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free speech
January 21st, 2019
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solderpunk, visiblink and yargo have a great thread going on the
topic of discrimination. Here's the most recent link to it, but
there's a history you can dig through [0].
(TXT) [0] visiblink - Of nature, nurture, and dinosaurs
In visiblink's first post on the topic the discussion began with
a comedian who repeatedly ridiculed a disabled child and a human
rights tribunal that then fined him for it. That's where I'd like
to focus my very narrow band of thought on the topic.
While the discussion that spawned has been interesting it has been
focused on what constitutes an appropriate topic of criticism. Is
it based on whether that factor is in full control of the
individual, is it related to their culture or wealth, and does
that play a factor in what is appropriate. Great stuff... go read.
The part that stuck out to me was the concept of free speech and
protected speech, their terminology, and the psychology involved
in each. Yargo, in a simplistic and unfair summary to him, stated
that he'd prefer to say whatever he likes without fear of legal
consequences. That's a great place to start.
There is some psychological system at play which places the idea
of protection on the individuals who are criticized, or who are
the subject of hate speech. Media discussions surround the idea of
sensitivity and others refer to "snowflakes". Protection is
demanded by the sensitive, or so it seems.
We know in reality that it is the speech which is the subject to
protection instead. It is not the targets of the speech, but the
speaker who needs focus here, right?
The distinction is minor because the relationship between the
speaker and target haven't changed. But that's not the whole
story, is it? If we use terms like "free speech" it hides part of
the story. When we say "protected speech" now we get at the crux.
Protected by whom, and from whom?
There are other parties involved: the speaker, the subject, and
the protective entity and the persecutive entity. So when we look
back at the discussion of protected speech now we can fit everyone
into context:
A speaker's (subject) speech toward someone (object) is
potentially protected (protector) from persecution (persecutor).
Who is the persecutor? In the case of the United States and the
1st amendment from which most of this discussion flows for
Americans it is the US government itself.
Who is the protector? Well, again in this case, the US government.
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.
Congress is limited in their powers by the Constitution from
abridging the freedom of speech.
Done, right? libertarians have at it. Except, no. Oliver Wendell
Holmes comes knocking next...
In the landmark case of Schenck v. United States, Holmes stated,
The most stringent protection of free speech would not protect a
man in falsely shouting fire in a theater and causing a panic
Okay, so all speech is does not warrant protection under the first
amendment. Where do we draw the line? Here we get into Public
Forum Regulation, Prior Restraint, Expressive Conduct, Defamation,
and so on. Most appropriate to our discussion is the topic of
defamation, and inciting, provocative, or offensive speech.
Here we go to the courts to decide where the line should be. Did
that speech represent an individual freedom, or did it put at risk
the lives and liberty of others, such as by listing the home
addresses of families of abortion doctors? The line gets blurry,
right? We're not talking about feelings being hurt anymore. Our
objects of discussion potentially got much more serious.
Back to my focus: the protector and persecutor are the same
entity, though perhaps different departments of it. That entity
is given the power to determine what it protects from itself.
That's pretty weird when you word it like that, but so be it.
What stands out though is that the justification for NOT
protecting speech is required based on the wording of the
constitution. The US government, at least, needs to justify a
decision to step in and persecute a speaker (at least to itself).
Where was I going with this? I don't remember. I tried writing
this at work and got interrupted every five minutes. I think I was
getting to something about the psychology of speech protection,
asking an outside entity to come in and protect you from itself in
some cases and not others. There was going to be a really cool
reference to 80s sitcoms in there too.
Meh, now I'm hungry and totally forgot where I was going. So, um,
thanks for sticking with me through the first half of a well
thought-out argument. Marsha will validate your parking on your
way out.
Cheers!