6 ms·

I’m too tired at the moment to figure out where I stand on this [issue of free speech / assembly] but I have a general question: I thought the Supreme Court has

by gdubs 7y ago

I’m too tired at the moment to figure out where I stand on this [issue of free speech / assembly] but I have a general question: I thought the Supreme Court has already shown that there are limits to speech, such as yelling “Fire” in a crowded theater. I guess the distinction is how directly the speech leads to harm. Would that apply in this situation where most medical experts would agree that the quarantine is necessary for saving lives? Or is the thinking that this is too far removed — like telling people they can’t protest seat-belts. Edit: I’ll clarify by saying that (my personal opinion) is that the protests are at best ... misguided. My question is about precedent on free speech / assembly under circumstances where harm might occur or it violates something like a quarantine or shelter-in-place order. The Atlantic article linked below is fascinating because I definitely have always thought of the “fire in a crowded theater example.”

leetcrew 7y ago
the "yelling fire in a crowded theater" quote is not a particularly good example to bring up for this topic. see this article [0] for a longer discussion, but tl;dr: it's from an ancillary opinion (ie, not part of the actual ruling) from a case that was overturned many years ago. [0] https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/ https://www.theatlantic.com/national/archive/2012/11/its-tim...
tomcam 7y ago
Not a constitutional issue because FB, Google, etc. are private companies and can tweak the search results however they see fit.
- wyager 7y ago
  While I don't endorse this state of affairs, the federal government has been putting constraints and obligations on private (especially commercial) speech for decades.
  - CryptoPunk 7y ago
    Only commercial speech. Private non-commercial speech has been pretty broadly protected by the First Amendment.
    - wyager 7y ago
      Commercial speech (I.e. Facebook’s censorship of material on its advertising platform) is obviously what’s in question here.
      - CryptoPunk 7y ago
        Facebook's censorship has nothing to do with First Amendment rights, as it's a private platform.
cpwright 7y ago
"Would that apply in this situation where most medical experts would agree that the quarantine is necessary for saving lives? Or is the thinking that this is too far removed — like telling people they can’t protest seat-belts." Medical experts and scientists can provide data that helps inform people. Just because medical experts say something will "save lives" does not mean we should blindly follow that as policy. There is unfortunately a dearth of data that would allow us to make well-informed policy choices.
- jfim 7y ago
  > Medical experts and scientists can provide data that helps inform people. There are tons of data available. Even at a layman level, it should be pretty obvious that doing no or late lockdown ends up in situations where there are large numbers of deaths.
  - nopriorarrests 7y ago
    >it should be pretty obvious that doing no or late lockdown ends up in situations where there are large numbers of deaths. Even this is debatable. I have no skin in this game and no strong opinion, but let's be honest -- lots of people were expecting total disaster in Sweden since they decided not to implement lockdown, but so far their daily cases chart looks not that different from other nordic countries.
    - kyawzazaw 7y ago
      > I have no skin in this game and no strong opinion, but let's be honest -- lots of people were expecting total disaster in Sweden since they decided not to implement lockdown, but so far their daily cases chart looks not that different from other nordic countries. That's because many people in Sweden live alone.
      - FpUser 7y ago
        "That's because many people in Sweden live alone." - got a link to a credible study confirming this? It sounds rather like a fantasy to me.
nopriorarrests 7y ago
>situation where most medical experts would agree that the quarantine is necessary for saving lives The same experts (like WHO) told everyone 3 month ago that masks don't work, that no clear evidence of human-to-human transmission was found, etc. If they made such obvious mistakes and we still have to obey their orders now, what's the point of having government at all? Let's just accept the rule by the experts and get rid of elections and stuff.
- ethbro 7y ago
  > If they made such obvious mistakes and we still have to obey their orders now, what's the point of having government at all? That a human made an error doesn't mean the public is smarter than them.
  - noworriesnate 7y ago
    It’s not really a question of intelligence. It’s a question of is the WHO interested in health or politics. Parroting China’s “findings” was good politics. It wasn’t good for world health.
  - mrcsharp 7y ago
    It was not just "a human". It was an entire organization that is supposedly ran by experts. So there is nothing malicious with the same public that funds the WHO to now start questioning them and their recommendations.
nostromo 7y ago
You're free to yell fire in a theater if you believe there is a fire. By analogy, if you thought Covid-19 danger's were overblown, you are free to say so.
- alyx 7y ago
  If you yell “bomb” on a plane, your milage may vary.
xkcd-sucks 7y ago
The "fire in a crowded theater" quote is often cited very disingenuously https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ https://www.popehat.com/2012/09/19/three-generations-of-a-ha...
- jakeogh 7y ago
  Hitchens - Free Speech (2006): https://youtu.be/olefVguutfo https://youtu.be/olefVguutfo
dahart 7y ago
> I thought the Supreme Court has already shown that there are limits to speech Yes correct, freedom of speech is not absolute, there are a lot of limitations in the U.S.: “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.” https://en.wikipedia.org/wiki/Freedom_of_speech#Limitations https://en.wikipedia.org/wiki/Freedom_of_speech#Limitations The problem in this case is it can be reasonably argued that quarantine is damaging to some people, and not quarantining is damaging to other people. Even if it really is a bad idea to protest, it might be really difficult to establish clearly and legally that protesting is causing unnecessary harm, and greater harm than not protesting. I’ve read the Wikipedia page on Freedom of Speech before, but I just noticed for the first time the interesting criteria called “Imminent lawless action”. I’m not a lawyer, but it seems possible this could apply even if harm can’t be demonstrated. “Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely.” https://en.wikipedia.org/wiki/Imminent_lawless_action https://en.wikipedia.org/wiki/Imminent_lawless_action
- hartator 7y ago
  > 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.” Half of this doesn’t apply to the US. In the same Wikipedia article: > The opinion in Brandenburg discarded the previous test of "clear and present danger" and made the right to freedom of (political) speech's protections in the United States almost absolute.
  - dahart 7y ago
    > Brandenburg [...] made the right to freedom of (political) speech's protections in the United States almost absolute. Ah, yeah that is a good point, since these protests are political speech. Does it matter that the protests are assembling? I could imagine the protected ability to say anything you want about politics, while reserving some rights about the ability to do anything. Personally, I don’t think it should be illegal to protest this. It doesn’t seem like a particularly bright idea though. This situation doesn’t have a lot of legal precedent, and it might cause some to occur right now. But since communicable disease is a threat to life, liberty and the pursuit of happiness, and the law and constitution weren’t exactly written with global pandemic in mind, do you think the ability to assemble should be absolute? > Half of this doesn’t apply to the US. Here’s the US specific list... it’s still long https://en.wikipedia.org/wiki/United_States_free_speech_exceptions https://en.wikipedia.org/wiki/United_States_free_speech_exce... * Actually, would you mind listing the specific exceptions above that you believe do not apply to the US? I could be wrong, but I scrubbed through all of them and can’t find a single one that doesn’t seem to apply at least partially. In the US, fighting words, obscenity and pornography are there explicitly; false statements of fact covers things like libel, slander, dignity and perjury; the imminent lawless action exception covers sedition and incitement; commercial speech and speech owned by others covers classified information, copyright violation, trade secrets, food labeling, and non-disclosure agreements; right to privacy is implicitly granted by several amendments in the constitution, and the right to be forgotten has legal precedent. I think that’s all of them. What did I miss?

by gdubs 7y ago

leetcrew 7y ago

the "yelling fire in a crowded theater" quote is not a particularly good example to bring up for this topic. see this article [0] for a longer discussion, but tl;dr: it's from an ancillary opinion (ie, not part of the actual ruling) from a case that was overturned many years ago. [0] https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/ https://www.theatlantic.com/national/archive/2012/11/its-tim...

tomcam 7y ago

Not a constitutional issue because FB, Google, etc. are private companies and can tweak the search results however they see fit.

wyager 7y ago
While I don't endorse this state of affairs, the federal government has been putting constraints and obligations on private (especially commercial) speech for decades.
- CryptoPunk 7y ago
  Only commercial speech. Private non-commercial speech has been pretty broadly protected by the First Amendment.
  - wyager 7y ago
    Commercial speech (I.e. Facebook’s censorship of material on its advertising platform) is obviously what’s in question here.
    - CryptoPunk 7y ago
      Facebook's censorship has nothing to do with First Amendment rights, as it's a private platform.

cpwright 7y ago

"Would that apply in this situation where most medical experts would agree that the quarantine is necessary for saving lives? Or is the thinking that this is too far removed — like telling people they can’t protest seat-belts." Medical experts and scientists can provide data that helps inform people. Just because medical experts say something will "save lives" does not mean we should blindly follow that as policy. There is unfortunately a dearth of data that would allow us to make well-informed policy choices.

jfim 7y ago
> Medical experts and scientists can provide data that helps inform people. There are tons of data available. Even at a layman level, it should be pretty obvious that doing no or late lockdown ends up in situations where there are large numbers of deaths.
- nopriorarrests 7y ago
  >it should be pretty obvious that doing no or late lockdown ends up in situations where there are large numbers of deaths. Even this is debatable. I have no skin in this game and no strong opinion, but let's be honest -- lots of people were expecting total disaster in Sweden since they decided not to implement lockdown, but so far their daily cases chart looks not that different from other nordic countries.
  - kyawzazaw 7y ago
    > I have no skin in this game and no strong opinion, but let's be honest -- lots of people were expecting total disaster in Sweden since they decided not to implement lockdown, but so far their daily cases chart looks not that different from other nordic countries. That's because many people in Sweden live alone.
    - FpUser 7y ago
      "That's because many people in Sweden live alone." - got a link to a credible study confirming this? It sounds rather like a fantasy to me.

nopriorarrests 7y ago

>situation where most medical experts would agree that the quarantine is necessary for saving lives The same experts (like WHO) told everyone 3 month ago that masks don't work, that no clear evidence of human-to-human transmission was found, etc. If they made such obvious mistakes and we still have to obey their orders now, what's the point of having government at all? Let's just accept the rule by the experts and get rid of elections and stuff.

ethbro 7y ago
> If they made such obvious mistakes and we still have to obey their orders now, what's the point of having government at all? That a human made an error doesn't mean the public is smarter than them.
- noworriesnate 7y ago
  It’s not really a question of intelligence. It’s a question of is the WHO interested in health or politics. Parroting China’s “findings” was good politics. It wasn’t good for world health.
- mrcsharp 7y ago
  It was not just "a human". It was an entire organization that is supposedly ran by experts. So there is nothing malicious with the same public that funds the WHO to now start questioning them and their recommendations.

nostromo 7y ago

You're free to yell fire in a theater if you believe there is a fire. By analogy, if you thought Covid-19 danger's were overblown, you are free to say so.

alyx 7y ago
If you yell “bomb” on a plane, your milage may vary.

xkcd-sucks 7y ago

The "fire in a crowded theater" quote is often cited very disingenuously https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ https://www.popehat.com/2012/09/19/three-generations-of-a-ha...

jakeogh 7y ago
Hitchens - Free Speech (2006): https://youtu.be/olefVguutfo https://youtu.be/olefVguutfo

dahart 7y ago

> I thought the Supreme Court has already shown that there are limits to speech Yes correct, freedom of speech is not absolute, there are a lot of limitations in the U.S.: “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.” https://en.wikipedia.org/wiki/Freedom_of_speech#Limitations https://en.wikipedia.org/wiki/Freedom_of_speech#Limitations The problem in this case is it can be reasonably argued that quarantine is damaging to some people, and not quarantining is damaging to other people. Even if it really is a bad idea to protest, it might be really difficult to establish clearly and legally that protesting is causing unnecessary harm, and greater harm than not protesting. I’ve read the Wikipedia page on Freedom of Speech before, but I just noticed for the first time the interesting criteria called “Imminent lawless action”. I’m not a lawyer, but it seems possible this could apply even if harm can’t be demonstrated. “Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely.” https://en.wikipedia.org/wiki/Imminent_lawless_action https://en.wikipedia.org/wiki/Imminent_lawless_action

hartator 7y ago
> 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.” Half of this doesn’t apply to the US. In the same Wikipedia article: > The opinion in Brandenburg discarded the previous test of "clear and present danger" and made the right to freedom of (political) speech's protections in the United States almost absolute.
- dahart 7y ago
  > Brandenburg [...] made the right to freedom of (political) speech's protections in the United States almost absolute. Ah, yeah that is a good point, since these protests are political speech. Does it matter that the protests are assembling? I could imagine the protected ability to say anything you want about politics, while reserving some rights about the ability to do anything. Personally, I don’t think it should be illegal to protest this. It doesn’t seem like a particularly bright idea though. This situation doesn’t have a lot of legal precedent, and it might cause some to occur right now. But since communicable disease is a threat to life, liberty and the pursuit of happiness, and the law and constitution weren’t exactly written with global pandemic in mind, do you think the ability to assemble should be absolute? > Half of this doesn’t apply to the US. Here’s the US specific list... it’s still long https://en.wikipedia.org/wiki/United_States_free_speech_exceptions https://en.wikipedia.org/wiki/United_States_free_speech_exce... * Actually, would you mind listing the specific exceptions above that you believe do not apply to the US? I could be wrong, but I scrubbed through all of them and can’t find a single one that doesn’t seem to apply at least partially. In the US, fighting words, obscenity and pornography are there explicitly; false statements of fact covers things like libel, slander, dignity and perjury; the imminent lawless action exception covers sedition and incitement; commercial speech and speech owned by others covers classified information, copyright violation, trade secrets, food labeling, and non-disclosure agreements; right to privacy is implicitly granted by several amendments in the constitution, and the right to be forgotten has legal precedent. I think that’s all of them. What did I miss?