught as it has been eliminated from many curriculums! This is the educational system from which our citizens will become voters! We often do reap what we do sow!!

Sorry, the rant of a former civics and history teacher............
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Old 02-18-2010, 05:10 PM   #7
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i wish people who feel that they're protecting/utilizing their 1st amendment (as if it's the last day of nordstrom-half-yearly and they're down to just one pair of "FIRST AMENDMENT") as solitary reason to get behind whatever idiotic propaganda, would realize that they're not *protected* from appearing *completely* and utterly inappropriate and ignorant. (which is "bad" and not "good") and stupid. and yes, i'm judging you (general) and your use of free expression.
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Old 02-18-2010, 05:17 PM   #8
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Originally Posted by AtLastHome View Post
True...

And, ummm... the Amendments to the US Constitution are the Bill of Rights:


The original Constitution, as proposed in 1787 in Philadelphia and as ratified by the states, contained very few individual rights guarantees, as the framers were primarily focused on establishing the machinery for an effective federal government. A proposal by delegate Charles Pinckney to include several rights guarantees (including "liberty of the press" and a ban on quartering soldiers in private homes) was submitted to the Committee on Detail on August 20, 1787, but the Committee did not adopt any of Pinckney's recommendations. The matter came up before the Convention on September 12, 1787 and, following a brief debate, proposals to include a Bill or Rights in the Constitution were rejected. As adopted, the Constitution included only a few specific rights guarantees: protection against states impairing the obligation of contracts (Art. I, Section 10), provisions that prohibit both the federal and state governments from enforcing ex post facto laws (laws that allow punishment for an action that was not criminal at the time it was undertaken) and provisions barring bills of attainder (legislative determinations of guilt and punishment) (Art. I, Sections 9 and 10). The framers, and notably James Madison, its principal architect, believed that the Constitution protected liberty primarily through its division of powers that made it difficult for an oppressive majorities to form and capture power to be used against minorities. Delegates also probably feared that a debate over liberty guarantees might prolong or even threaten the fiercely-debated compromises that had been made over the long hot summer of 1787.


In the ratification debate, Anti-Federalists opposed to the Constitution, complained that the new system threatened liberties, and suggested that if the delegates had truly cared about protecting individual rights, they would have included provisions that accomplished that. With ratification in serious doubt, Federalists announced a willingness to take up the matter of a series of amendments, to be called the Bill of Rights, soon after ratification and the First Congress comes into session. The concession was undoubtedly necessary to secure the Constitution's hard-fought ratification. Thomas Jefferson, who did not attend the Constitutional Convention, in a December 1787 letter to Madison called the omission of a Bill of Rights a major mistake: "A bill of rights is what the people are entitled to against every government on earth."


http://www.law.umkc.edu/faculty/proj...ghtsintro.html


Aye.. and then we can all ponder the minority leader of the US Senate referring to the Preamble as the Constitution!

Sometimes I am very thankful for having a pre-Proposition public school education in CA. We had to not only read the Constitution, but memorize the Bill of Rights. Today, in many states civics is not even being taught as it has been eliminated from many curriculums! This is the educational system from which our citizens will become voters! We often do reap what we do sow!!

Sorry, the rant of a former civics and history teacher............
We had to memorize it too and I have a copy in my office.

TN does teach Civics, but ummm retention seems to be bad.
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Old 02-18-2010, 06:03 PM   #9
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Quote:
Originally Posted by AtLastHome View Post
True...

And, ummm... the Amendments to the US Constitution are the Bill of Rights:


The original Constitution, as proposed in 1787 in Philadelphia and as ratified by the states, contained very few individual rights guarantees, as the framers were primarily focused on establishing the machinery for an effective federal government. A proposal by delegate Charles Pinckney to include several rights guarantees (including "liberty of the press" and a ban on quartering soldiers in private homes) was submitted to the Committee on Detail on August 20, 1787, but the Committee did not adopt any of Pinckney's recommendations. The matter came up before the Convention on September 12, 1787 and, following a brief debate, proposals to include a Bill or Rights in the Constitution were rejected. As adopted, the Constitution included only a few specific rights guarantees: protection against states impairing the obligation of contracts (Art. I, Section 10), provisions that prohibit both the federal and state governments from enforcing ex post facto laws (laws that allow punishment for an action that was not criminal at the time it was undertaken) and provisions barring bills of attainder (legislative determinations of guilt and punishment) (Art. I, Sections 9 and 10). The framers, and notably James Madison, its principal architect, believed that the Constitution protected liberty primarily through its division of powers that made it difficult for an oppressive majorities to form and capture power to be used against minorities. Delegates also probably feared that a debate over liberty guarantees might prolong or even threaten the fiercely-debated compromises that had been made over the long hot summer of 1787.


In the ratification debate, Anti-Federalists opposed to the Constitution, complained that the new system threatened liberties, and suggested that if the delegates had truly cared about protecting individual rights, they would have included provisions that accomplished that. With ratification in serious doubt, Federalists announced a willingness to take up the matter of a series of amendments, to be called the Bill of Rights, soon after ratification and the First Congress comes into session. The concession was undoubtedly necessary to secure the Constitution's hard-fought ratification. Thomas Jefferson, who did not attend the Constitutional Convention, in a December 1787 letter to Madison called the omission of a Bill of Rights a major mistake: "A bill of rights is what the people are entitled to against every government on earth."


http://www.law.umkc.edu/faculty/proj...ghtsintro.html


Aye.. and then we can all ponder the minority leader of the US Senate referring to the Preamble as the Constitution!

Sometimes I am very thankful for having a pre-Proposition public school education in CA. We had to not only read the Constitution, but memorize the Bill of Rights. Today, in many states civics is not even being taught as it has been eliminated from many curriculums! This is the educational system from which our citizens will become voters! We often do reap what we do sow!!

Sorry, the rant of a former civics and history teacher............


WHOOPS... that is pre Proposition 13 (anti-property tax proposition) up there..... passed in CA in the 1970's and responsible for most of the fall of CA's education downward spiral ever since.
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Old 02-18-2010, 06:19 PM   #10
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Quote:
Originally Posted by Linus View Post
I wanted to find out from others, particularly Americans, the definition of "free speech". I often see (mostly in forums) people crying out how their freedom of speech is being violated when some mod or someone else "thumps" (for lack of a better word) them in conversation. While I love hearing others opinions, I recognize that "free speech", as per the Constitution, is about the gov't silencing someone and not a private forum.
This is one of my pet peeves and has been for the two decades I've been online. People seem to interpret 'free speech' to mean "I can say any damn fool thing I want and no one can disagree with me!" Of course, if that were true, it would abridgment of the free speech rights of everyone else. Fortunately, that's NOT what the amendment says.

I keep thinking that I should add to my quotes file boilerplate around the following lines:

"I, as a private citizen, cannot meaningfully deny you your free speech rights. I am not the government. You have the right to say whatever you wish. I have the right to disagree with you."

Quote:
From the US Constitution:

What puzzles me is how this was translated for the Internet and meant that one could talk about anything. Granted, the original inception of the 'Net was to share information (originally scientific and then into various star trek newsgroups like alt.wesley.crusher.die.die.die), I'm not sure it was meant to be so open as to let anything go.
This is a fascinating question and one I'll have to ponder on.

Cheers
Aj
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Old 02-18-2010, 06:21 PM   #11
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Quote:
Originally Posted by AtLastHome View Post
WHOOPS... that is pre Proposition 13 (anti-property tax proposition) up there..... passed in CA in the 1970's and responsible for most of the fall of CA's education downward spiral ever since.
I think I'm one of the last pre-Prop 13 folks educated in California (although by the time I was graduating high school things were starting to fall apart). I remember my father going door-to-door *begging* our neighbors not to vote for Prop 13, claiming--with remarkable prescience--what would happen to the California education system if it passed. EVERYTHING he predicted has come to pass.

Cheers
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Old 02-18-2010, 07:33 PM   #12
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The First Amendment to the United States Constitution says that Congress shall make no law abridging the freedom of "speech." Close attention to these few important words reveals several issues demanding interpretation and clarification.

Note that the document uses the word "speech," although a long succession of court decisions has expanded this concept far beyond ordinary verbal communication. Protected expression now includes such non-verbal expression as wearing a symbol on one's clothing, dance movements, and a silent candlelight vigil.

Consider how the concept of "speech" has been broadened by the courts. What is "speech" for these constitutional purposes? Must it constitute communication? expression? expression of what? Must it use a language of some verbal or non-verbal sort to receive this protection? What do we mean by a language? Are there forms of expression which we would not want protected? Also note that the language is a prohibition on Congressional action. The First Amendment applies only when Congress passes a law abridging speech. Suppressions of speech are not violations of the First Amendment unless the State does the suppressing. The State could be either the Federal government or (now) a State government. Many mistakenly thank that any suppression of speech, including suppression by private citizens, violates the First Amendment. Such a private action might be objectionable for ethical or social reasons, but it does not present a constitutional issue.
Why it is that one might still object to these private suppressions of speech, even when the government is not involved. Are these ethical concerns? If so, what ethical principles are at stake? Should all citizens be urged on moral grounds to allow freedom of expression by all of their fellow citizens and not attempt to suppress that speech as private citizens?

Would the First Amendment be improved if it prohibited abridgement of speech by anyone, not just Congress? Should every citizen have a right to say anything at all with no suppression by fellow citizens? Are there times when private citizens not only could but should suppress the speech of their fellow citizens?Controversies about speech protected by the First Amendment seem to arise because the speech at issue is unpopular or controversial or highly offensive for various reasons. Yet a hallmark of the Bill of Rights is protection of minority views. If the First Amendment only protected popular speech, supported by the majority of citizens, then the constitutional protection would not be needed. Instead we could simply have a referendum with the majority deciding which speech should be allowed. In a sense, of course, Congressional representation constitutes a majority referendum. If the majority of citizens is presumed to speak through Congress, and if a majority of Congress votes to ban certain speech, then the First Amendment intervenes to prohibit that suppression by the majority.

Should we protect minority views? Are there minority views we should protect, while others should be suppressed? How should such a distinction be made? If a statement is offensive to someone, should it be suppressed? If it harms someone, should it be suppressed? what do we mean by harm?

What speech is protected?
Speech includes much more than verbal oration and need not include any words. The expression of artists, including the use of symbolism, is protected under the First Amendment. The wearing of armbands with a peace symbol was protected during the Vietnam War as symbolic speech protected under the First Amendment. Yet the burning of a draft card was not considered protected speech but an illegal behavior violating the Selective Service rules

Exceptions to Freedom of Expression Many exceptions to the First Amendment protections have been recognized by the courts, although not without controversy. Courts sometimes justify these exceptions as speech which causes substantial harm to the public, or speech which the Founding Fathers could not have intended to protect, or traditions that have long been part of the common law tradition from England that was the basis of our American legal system.
Rather than merely reciting the list of established exceptions, it is important to understand the rationale for making exceptions to free speech protection under the Constitution. The value of free speech sometimes clashes with other important values in our culture.

How should we weigh the relative importance of these competing social values? How do we balance free speech against racism, sexism, or anti-Semitism which promotes values we despise as a country? against speech which some consider a symptom of the decay of society's traditional values? against speech which directly results in physical injury to another person? Exceptions established by the courts to the First Amendment protections include the following:

Fighting words: In the famous case of Chaplinsky v. New Hampshire, the U.S. Supreme Court held that the First Amendment does not protect "fighting words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (315 U.S. 568, 572 [1942]) This famous exception is much discussed in recent decades, but rarely the basis for a decision upholding an abridgement of free speech.

This exception warrants scrutiny. Note that the harm involved is physical harm caused by someone else who was provoked by the speaker whose speech is being suppressed. The fact that someone else flies into a rage and causes physical harm results in justifying suppression of speech by another person!

It is worth considering why this exception has declined in acceptance. Are we now more skeptical of claims that people cannot control their actions? Do we demand the exercise of more responsibility by persons regardless of what inflammatory words they might hear? Are we more suspicious of claims of causal necessity in such situations? Note the irony that we are also witnessing an increase in the so-called "abuse excuse" in which we seem more likely to excuse someone's behavior because of something someone else did to them. Is this inconsistent with the decline in the fighting words exception?

(4) Incitement to crime: It is a crime to incite someone else to commit a crime, and such speech is not protected by the First Amendment.

It is easy to imagine highly unpalatable projects which arguably could be considered an incitement to crime. What if a fundamentalist religious extremist group publishes a guidebook in this country on how to commit terrorism in the United States, with detailed instructions on making bombs, maps showing the homes and offices of government officials, and so forth. Instructions alone would not seem to constitute incitement, so assume that the book will also include a statement from the religion's most revered leader urging that the guaranteed path to eternal bliss is following the instructions in the book. Given the presumed audience, might this be incitement to crime?


Sedition: Although not without controversy, the U.S. Supreme Court has upheld statutes which prohibit the advocacy of unlawful conduct against the government or the violent overthrow of the government. As with prohibitions discussed earlier, the expressions in question are assessed according to the circumstances. Academic discussion of the theories of, say, Karl Marx presumably would not be prohibited under such a test, especially in this post-Soviet era. The theoretical consideration and even endorsement of these views could not remotely be considered to be reasonable expectations of the actual overthrow of the government. But it is possible that an artist might develop a project, perhaps guerrilla theater or an exhibit, that urged the destruction of the United States (the "Great Satan") by extremist religious groups. The likelihood of success by the latter group would seem as improbable as the likelihood of success by contemporary Marxists.

If the discussion of Marx should not be prohibited as sedition, should we be consistent and allow discussion by the religious extremist? Are there any grounds upon which we could distinguish these situations?

Obscenity: In Miller v. California (413 U.S. 14 [1973]) the U.S. Supreme Court established a three-pronged test for obscenity prohibitions which would not violate the First Amendment:
(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Although much debated, this standard remains the law of the land, and elements of this language have been included in both the authorizing legislation for the National Endowment for the Arts and the Communications Decency Act (4) prohibiting "obscenity" and "indecency" on the Internet. The Communications Decency Act was struck down as unconstitutional by the U.S. Supreme Court in June 1997. The NEA legislation was been struck down as unconstitutional by lower courts but was upheld by the U.S. Supreme Court in 1998. One controversy over this exception to free speech is whether obscenity causes real harm sufficient to justify suppression of free speech. Does viewing obscenity make it more likely that a man will later commit rape, or other acts of violence against women, obviously real harm to another person? Does reading about war make it more likely that someone will start a war? Even if there is some evidence of such causal relationships, however tenuous or strong, is it sufficient to justify this exception to free speech? Alternatively, could the prohibition on obscenity be a reflection of moral values and societal standards which should more properly be handled in the private sector through moral education, not government censorship?

Another problem area is determining what counts as "obscenity". In Miller, the court tried to fashion a standard which could be adapted to different communities, so that what counts as obscenity in rural Mississippi might not count as obscenity in Atlanta or New York City. Is this fair? Do the people in those areas themselves agree on community standards? What is the "community" for art that is displayed on-line on the Internet?

Another controversy in the Miller standard is the exception for "serious literary, artistic, political or scientific value." Who decides what counts as "serious"? If some people consider Penthouse or the National Enquirer to be serious literature, is it elitist to deny them this exception from censorship as "obscenity"? Given the controversies in contemporary art (found objects, performance art, and so forth), what counts as artistic value? Has the Court solved the problem of defining "obscenity" or only made it more complicated?

In reviewing these classic exceptions to free speech, it does seem that real harm can be caused by at least some of these instances of speech. Following J.S. Mill, we could limit our restrictions to real harm -- physical or economic harm, not psychic or hypothetical harm. If real harm is present, then we should next address the causal relationship necessary to hold someone responsible for the harm caused by the expression. This is not easy, of course, but we do have models for determining when a causal relationship is sufficiently close ("proximate") to hold someone responsible. We also have experience in determining whether to hold people responsible based on whether a reasonable person knew or should have known the consequences of their actions.

Offense: Although rejected by American courts, some theorists argue that speech which is merely offensive to others should be another exception to the First Amendment.(5) In a court challenge to an NEA-funded exhibit, David Wojnarowicz: Tongues of Flame, David Fordyce and Yvonne Knickerbocker claimed that the exhibit caused them to "[suffer] a spiritual injury and that the exhibition caused offense to their religious sensibilities." The court rejected the claim, especially as "plaintiffs do not even allege that they have either seen the exhibition or studied the catalogue . . . [and thus] have failed to show that they have endured any special burdens that justify their standing to sue as citizens." Id. But the court left open the possibility that the plaintiffs might have a claim if "they had to confront the exhibition daily, . . . the exhibition was visible in the course of their normal routine, or . . . their usual driving or walking routes took them through or past the exhibition."

The complexities of this issue are highlighted when other examples are considered. What if an exhibit celebrated the practice of some religions of female genitalia mutilation? Should such exhibits be accorded the full protection of the First Amendment despite the horror which most feel about such "religious" practices? Are there some expressions which are so extremely offensive to many in the population that they should be banned by the government, even though they cause no real harm to anyway? By what criteria should this be decided?
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Old 02-18-2010, 08:56 PM   #13
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Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. In this formulation, I do not imply, for instance, that we should always suppress the utterance of the intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be most unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument, they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law, and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal.
(Karl Popper, The Open Society and Its Enemies)

This quote is core to my thinking about these issues. I'll post more on the subject when I'm not in class.

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Old 02-19-2010, 11:04 AM   #14
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I think it is also important to remember that Free Speech does not mean no one can disagree with you.

So much great information on this thread, great subject Linus, thank you!
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Old 02-19-2010, 11:59 AM   #15
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Default free speech and personal responsibility

I agree with Linus' post.
The point I want to make is about something called 'ego defenses'. I believe it was Freud who coined the term referring to the ego and the super ego. However, a lot has happened since then, etc.
There seems to be a propensity towards wanting to save face upon realizing that perhaps one has made a mistake or said something that was socially or otherwise wrong. At that point in time (right after the action), we all have a choice whether to take responsibility for our own thoughts, feelings, actions or not. Still many believe that by admitting their own humanity, which is to error; that they are somehow 'less than'; which couldn't be further from the truth. However, many may still carry unresolved guilt and possibly 'shame' issues and overcompensate to avoid inner emotional pain by justifying rather than taking reponsibility for their own stuff.

I prefer to think things through before I write and/or open my mouth; but it doesn't always happen that way... lol...

So, anyways... people want to use justifications, rationalizations, minimizations, etc.. to save face and avoid taking responsibility and sometimes it's conscious and sometimes it's not...

My opinion is that using the 1st amendment to justify one's own behavior to avoid taking reponsbility once called on it, is just that - a justification to save face. Constitutional law is an interesting subject and one that I have had the pleasure of being educated in the past through a course or two and it's interesting to me just how subjective it can be. Just as any other thought, idea, expression is subjective.

If i act like an ass in the forums and I'm called on it, I view it as an opportunity rather than some kind of violation of personal rights... clearly no one is being retained and/or being stripped of all their personal rights - such as being arrested and detained.
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Old 02-19-2010, 02:33 PM   #16
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The First Amendment to the United States Constitution says that Congress shall make no law abridging the freedom of "speech." Close attention to these few important words reveals several issues demanding interpretation and clarification.

Note that the document uses the word "speech," although a long succession of court decisions has expanded this concept far beyond ordinary verbal communication. Protected expression now includes such non-verbal expression as wearing a symbol on one's clothing, dance movements, and a silent candlelight vigil.

Consider how the concept of "speech" has been broadened by the courts. What is "speech" for these constitutional purposes? Must it constitute communication? expression? expression of what? Must it use a language of some verbal or non-verbal sort to receive this protection? What do we mean by a language? Are there forms of expression which we would not want protected? Also note that the language is a prohibition on Congressional action. The First Amendment applies only when Congress passes a law abridging speech. Suppressions of speech are not violations of the First Amendment unless the State does the suppressing. The State could be either the Federal government or (now) a State government. Many mistakenly thank that any suppression of speech, including suppression by private citizens, violates the First Amendment. Such a private action might be objectionable for ethical or social reasons, but it does not present a constitutional issue.
Why it is that one might still object to these private suppressions of speech, even when the government is not involved. Are these ethical concerns? If so, what ethical principles are at stake? Should all citizens be urged on moral grounds to allow freedom of expression by all of their fellow citizens and not attempt to suppress that speech as private citizens?

Would the First Amendment be improved if it prohibited abridgement of speech by anyone, not just Congress? Should every citizen have a right to say anything at all with no suppression by fellow citizens? Are there times when private citizens not only could but should suppress the speech of their fellow citizens?Controversies about speech protected by the First Amendment seem to arise because the speech at issue is unpopular or controversial or highly offensive for various reasons. Yet a hallmark of the Bill of Rights is protection of minority views. If the First Amendment only protected popular speech, supported by the majority of citizens, then the constitutional protection would not be needed. Instead we could simply have a referendum with the majority deciding which speech should be allowed. In a sense, of course, Congressional representation constitutes a majority referendum. If the majority of citizens is presumed to speak through Congress, and if a majority of Congress votes to ban certain speech, then the First Amendment intervenes to prohibit that suppression by the majority.

Should we protect minority views? Are there minority views we should protect, while others should be suppressed? How should such a distinction be made? If a statement is offensive to someone, should it be suppressed? If it harms someone, should it be suppressed? what do we mean by harm?

What speech is protected?
Speech includes much more than verbal oration and need not include any words. The expression of artists, including the use of symbolism, is protected under the First Amendment. The wearing of armbands with a peace symbol was protected during the Vietnam War as symbolic speech protected under the First Amendment. Yet the burning of a draft card was not considered protected speech but an illegal behavior violating the Selective Service rules

Exceptions to Freedom of Expression Many exceptions to the First Amendment protections have been recognized by the courts, although not without controversy. Courts sometimes justify these exceptions as speech which causes substantial harm to the public, or speech which the Founding Fathers could not have intended to protect, or traditions that have long been part of the common law tradition from England that was the basis of our American legal system.
Rather than merely reciting the list of established exceptions, it is important to understand the rationale for making exceptions to free speech protection under the Constitution. The value of free speech sometimes clashes with other important values in our culture.

How should we weigh the relative importance of these competing social values? How do we balance free speech against racism, sexism, or anti-Semitism which promotes values we despise as a country? against speech which some consider a symptom of the decay of society's traditional values? against speech which directly results in physical injury to another person? Exceptions established by the courts to the First Amendment protections include the following:

Fighting words: In the famous case of Chaplinsky v. New Hampshire, the U.S. Supreme Court held that the First Amendment does not protect "fighting words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (315 U.S. 568, 572 [1942]) This famous exception is much discussed in recent decades, but rarely the basis for a decision upholding an abridgement of free speech.

This exception warrants scrutiny. Note that the harm involved is physical harm caused by someone else who was provoked by the speaker whose speech is being suppressed. The fact that someone else flies into a rage and causes physical harm results in justifying suppression of speech by another person!

It is worth considering why this exception has declined in acceptance. Are we now more skeptical of claims that people cannot control their actions? Do we demand the exercise of more responsibility by persons regardless of what inflammatory words they might hear? Are we more suspicious of claims of causal necessity in such situations? Note the irony that we are also witnessing an increase in the so-called "abuse excuse" in which we seem more likely to excuse someone's behavior because of something someone else did to them. Is this inconsistent with the decline in the fighting words exception?

(4) Incitement to crime: It is a crime to incite someone else to commit a crime, and such speech is not protected by the First Amendment.

It is easy to imagine highly unpalatable projects which arguably could be considered an incitement to crime. What if a fundamentalist religious extremist group publishes a guidebook in this country on how to commit terrorism in the United States, with detailed instructions on making bombs, maps showing the homes and offices of government officials, and so forth. Instructions alone would not seem to constitute incitement, so assume that the book will also include a statement from the religion's most revered leader urging that the guaranteed path to eternal bliss is following the instructions in the book. Given the presumed audience, might this be incitement to crime?


Sedition: Although not without controversy, the U.S. Supreme Court has upheld statutes which prohibit the advocacy of unlawful conduct against the government or the violent overthrow of the government. As with prohibitions discussed earlier, the expressions in question are assessed according to the circumstances. Academic discussion of the theories of, say, Karl Marx presumably would not be prohibited under such a test, especially in this post-Soviet era. The theoretical consideration and even endorsement of these views could not remotely be considered to be reasonable expectations of the actual overthrow of the government. But it is possible that an artist might develop a project, perhaps guerrilla theater or an exhibit, that urged the destruction of the United States (the "Great Satan") by extremist religious groups. The likelihood of success by the latter group would seem as improbable as the likelihood of success by contemporary Marxists.

If the discussion of Marx should not be prohibited as sedition, should we be consistent and allow discussion by the religious extremist? Are there any grounds upon which we could distinguish these situations?

Obscenity: In Miller v. California (413 U.S. 14 [1973]) the U.S. Supreme Court established a three-pronged test for obscenity prohibitions which would not violate the First Amendment:
(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Although much debated, this standard remains the law of the land, and elements of this language have been included in both the authorizing legislation for the National Endowment for the Arts and the Communications Decency Act (4) prohibiting "obscenity" and "indecency" on the Internet. The Communications Decency Act was struck down as unconstitutional by the U.S. Supreme Court in June 1997. The NEA legislation was been struck down as unconstitutional by lower courts but was upheld by the U.S. Supreme Court in 1998. One controversy over this exception to free speech is whether obscenity causes real harm sufficient to justify suppression of free speech. Does viewing obscenity make it more likely that a man will later commit rape, or other acts of violence against women, obviously real harm to another person? Does reading about war make it more likely that someone will start a war? Even if there is some evidence of such causal relationships, however tenuous or strong, is it sufficient to justify this exception to free speech? Alternatively, could the prohibition on obscenity be a reflection of moral values and societal standards which should more properly be handled in the private sector through moral education, not government censorship?

Another problem area is determining what counts as "obscenity". In Miller, the court tried to fashion a standard which could be adapted to different communities, so that what counts as obscenity in rural Mississippi might not count as obscenity in Atlanta or New York City. Is this fair? Do the people in those areas themselves agree on community standards? What is the "community" for art that is displayed on-line on the Internet?

Another controversy in the Miller standard is the exception for "serious literary, artistic, political or scientific value." Who decides what counts as "serious"? If some people consider Penthouse or the National Enquirer to be serious literature, is it elitist to deny them this exception from censorship as "obscenity"? Given the controversies in contemporary art (found objects, performance art, and so forth), what counts as artistic value? Has the Court solved the problem of defining "obscenity" or only made it more complicated?

In reviewing these classic exceptions to free speech, it does seem that real harm can be caused by at least some of these instances of speech. Following J.S. Mill, we could limit our restrictions to real harm -- physical or economic harm, not psychic or hypothetical harm. If real harm is present, then we should next address the causal relationship necessary to hold someone responsible for the harm caused by the expression. This is not easy, of course, but we do have models for determining when a causal relationship is sufficiently close ("proximate") to hold someone responsible. We also have experience in determining whether to hold people responsible based on whether a reasonable person knew or should have known the consequences of their actions.

Offense: Although rejected by American courts, some theorists argue that speech which is merely offensive to others should be another exception to the First Amendment.(5) In a court challenge to an NEA-funded exhibit, David Wojnarowicz: Tongues of Flame, David Fordyce and Yvonne Knickerbocker claimed that the exhibit caused them to "[suffer] a spiritual injury and that the exhibition caused offense to their religious sensibilities." The court rejected the claim, especially as "plaintiffs do not even allege that they have either seen the exhibition or studied the catalogue . . . [and thus] have failed to show that they have endured any special burdens that justify their standing to sue as citizens." Id. But the court left open the possibility that the plaintiffs might have a claim if "they had to confront the exhibition daily, . . . the exhibition was visible in the course of their normal routine, or . . . their usual driving or walking routes took them through or past the exhibition."

The complexities of this issue are highlighted when other examples are considered. What if an exhibit celebrated the practice of some religions of female genitalia mutilation? Should such exhibits be accorded the full protection of the First Amendment despite the horror which most feel about such "religious" practices? Are there some expressions which are so extremely offensive to many in the population that they should be banned by the government, even though they cause no real harm to anyway? By what criteria should this be decided?
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Old 02-19-2010, 03:22 PM   #17
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While this website is viewed by the public, I wouldn't call it a public forum. We agree to abide by the TOS, which would be this site's rules. There is no loss of freedom when you agree to follow a set of rules.

I think the freedom of speech has to do with or towards our government. You can get fired for what you say at work, such as against another employee and now using swear words. I had a two friends that worked together and they said something about another employee in an email at work (the email was sent between themselves) but it was found and they were fired. I cursed at work and the next day was talked to by my supervisor. It seems I said the wrong thing in front of some guy and he was offended. I worked in a factory, everyone cursed - but it was a lesson learned and I was glad they talked to me instead of firing me.

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