Agreed. While the Supreme Court has sensibly concluded that there should be limits to free speech (see 'The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action.'[1]), it would be interesting to understand how the legal argument that begins with the postulate:
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.
can yield, 'We believe consumers put stock in endorsements and we want to make sure they are not being deceived.'
Free speech protection in American law is with its limits. Speech itself isn't protected if it is directed to incite or produce imminent lawless action. See Brandenburg v. Ohio.
There seems to be a common misconception around free speech: that it is limitless. It isn't.
"As the Supreme Court held in Brandenburg v. Ohio (1969), the government may forbid “incitement”—speech “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action” (such as a speech to a mob urging it to attack a nearby building)."
We are going to have to acknowledge that the First Amendment right to free speech is not as broad as was set forth in Brandenburg v. Ohio (1969), and that it is within the government's purview, and the public interest, to curtail hate speech and radicalization with civil and criminal penalties.
"The Court held that government cannot punish inflammatory speech unless that speech is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'"
What are you talking about? There are obvious and practical limits on 'free speech'. In fact, the Supreme Court has unanimously upheld a "fighting words" doctrine ensuring that speech which is by its nature injurious or likely to cause breach of the peace is not protected.
An excerpt from the 9-0 decision makes a pretty concise case, especially the latter part:
"Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' [Cantwell v. Connecticut]"
We can argue about definitions of 'obscene', 'likely to cause a breach of the peace', etc. But to treat freedom of speech like an unassailable, all-or-nothing fundamental assumption is not helpful.
>> The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.
>> The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.
>> This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S. 513, 536—537, 78 S.Ct. 1332, 1346, 2 L.Ed.2d 1460 (Douglas, J., concurring.) They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and conscience.
One example, where it was pointed out there are already limitations on free speech quite strictly defined under law.
Your second point is impossible to argue, because you request that someone argue against a subjective and infinitely definable 'optimal' that you projected.
Just to clarify: under Brandenburg v. Ohio (395 U.S. 444 (1969)), such speech can be punished (by the government) only if it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action"; abstract advocacy of illegal violence is protected speech.
You may be correct on 1), but take a look at http://en.wikipedia.org/wiki/Brandenburg_v._Ohio There are a few tests that have to be met. The key piece is "The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action."
On point 2), I still think there is a clear difference in kind between government and private entity bans. The government can enforce their bans with legal threat of violence (i.e. You can go to prison). Another point of distinction is that within private spaces there may be implicit endorsement by the private space owner. For instance you have the public right to promote a political candidate, but if you do it by planting a sign on my lawn, it is implied that I endorse that candidate. I may not want to make that endorsement and restrict you from posting your sign, but that is not nearly the same as the government saying "No one may publish endorsements for Communist Party members".
The reactionary, populist, view is that we must defend free speech at all costs. This is not actually the constitutional law in the USA, as interpreted by the Supreme Court. This quote from a SCOTUS ruling summarises it really well [1]:
“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
Court jurisprudence over time continues to favor more free speech rather than less. Even abominations like Schenck v. United States have been overturned with Brandenburg v. Ohio constraining the limitations to inciting imminent lawless action (e.g. intentionally trying to start a riot).
> Freedom of speech and expression, therefore, may not be recognized as being absolute, and common limitations or boundaries to freedom of speech relate to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, dignity, the right to be forgotten, public security, and perjury. Justifications for such include the harm principle, proposed by John Stuart Mill in On Liberty, which suggests that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."
Because the purpose and value of speech are subjective, speech must be protected even when it appears to have no purpose. That was the principle at stake in Synder vs. Phelps.
Consider the facts of the case. Members of the Westboro Baptist Church protested on public property, over 1,000 yards away from the funeral of Matthew Snyder. Although the signs were certainly offensive, they did not mention members of the family by name so as to start a fight. And they did not urge people to commit acts of violence. In other words, the protest clearly did not meet the standards of fighting words or incitement to violence — categories of speech that are unprotected by the First Amendment.
I agree that the protest was morally despicable. So did the justices. Still, Westboro members participated in a peaceful protest on public property. To ban that behavior would set a very dangerous precedent.
Free speech protects your right to not be arrested or otherwise punished by GOVERNMENT institutions for things you say or actions classified as speech. But it does not protect speech that is intended and likely to cause violence or intended as threat or intimidation.
As ruled in Manhattan Community Access Corp et al vs Halleck et al the Supreme Court's CONSERVATIVE majority ruled that: "The Free Speech Clause of the First Amendment prohibits only governmental, not private, abridgment of speech." On this basis, Google has a right to remove or report content to authorities as it chooses: Conservatives decided that free speech protections do not apply to private platforms.
With regards to police enforcement: in Brandenburg v Ohio the Supreme Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Comments advocating for violence and murder ARE NOT PROTECTED FREE SPEECH, per this ruling.
Similarly the ruling of Virginia v Black held that while some forms of hate speech may be protected on their own, that protection ends when the speech is intended to intimidate. To quote: "a state, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate."
TL;DR: Free speech rights do not protect speech on privately owned platforms, and you can still be arrested for that speech alone if it incites violence or acts to intimidate others.
The government already restricts speech. Libel is an obvious example. We therefore need to debate what the concept of free speech actually means and what the practical implications of the 1st Amendment are because they clearly don't mean that speech is completely unrestricted.
OP is suggesting that anyone who comes to that debate with definitions that are more restrictive than OPs should end up in prison. How is that not inherently a restriction on the speech that one can make about free speech?
"Yelling fire in a crowded theater" is a great example because it comes from a horrible Supreme Court ruling defending the arrest of someone handing out anti-war pamphlets.
I can't think of a better example of something that should be protected speech, or a better example of how "reasonable" limits will get abused.
Fortunately, that ruling has been mostly overturned by now.
Incitement to violence isn't necessarily protected speech in the US.
The boundary is of necessity vague. IMNSHO: arguing that free speech should be absolute is almost tantamount to arguing it is irrelevant. Isn't the point that messages matter, and being able to exchange them is powerful? Then clearly that power can be used - and abused. Thus to argue that it is right to never constrain speech implies you either believe it is of no consequence; or believe harm is good (i.e. are malicious or insane); or believe enforcement is impossible or counter-productive.
A dose of rationality in the free speech debate would be appreciated. Heck, it's not like this is the only exception... libel, fraud, and a variety of IP laws all suggest a long history of consistently democratically-backed infringements to free speech. Were our ancestors all crazy?
[1] https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
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