Very Disappointed:

[Moondoggie]

The unfettered free speech of Murat in his newspaper led to the unecessary death of thousands during the French Revolution. Many were falsely accused during the reign of terror, and Murat's rantings were a major catylist until he was murdered. Only then did the madness begin to lose headway.

There's an example of libel and slander (under the guise of freedom of the press) run amok during a period when those in power were citing Locke, Rousseau, et al, as their guiding premise. Anarchy and mob rule. "The mob" even fell upon one of the revolution's principal founders, Robespierre, based on libel and slander. He would have almost certainly lost his head had he not committed suicide.

Recently, CBS was caught with it's drawers around it's ankles libeling President Bush with a false story based upon manufactured false documents. What happened to CBS....nada. The folks who lost their jobs got the boot because they got caught. CBS retains its power.

 

[gc70]

Keaner:

The founding fathers of the US were, by definition, all traitors - to England. Lincoln's declaration of martial (not marshal) law, adoption of the PATRIOT Act, Japanese internment, and Arab detention are arguably tryannical and possibly unconstitutional actions, but are certainly not treason.

Zonamo is correct in that you can do whatever you want, but society has determined that you may suffer consequences for what you do. If you consider the consequences of your actions, and don't like the potential consequences, you may not act - which is sometimes a good thing.

Take an extreme example. If someone killed one of my children in my presence, I would probably try to kill that person, in the belief that my act of revenge was worth whatever punishment society might exact against me. On the other hand, I would not kill someone over the way they were dressed, because violently expressing my opinion of someone's clothing would not be worth facing society's punishment for murder.

BTW, freedom of speech is probably protected more today than in the past. On 9/11, an Arab-American in my state had a little celebration over the destruction of the World Trade Center. His coworkers weren't pleased by his comments and suggested he shut up. He went to court and won in a lawsuit against his employer. Rewind that incident to 50 or 100 years ago, and the guy would probably have disappeared - forever.

 

[Zonamo]

What I am saying is: if people are held to a standard about what they say, THEY MIGHT NOT SAY IT!

If what they say would be reasonably determined as having caused unjustified physical harm to another, they shouldn't say it. Whether what they actually say meets that standard should be decided by review in a court of their peers, just like their actions. They are no more restrained in making speech than they are in a case of justifiable homicide simply because they must defend their actions in a court of law after the fact. Defining consequences for speech that causes harm is not prior restraint.

If you base the ruling on "damage", at what point does speaking against a politician cause "damage" to his career?

When the speech was knowing lies and slander. The fact that the individual is a politician is irrelevant. It is the knowing use of speech to cause real harm that is germaine.

 

[griz]

Keaner, your visible gun in a theater example isn't valid. A fire is dangerous and not discriminatory. A better analogy would be going into the theater and firing blanks at the ceiling. And yes the ensuing panic would be the fault of the shooter.

 

[Flyboy]

I'm generally with Keaner on this one, and I think that one rule of responsibility can pretty well take care of the problem. Here it is:

You're responsible for your actions, including their effects.

Pretty simple, really. Libel/slander? On fark.com, probably not a big deal: it's clearly parody, and anybody who'd take it as gospel truth is too dumb to breed. On the front page of the New York Times*? Now we have a bit of a problem. If your libelous speech causes detriment to me or my business, guess who gets to compensate me.

Preacherman, your story of the the woman murdered due to gossip? I guess my only question for the responsible parties would be "Reg'lar or Extra Crispy?"

Then again, taking responsibility for one's own actions is remarkably unpopular; many even say it's "persecution" and "infringing upon their freedom," usually of speech.


* OK, bad example.

 

[Keaner]

Im not trying to say that we should do away with personal responsibility, just that the government shouldnt be the enforcer. All it takes, even in our "free country" is ONE president to abuse his post. So far, we have been lucky to have presidents that think somewhat in the public interest, but what happens when hitler is reborn?

Are you willing to give up your freedoms for a "civil" life? Once there is an exception made to a right, it sets precident, that an exception can be made in the future. You cannot undo that without revolution.

What I am saying is, once we allowed exceptions to be made, we opened a pandoras box. Either we succumb to dictatorship/oppression, or we eventually realize we've been bending over, and have a revolution.

We are lucky, we have never experienced true oppression in our lifetimes, so we are willing to give up our liberty for a thread of security. Our governmental theory is based on the belief that people are GOOD. People are born in a way that is responsible, respectful, and abiding of others rights.

Without that belief, we must succumb to the governmental theory of Thomas Hobbes, and realize that our government will NEVER work.

 

[jefnvk]

I guess I am just too courteous about other people having the right to live peacefully.

 

[Keaner]

No Jetnvk-- you are the way Jefferson envisioned man. Jefferson and Locke both believed that humans were good at heart, and could be trusted with freedom. Without that belief...

 

[ReadyontheRight]

We should all have the right to say what we want, also we should have the responsibility to deal with the consequences.

You can yell "Fire" in a crowded theater, if there is no fire, you did it as a joke, and people are trampled to death, you should be convicted as a murderer.

 

[Watcher53]

Intesting thread.

So, if I am following your thinking Keaner,

Individual rights abound...and consequences for hurtful actions follow.

Who is to enforce the consequences?

If they are not directly involved, how do they ascertain what/if any hurtful action occurred?

 

[Preacherman]

Keaner, I've already said my piece about the reality of today's world, so I won't repeat it. However, your approach begs another question.

If everything is to be left to the hearer to judge, what standards are to be applied? If anybody can determine their own standards by which to judge what's being said, we're neck-deep in the proverbial brown substance. As an example, look at those who are pro- or anti- President Bush. One side will hear anything he says, and approve of it as being statesmanlike and righteous. The other side parrots "Bush lied!!!" as if it were a religious mantra. Neither side is applying objectivity or universal standards to their approach.

The same applies to anybody hearing anything anyone says. We have to have an agreed standard if we are to judge equitably: and there is no such standard. Pilate's comment to Jesus, "What is truth?", is very relevant today. I have my own rule of life, my own weltanschaung, if you will, on the basis of which I make judgements about what I hear. However, my foundation differs (sometimes radically) from what others use as their foundation, and I can't expect them to make the same value judgements that I do. I'm not a big fan of President Bush, but I happen to think he's the best of the alternatives offered to us in our recent election, and therefore supported him. If you offered Ted Kennedy as an alternative, my opinion would be blasphemous, unprintable, and probably unrepeatable in polite society! However, there are many out there who would take the opposite view to myself. They are entitled to their opinion, just as I'm entitled to mine: but what is the "objective standard" to which each of us is to be held in propagating our opinions?

It all comes back to real life, and real life is neither objective nor fair. That's the way it is: and for that reason, we need to restrict totally free speech by means of legal standards to which all will be held accountable. These standards do NOT restrict what you may say: they merely state that if what you say transgresses certain standards (defined as objectively as possible), you will be held accountable for those transgressions, and may suffer punishment for them. It's the same as self-defence laws. These define the circumstances under which you may lawfully exercise potentially lethal force in defence of yourself and/or those in your care. You know, up front, what these circumstances are. If you use lethal force outside that set of circumstances, you know - also up front - that you will be held accountable for your actions, and may be punished. I don't see a problem here (except in defining the standards, and that's what politics is all about!).

 

[Keaner]

Preacherman-- thank you for that post, it made me reconsider my position slightly on the topic. So, here goes:


Speech is free, and must be used responsibly for the good of culture. But, The government holds NO RIGHT to limit the BOR in ANY WAY. OTOH, Responsibility for actions should be hashed out in civil court, a system developed for the people, by the people. IE: You can say whatever you want, and have NO worries that you will spend time in jail, (I Still dont like the whole "fire" thing), but you can be held responsible for damages in a Civil court.

The thing about the "FIRE" statement, is that something like that is to be considered before action. If you were to yell fire, someone would be responsible to verify the "fire". I have a tough time finding a reasonable example, as it is easy to see too big of a difference, but in the case of the movie theater, I would think the Trampler would be responsible for homicide, not the yeller for saying fire.

This is my justification on that: What if the person yelling fire actually sees a fire, yet people get trampled on the way out? Does the person still get charged with murder, because him yelling fire still caused death?

 

[Moondoggie]

Keaner, don't mean to rain on your parade, but you ought to spend some time researching Jefferson a little beyond the "Founding Father" persona. I read a lot of old books about Jefferson while doing a research paper in college...many years ago. An eye-opening experience.

He had many flaws, and was not universally (by a long shot) loved by his peers/contemporaries.

He barely got elected President in the House of Representatives after many tie votes and much behind the scenes political wrangling.

He was roundly critized for the Louisiana Purchase, and the way that the money was (mis)appropriated. He attempted to block the promotion of Andrew Jackson to general based upon political/personal differences.

He was most definately an elitist...his concept of the "common man" was limited to the landed gentry. His answer to abolition of slavery was either ship them back to Africa, or exile former slaves to the western frontiers (Ohio/Kentucky) where they would live in segregated communities under white leadership. This is from his own writings.

I won't go into great detail about his ownership of slaves, or his long standing illicit relationship with Sally Hemmings; one of his slaves who was 14 and about a third his age when it started. Jefferson was involved in crafting the 3/5 compromise portion of the Constitution that facilitated the southern states entry into the Union. Remember that he was a slave owner from Virginia. IMO, the 3/5 compromise was what led to the civil war...slavery needed to be abolished to remedy the lopsided political power of the slave states.

He studied the philosophy of the enlightenment, and wrote a great deal without really adding anything of substance. He pontificated eloquently, but never really translated much of it into personal example. His greatest contribution, IMHO, was his stellar ability to meld politics and philosophy as a tool of influence and his uncanny skill at political manuvering.

He may be revered as a "great man", but he was no saint. This does not detract from his importance among the founders. I think it's important to look at the whole story, warts and all, if you're going to hold him up as an ideal.

 

[gc70]

(rant mode = ON)
Keaner, you've convinced me. You should be allowed to yell FIRE in a crowded theater just for the chuckles of seeing how the members of the crowd would trample each other trying to get out. And if anyone got hurt during the panic... well, your shoes didn't trample them. Yep, perverting the public service of warning others of impending disaster ought to be good for a belly laugh or two.
(rant mode = OFF)

BTW, you do not need to verify that there is a fire when someone yells FIRE in a crowded theater - it is commonly expected that nobody would yell FIRE unless there really was a fire or, to put it another way, the person yelling FIRE is warranting that they have verified that there is a fire.

 

[Keaner]

Moondoggle: I did realize almost all of what you said about Jefferson, but he DID add a few things to governmental theory. Im not claiming anything about his character, just that he had a good idea about how a government should work.

(rant mode = ON)
Keaner, you've convinced me. You should be allowed to yell FIRE in a crowded theater just for the chuckles of seeing how the members of the crowd would trample each other trying to get out. And if anyone got hurt during the panic... well, your shoes didn't trample them. Yep, perverting the public service of warning others of impending disaster ought to be good for a belly laugh or two.
(rant mode = OFF)

BTW, you do not need to verify that there is a fire when someone yells FIRE in a crowded theater - it is commonly expected that nobody would yell FIRE unless there really was a fire or, to put it another way, the person yelling FIRE is warranting that they have verified that there is a fire.

Unfortunately GC: That thinking is what caused the problem we have now. Especially that "it is commonly expected that nobody..." Thats the same as saying that there is no reason to verify what ANYBODY says, because "it is commonly expected that nobody would say anything unless it really was true or, to put it another way, the person saying X is warranting that they have verified that what they say is truthful."

That is a very Nieve way of thought. It is being irrisponsible as a citizen to assume that what you hear is true. By that same argument (because there can NEVER be special cases& exceptions, or freedom is lost) you would have the Agent who originally determined there were WMDs in iraq convicted of thousands of murders?

Or even further, anyone who ever said anythign that led to loss of life? There is a massive responsiblity on a listener to make sure what they hear passes the sniff test. Otherwise, what happens if we started believing everything that was told to us?

 

[gc70]

(because there can NEVER be special cases& exceptions, or freedom is lost)

Keaner, if, in your absolutism, you believe that everything must fall into a black/white, yes/no, 0/1, binary dichotomy - or as you put it, freedom is lost is there are ever any exceptions or special cases - the messy, imprecise world in which we live must be terribly frustrating.

(th-th-th-that's all folks - end of thread participation)

 

[Keaner]

The problem in this case is that if we accept a middle road, if we compromise with our rights, it will be recompromised over and over and over! Take a look at gun control! Wasnt the 1934(eh?) bill a compromise? Followed by the even more limiting legislation after another.

We cannot give any ground with our rights, or they will be taken away over and over. It is our responsibility as citizens to protect our rights above our own lives. As they say, give a man an inch, hell take a mile, give a government one point, it'll take all your rights, one by one.

 

[Justin]

"Fire"

The bit about yelling "Fire!" in a theater refers to Justice Oliver Wendell Holms' Clear & Present Danger Standard

This was in the Supreme Court Decision in Schenk v. United States which was later overturned by Brandenburg v. Ohio

 

[Zonamo]

The bit about yelling "Fire!" in a theater refers to Justice Oliver Wendell Holms' Clear & Present Danger Standard

Interesting and informative links. There is nothing in there though that would indicate that yelling fire in a crowded theater does not equally meet the "imminent lawless action" test just as it did Holmes' original "clear and present danger" formulation:

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Unless you don't consider a panicking mob fighting to get out of a theater because someone yelled fire "lawless."

 

[Old Dog]

It seems to me that Jefferson, at one point, did have some further thoughts on the 1st Amendment ... and I think some study would indicate that Jefferson believed the 1st Amendment was primarily intended to insure freedom of religion and freedom of the press, not to provide legal protection for the unwise individual who indulged in public lies, statements that impacted public safety or public profanity.

"The Constitutions of our several States vary more or less in some particulars. But there are certain principles in which all agree, and which all cherish as vitally essential to the protection of the life, liberty, property, and safety of the citizen: 1. Freedom of religion, restricted only from acts of trespass on that of others; 2. Freedom of person, securing every one from imprisonment or other bodily restraint but by the laws of the land. This is effected by the well-know law of habeas corpus; 3. Trial by jury, the best of all safeguards for the person, the property, and the fame of every individual; 4. The exclusive right of legislation and taxation in the representatives of the people; 5. Freedom of the press, subject only to liability for personal injuries." --Thomas Jefferson to A. Coray, 1823. ME 15:489
"I like [the declaration of rights] as far as it goes, but I should have been for going further. For instance, the following alterations and additions would have pleased me:
Article 4. The people shall not be deprived or abridged of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty, property or reputation of others or affecting the peace of the confederacy with foreign nations.

Note his proposed Article 4. Clearly, he wants to clarify that protected written, spoken and published speech is not that speech that is libelous, slanderous, untrue or otherwise is "affecting injuriously the life, liberty, property or reputation of others ..."

The problem in this case is that if we accept a middle road, if we compromise with our rights, it will be recompromised over and over and over!

Compromise is often necessary to the survival of our species. At some point, one has to consider the greatest good for the greatest number. Without compromise, there are no relationships (ever been married or had a serious relationship?), there are no treaties, and there is no peace. In a perfect world, we'd all be able to live up to all our principles all of the time, and there would be no conflict ... But since our principles may differ, compromise is the reality of life. If you would rather die defending your absolutist construction of the 1st Amendment rather than live with local ordinances prohibiting public profanity, libel, slander or dangerous public proclamations which are not political in nature ... if I am a true Jeffersonian, I cannot disagree with you, since the man did once say:

"I tolerate with the utmost latitude the right of others to differ from me in opinion without imputing to them criminality." --Thomas Jefferson to Abigail Adams, 1804. ME 11:52

 

[Keaner]

Those were some interesting links, Ive been reading them over:

That being said, I respect the need to compromise on most things, but our rights are not one of them. The 2nd amendment is a joke now because of our willingness to compromise.

As for the points about Jefferson, perhaps I am slightly more idealistic, but ANY time someone speaks, and has to think about the repricussions, something that could have been important is not being said. I would rather have 100,000 completely false statements spoken in order to have one person feel comfortable speaking their mind on a seemingly unimportant topic.

The point is to encourage people to speak out.

 

[Keaner]

Sorry to reply to myself: but in Schenck v. US: The opinion was WAY off. There is no way someone should not be allowed to air greivences, NO MATTER WHAT. If the government is able to declare special circumstances at a spacific time, then people lose their right completely.

That being said: The Supreme Court, Congress, and the Executive branch have NO RIGHT to limit the BOR. The Bill of Rights was an acknowledgement of the "god given" rights of man, not a set to create rights. Therefore, the rights mentioned in the BOR come from a higher power, that the USSC, USC, and POTUS have ZERO ability to abridge.

The Brandenburg case really agrivates me as well. Even though it is a step in the right direction, it still limits speech. Esp. the part about "inciting crime". Well, what if a law is wrong? What if MLK and Rosa Parks had never spoken about sit-ins, bus-riding, etc? When the law is wrong, the people have a right to change it, or overthrow the government for resisting. It is our natural right as humans.

 

[griz]

What makes you think that protecting the right to lie will make someone more willing to speak up about important matters? I know from experience that I am less likely to contribute to a conversation if I know someone is lying.

 

[Keaner]

Griz: if lying becomes punishable, it stops people from being able to say something that isnt fully justifyable. IF we say its a sliding scale, ie, judging shades of gray (it has to be at least 75% true to be legal), than people saying things that they cannot prove completely wont be said.

Lets put it this way: have you ever been in an argument where you will state a (somewhat) opinion, and have everyone tell you that you are lying *cough*every reasonable point made on DU *cough*? What if because of that you could be prosocuted?

THEN you wouldnt say something that others would need to hear. Why do you not speak your opinions on DU? Because you know people will deride, and degrade you for saying something. Now, make that same statement possibly illegal, and it will NEVER be said.

If I have to think about what I am about the consiquences of my speech, it will limit what I say, which hurts EVERYONE. Most likely, I would stream retarded scum, but what if, just one second of what I said needed to be said? Would you accept missing a reasonable grievence to silence me forever? I wouldnt. I would rather you go Michael Moore on me, and stream useless retardation for 1hr :42 minutes, if at the 1hr: 43 minute point, you mentioned an important qualm about the government.

As for the "Fire" thing, are people now responsible to make 100% sure that there was a fire before yelling? What if someone, in a dark theater, saw somethign that they mistakened for fire, and people died? Punishing someone for what could possibly have been a good faith effort will just keep people from ever making good faith efforts ever again.


EDIT: I saw the SAME thing when I moved to boston for college in september. I, being a small town kid, felt that I should help someone in distress, while people from the area would walk right by and say, "its not my problem. What happens if you are wrong, you would get in trouble for mentioning it!" Sometimes, its worth accepting the bad faith efforts so that a good faith effort will happen.

 

[griz]

Are you saying you are worried it will drift that far because of comprimise? If so I guess I just don't give the possibility much of a chance.

And no, I would not want to wade through 1:42 hours of lies to get to a minute of truth. How would I know when to believe? If I have to check it all out I would start from scratch. As an example, if I thought you were making half of this up I wouldn't have even replied or continued reading this thread.