In response to my remark that
jodih comments that
and ptahlis adds
Just for the record, I would like to point out that I did include the words under the libel and slander laws in my original assertion. jodih and ptahlis are quite correct in stating that the truth of the speech is not a defense to every charge; I still contend, however, that if the charge is one of libel, truth will be an absolute defense to that charge.
I understood Gadarene’s OP to mean that the Right of Free Speech is not an absolute concept. I guessed that in the conversation he mentioned, someone was defending a point by saying that it violated this Right.
I get frustrated when people state that something violates a Right, and are not willing to explore the issue further.
I confess that I could not follow all of Gadarene’s, Fish’s, or SingleDad’s arguments. I am not sure what to think.
Gadarene, could you link us to the 1st thread?
“Shouting fire in the theater” was obviously a horrible example, since it wasn’t fundamentally relevant to my argument and it’s what everyone’s chosen to focus on. 
Can anyone make head or tails of my point with regard to Gitlow, or decipher the statements I made in my last post?
I’m not saying that free speech isn’t an absolute right (because that’s obvious), I’m saying it can’t be objectively determined.
2Sense, to which thread did you want me to link?
The thread that you said, "I’m gonna start a “There’s No Such Thing as Free Speech in America” thread.
I wanted some insight on how it got started. Was someone assuming that it was objectivly determined?
Naw, it was just a throw-away comment of my own on the Second Amendment thread. I’d read Fish’s book and was impressed by the argument. And I figured, “Heck, if I can understand this, it should make for an interesting debate!” 'Course, I didn’t realize that it was all academic gobbledy-gook that didn’t mean anything at all. Apparently.
[HIJACK]
Gaudere, you said:
I hate to pick nits, especially with a Mod (yeah, right ), but:
:ahem: From http://www.m-w.com:
So, really we’re both right. While it is true that R. B. Sheridan’s Mrs. Malaprop misused words that sounded like what she meant to say, the term has come to include all misuse of words.
Of course, I’m not certain that the big boys in this thread are guilty of malapropism. I just know that I have no freakin’ idea what they’re talking about.
[/HIJACK]
Look guys, only Humptey Dumptey could solve this thread. Ie a “word means what I say it means” :D. Of course, by all practical & normal uses of the term, there is free speech in America,
. But you can strain the definition all you want, and warp it until it means nothing. It’s like saying there are fewer than 1% Blacks in America. Then defining “black” as persons with absolutely no other “blood”, even to the 20th generation, AND who are actually “black” in skin color. Well, if you strain it that much, sure, but nobody else defines it that way.
No-one of any import feels that having “contracting out for a murder” being a crime, means that we don’t have Free Speach. Or “shouting ‘fire’ in a crowded theatre that is NOT on fire”.
There is nothing to debate here, I’m going home…
Well, since I don’t believe there are any universal truths, I would have to agree that free speech doesn’t have universal content. That doesn’t mean, however, that it doesn’t have an objective standard to apply the definition. The definition is applied by human beings in interpreting and organizing their experience.
Does a particular definition demand a particular objective standard? I don’t think you can make the case for any definition: Dead Parrot Sketch. However we can agree on an objective definition of many if we have good will and choose to do so.
Note to self: Use the preview feature! :o
Jodi said:
How do those laws work? For example, I know a judge found that Clinton could be liable for invasion of one woman’s privacy because he gave out copies of her letters to him after she accused him of sexual harassment. I thought this was a bit odd because, well, she sent him the letters, so I figured they were his to do with as he pleased.
What other examples are there of such “invasion of privacy”?
David B – When it comes to the letters, the physical letter may be the property of the recipient, but the content remains the property of the author, unless that author gives up the right to it. Cecil covered this in an early column:
Oh. I agree with that if you want to be precise. Over the years the general definition of ‘free speech’ that we all use and agree on remains essentially the same. The details change quite a bit depending on the times. (Are there still sedition laws on the books? When was the last time anyone was brought up on those?)
There is no real way to define free speech that removes the subjective element unless you define it absolutely, which we have all agreed is neither the intention nor the reality. At least ‘free speech’ has an objective definition (even though it’s not the one we use.) Try defining ‘obscenity’ objectively, or ‘reasonable’.
Exactly. And since ‘obscenity’ can’t be defined objectively, its definition is left up to the prevailing political mores. By the same token, since “dangerous utterances” cannot be defined objectively, or their consequences reasonably foreseen (see Gitlow), the restrictions which can be constitutionally placed on speech vary with the judgment and ideology of those responsible for legislating. Hence, no static boundaries of “free speech.” Now we’re getting somewhere!
DAVID – “Invasion of privacy” is defined as “wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame, or humiliation to person of ordinary sensibilities.” Ironically, like free speech (which I don’t intend to address), you will see that the standard for “invasion of privacy” is not a purely objective one, depending as it does on how a “person of ordinary sensibilities” would feel under the circumstances. This subjective standard in turn turns on whether a person under the circumstances would have a reasonable expectation of privacy. The classic example for invasion of privacy would be bugging someone’s phone without their knowledge or permission. Doing so invades that individual’s privacy since it trespasses on a activity most people would reasonably expect to be private. In a communication involving two parties – such as a phone call or, generally, a letter – it is not enough for one party to consent to having the communication be public rather than private; the expectation of privacy extends to both people. Therefore, if I send you a letter, or we have a conversation and you tape it, that letter or tape does not become “yours” to desseminate without my permission because by doing so you invade my privacy.
I still see nothing debatable in the OP. The law is full of concepts and rights that are not objectively definable and that are subject to societal interpretation. Even objective laws (such as those defining “murder” in a particular, objective way – ie, the unlawful taking of the life of another) are in turn based upon subjective societal beliefs that killing other people is wrong – a belief not held by the ancient Aztecs, for example, or at least not in the same way it is held today. The classic subjective standard, applicable to free speech as well as to invasion of privacy and a host of other causes of action, is the “reasonable person” standard. What would a reasonable person say/think/do in these circumstances? This is clearly dependent on what a cross-section of society (the jury) or a representative of society (the judge) considers “reasonable.” But so what? Law is bred and applied within the framework of society; little if any of it is truly objective.
It is possible to invade someone’s privacy by disseminating true but private information about them; if you do so (without a good reason, such as that the information is in the public interest) then you may be liable for damages.
How do those laws work? For example, I know a judge found that Clinton could be liable for invasion of one woman’s privacy because he gave out copies of her letters to him after she accused him of sexual harassment. I thought this was a bit odd because, well, she sent him the letters, so I figured they were his to do with as he pleased.
What other examples are there of such “invasion of privacy”?
What I find most interesting is how free speech issues are changing. It’s hard to say which way the wind is blowing. Are we becoming more permissive or more restrictive? TV, movies, and radio (especially!) are loosening up gradually on censorship, yet sex education is still inadequate and faces an uphill battle in the schools. The internet makes speech of all kinds instantly available across the globe, yet religious and governmental organizations are attempting to censor it.
I shudder to think of an internet that becomes little more than a big corporate commercial, or a G-rated playground for all ages, yet when my 9-year old daughter sings the “Discovery Channel” song, (even though she doesn’t know what it’s driving at) I cringe. It’s no wonder that we, as a society, are so conflicted with the concept of free speech. It impacts nearly every aspect of our lives, and in many different ways.
Except that what is “free speech” is “what is never forbidden at any time.” Merely because a government has the power to forbid does not mean it has the right to forbid. Protected speech is protected even in China, or in 16th century England, or in the Roman Empire. The right exists independent of the governing body. The best that a government can do is to recognize the right. If it uses force to disallow the right, it is a government in error. And society as well applies. Most people would rather not hear what the KKK has to say… if we allowed society to decide what is protected speech and what is not, we would be in the same predicament as if we allowed the government to: the existence of a state where we are allowed to say less than we should be.
jayron-
You’re saying that the speech that is protected today was protected in the past, and will be protected in the future? China, 16th century England, the Roman Empire, even the U.S. fifty years ago all have different ideas of what speech is considered protected than we do today. I’ll direct you again to Gitlow–the Court set forth a speech doctrine which let to such wonderfully enlightened things as Communist Party membership being made illegal. To paraphrase you, most people would rather not hear what the Communist Party has to say–and political speech is protected now, but hasn’t been in the past. Similarly, most people would rather not hear what flag burner has to say–and flag burning is protected now, but might not be in the future. And most people would rather not hear racial or sexual epithets at school or in the workplace–so hate speech codes have been enacted which restrict that kind of talk.
In essence, no speech is naturally, universally, or uniformly protected. The right to speak may well exist “independent of the governing body,” but the restrictions on that right are determined by the governing body, and by the society whose attitudes it reflects.
…Not to mention the Sedition Acts of 1798 and 1818.
jayron, can I presume by your silence that we’ve reached agreement here?