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So, two things: 1. Your assertion has empirical counter-examples. My favorite example is Tinker. The dissent in that case already foreshadows exactly your conc

So, two things: 1. Your assertion has empirical counter-examples. My favorite example is Tinker. The dissent in that case already foreshadows exactly your concern, that the "substantial disruption" test was quite arbitrary. But, in fact, lower courts were by-and-large extraordinarily friendly toward student speech when applying the Tinker test. So much so that SCOTUS has had to limit the scope of Tinker at least a few times in the intervening years (e.g., Hazelwood and Morse). It's not perfect, but no reasonable person looking at the historical record can say that the "substantial disruption" exception to free speech was used to ban "absolutely anything". And "substantial disruption" is probably the most mild form of harm. 2. Remember that TulliusCicero isn't arguing against free speech. They're only pointing out that DanielBMarkham's particular defense of free speech isn't compelling. I think that's fair. DanielBMarkham's approach toward defending free speech, which has at its roots in some enlightenment-era ideas about what man is, really doesn't provide us with a good conceptual framework for addressing TulliusCicero's critique. So, although I'm pro-free speech, but I don't think the argument that either you or DanielBMarkham put forward are particularly compelling. If you want to defend free speech, you have to honestly deal with the valid concern that speech really can harm. Insisting that man is a rational animal, or even that the search for truth will always lead to good outcomes, is... just not historically compelling.

DanielBMarkham 6y ago
You're certainly not using SCOTUS arguments for Enlightenment ideals. I sure hope not. My argument was mean in the generic and at an abstract level. I understand that for some people this is not compelling. Conversely, if were to dive down into specifics, we would need a somewhat lengthy conversation about where the guardrails were and where the (hopefully unmovable) goalposts were. Of course at some level of analysis free speech can cause harm, otherwise there would be no point in defending it. My admittedly-oversimplified point, which I have yet to see refuted, is that in the main, we really suck at predicting the difference between harm and progress. Many times it takes decades or centuries to sort it out. From there we can end up with the law being an ass[1] or some finer definition of legitimate public policy choices. But unless we can all admit that we suck at determining who should speak or not, we really don't have a basis to continue the conversation, legally or philosophically.[2] It's fine to say "Let's start here, and given the current tech, governmental structures, and laws we live under, where do we go?" It's also fine to say "What is the purpose of letting people say things that can hurt others, anyway?" Pick one. I chose the second one. If you'd like to talk about the first one, that's a completely different conversation. However if you don't grok the conversation on root principles, it's unlikely any sort of more complex or nuanced conversation is going to lead you anywhere useful. That has to be where we all start. Also, insisting man is a rational animal is yet another can of worms which I didn't open up. I don't think man is a rational animal at all, and that doesn't change my opinion or where I think the conversation has to begin. [1] https://www.phrases.org.uk/meanings/the-law-is-an-ass.html https://www.phrases.org.uk/meanings/the-law-is-an-ass.html [2] When I say that we suck at determining who should speak or not, I mean in a moral, ethical, and public policy sense. I do not mean in a legal sense. Obviously there's a ton of case law around most all of our amendments. I'm surveying a landscape, not preparing a legal brief.
- throwawaygh 6y ago
  > You're certainly not using SCOTUS arguments for Enlightenment ideals. I sure hope not. Sorry, I'm not sure what that means. The Tinker example was just a demonstration that, empirically, adding "harm reduction" exceptions to free speech doesn't always result in arbitrary restrictions on speech. Not for any profound ultimate reason, but just because that's just not how the herd dynamics of on particular judiciary worked. > But unless we can all admit that we suck at determining who should speak or not, we really don't have a basis to continue the conversation, legally or philosophically. Okay. But that's a bit of a strawman. I don't see anyone here arguing that perfect censorship is possible. NB: most people in this thread aren't even arguing against free speech. We just don't think you're providing a compelling justification for free speech. Which is different from disagreeing with your conclusion. But the difference isn't pedantic; it has important down-stream effects and implications. > insisting man is a rational animal is yet another can of worms which I didn't open up... I don't think man is a rational animal at all, and that doesn't change my opinion or where I think the conversation has to begin. Well, I think my entire point was that you do open that can of worms and perhaps don't even realize it. Perhaps you misunderstand what I mean by "rational" here. I don't mean "perfectly rational" or "good at reasoning" or "not susceptible to emotion/propaganda" or anything like that. I mean it in a much more basic "what is that thing that is happening when we think and speak, regardless of any consideration of truth or correctness or progress or any of that" sense. To keep things concise and specific, the following sentences exemplify the thing I find philosophically suspect in the way you think about free speech: - "a lot of those times we got so upset about people saying various things, we were wrong. Those people changed all of us for the better." - "we really suck at predicting the difference between harm and progress." - "Unless we continue to humbly think we could continue to be wrong, we stop evolving." I disagree that these propositions are even particularly meaningful. To be clear and to avoid a tangent, it's not that I disagree because I think the opposite. I.e., I disagree equally and in the exact same way with the statement "we are good at predicting the difference between harm and progress". My disagreement is at a fundamental and philosophical level. In the sense that I think there's a bunch of incorrect stuff we have to assume about the role that rationality plays in human thought and human language (and, therefore, human politics) in order for a discussion about any of these propositions to even make sense. Perhaps this will help get the point across: when I say "you think man is a rational animal", what I really mean is that you have a very specific type of answer you're going to give to the question: "what is the reason that it doesn't occur to us to use any of the quotes I listed above to talk about deer or bears or whales?" And your answer to that question is simply not the answer I would give. (NB, to avoid a tangent, it's the reason those sentences have meaning for humans and not other animals -- not whether they have meaning for one and not the other -- that is the thing that I think we disagree on at some sort of fundamental philosophical level.) You see enlightened subjects coming to belief (perhaps false or perhaps true) through the use of cognition (perhaps logical or perhaps emotional; perhaps sound logic or perhaps bad logic; perhaps positive emotion or perhaps negative emotion). I see a herd of animals acted upon by emergent social phenomenon over which no one of the herd has particularly much control. When I think about the reason for free speech, I think about herd dynamics and the importance (or not) of entropy. When you think about the reason for free speech, you think about individuals reasoning and the limits (or not) of rationality. Of course both of us see shades of each, I'm just much more to one side of that continuum and you're much more to the other side.
AnimalMuppet 6y ago
> Insisting that man is a rational animal, or even that the search for truth will always lead to good outcomes, is... just not historically compelling. That's fair. But insisting that preventing speech will always lead to good outcomes is also not historically compelling. The problem then becomes, which speech to block. Well, speech that causes harm. That's great, in theory. But do you have an objective measure? A measure that's universally agreed-upon? And if not, who decides? And now you're back to DanielBMarkham's argument. What if the people who decide are the equivalent of the pre-Civil-War South? (They would have classified abolitionist speech as causing harm - I mean, look at the war it caused!) Or of the 1950s with respect to gay rights? Or just hard-core Republicans or Democrats? I'm sure the Chinese Communist Party could also come up with some definitions of "causing harm" that are, um, not ones that I would agree with. I am unwilling to trust very many people with that power...
- throwawaygh 6y ago
  > But insisting that preventing speech will always lead to good outcomes is also not historically compelling yes, agreed. (Also, I really meant it when I said "I'm pro-free speech".) > And now you're back to DanielBMarkham's argument I don't think so. His argument still seems somehow fundamentally wrong. These notions of good and evil, of true and false, etc., all seem to somehow miss the point for me. I guess here's a good specific way of making this point: I would support free speech even if the censor were perfectly good and omniscient and all-powerful and maximally ethical and perfectly charismatic. Perhaps especially if. How would DanielBMarkham's justification for free speech ever get you to that point? I don't think it does. Also, getting the justification right somehow doesn't seem academic to me at all. It seems quite fundamental. Why? because any supporter of censorship does believe that their censor is, if not perfect, at least better and truer and more charismatic. And perhaps they don't want the censor to be all powerful, but certainly do what the censor to be more powerful.

DanielBMarkham 6y ago

You're certainly not using SCOTUS arguments for Enlightenment ideals. I sure hope not. My argument was mean in the generic and at an abstract level. I understand that for some people this is not compelling. Conversely, if were to dive down into specifics, we would need a somewhat lengthy conversation about where the guardrails were and where the (hopefully unmovable) goalposts were. Of course at some level of analysis free speech can cause harm, otherwise there would be no point in defending it. My admittedly-oversimplified point, which I have yet to see refuted, is that in the main, we really suck at predicting the difference between harm and progress. Many times it takes decades or centuries to sort it out. From there we can end up with the law being an ass[1] or some finer definition of legitimate public policy choices. But unless we can all admit that we suck at determining who should speak or not, we really don't have a basis to continue the conversation, legally or philosophically.[2] It's fine to say "Let's start here, and given the current tech, governmental structures, and laws we live under, where do we go?" It's also fine to say "What is the purpose of letting people say things that can hurt others, anyway?" Pick one. I chose the second one. If you'd like to talk about the first one, that's a completely different conversation. However if you don't grok the conversation on root principles, it's unlikely any sort of more complex or nuanced conversation is going to lead you anywhere useful. That has to be where we all start. Also, insisting man is a rational animal is yet another can of worms which I didn't open up. I don't think man is a rational animal at all, and that doesn't change my opinion or where I think the conversation has to begin. [1] https://www.phrases.org.uk/meanings/the-law-is-an-ass.html https://www.phrases.org.uk/meanings/the-law-is-an-ass.html [2] When I say that we suck at determining who should speak or not, I mean in a moral, ethical, and public policy sense. I do not mean in a legal sense. Obviously there's a ton of case law around most all of our amendments. I'm surveying a landscape, not preparing a legal brief.

throwawaygh 6y ago
> You're certainly not using SCOTUS arguments for Enlightenment ideals. I sure hope not. Sorry, I'm not sure what that means. The Tinker example was just a demonstration that, empirically, adding "harm reduction" exceptions to free speech doesn't always result in arbitrary restrictions on speech. Not for any profound ultimate reason, but just because that's just not how the herd dynamics of on particular judiciary worked. > But unless we can all admit that we suck at determining who should speak or not, we really don't have a basis to continue the conversation, legally or philosophically. Okay. But that's a bit of a strawman. I don't see anyone here arguing that perfect censorship is possible. NB: most people in this thread aren't even arguing against free speech. We just don't think you're providing a compelling justification for free speech. Which is different from disagreeing with your conclusion. But the difference isn't pedantic; it has important down-stream effects and implications. > insisting man is a rational animal is yet another can of worms which I didn't open up... I don't think man is a rational animal at all, and that doesn't change my opinion or where I think the conversation has to begin. Well, I think my entire point was that you do open that can of worms and perhaps don't even realize it. Perhaps you misunderstand what I mean by "rational" here. I don't mean "perfectly rational" or "good at reasoning" or "not susceptible to emotion/propaganda" or anything like that. I mean it in a much more basic "what is that thing that is happening when we think and speak, regardless of any consideration of truth or correctness or progress or any of that" sense. To keep things concise and specific, the following sentences exemplify the thing I find philosophically suspect in the way you think about free speech: - "a lot of those times we got so upset about people saying various things, we were wrong. Those people changed all of us for the better." - "we really suck at predicting the difference between harm and progress." - "Unless we continue to humbly think we could continue to be wrong, we stop evolving." I disagree that these propositions are even particularly meaningful. To be clear and to avoid a tangent, it's not that I disagree because I think the opposite. I.e., I disagree equally and in the exact same way with the statement "we are good at predicting the difference between harm and progress". My disagreement is at a fundamental and philosophical level. In the sense that I think there's a bunch of incorrect stuff we have to assume about the role that rationality plays in human thought and human language (and, therefore, human politics) in order for a discussion about any of these propositions to even make sense. Perhaps this will help get the point across: when I say "you think man is a rational animal", what I really mean is that you have a very specific type of answer you're going to give to the question: "what is the reason that it doesn't occur to us to use any of the quotes I listed above to talk about deer or bears or whales?" And your answer to that question is simply not the answer I would give. (NB, to avoid a tangent, it's the reason those sentences have meaning for humans and not other animals -- not whether they have meaning for one and not the other -- that is the thing that I think we disagree on at some sort of fundamental philosophical level.) You see enlightened subjects coming to belief (perhaps false or perhaps true) through the use of cognition (perhaps logical or perhaps emotional; perhaps sound logic or perhaps bad logic; perhaps positive emotion or perhaps negative emotion). I see a herd of animals acted upon by emergent social phenomenon over which no one of the herd has particularly much control. When I think about the reason for free speech, I think about herd dynamics and the importance (or not) of entropy. When you think about the reason for free speech, you think about individuals reasoning and the limits (or not) of rationality. Of course both of us see shades of each, I'm just much more to one side of that continuum and you're much more to the other side.

AnimalMuppet 6y ago

> Insisting that man is a rational animal, or even that the search for truth will always lead to good outcomes, is... just not historically compelling. That's fair. But insisting that preventing speech will always lead to good outcomes is also not historically compelling. The problem then becomes, which speech to block. Well, speech that causes harm. That's great, in theory. But do you have an objective measure? A measure that's universally agreed-upon? And if not, who decides? And now you're back to DanielBMarkham's argument. What if the people who decide are the equivalent of the pre-Civil-War South? (They would have classified abolitionist speech as causing harm - I mean, look at the war it caused!) Or of the 1950s with respect to gay rights? Or just hard-core Republicans or Democrats? I'm sure the Chinese Communist Party could also come up with some definitions of "causing harm" that are, um, not ones that I would agree with. I am unwilling to trust very many people with that power...

throwawaygh 6y ago
> But insisting that preventing speech will always lead to good outcomes is also not historically compelling yes, agreed. (Also, I really meant it when I said "I'm pro-free speech".) > And now you're back to DanielBMarkham's argument I don't think so. His argument still seems somehow fundamentally wrong. These notions of good and evil, of true and false, etc., all seem to somehow miss the point for me. I guess here's a good specific way of making this point: I would support free speech even if the censor were perfectly good and omniscient and all-powerful and maximally ethical and perfectly charismatic. Perhaps especially if. How would DanielBMarkham's justification for free speech ever get you to that point? I don't think it does. Also, getting the justification right somehow doesn't seem academic to me at all. It seems quite fundamental. Why? because any supporter of censorship does believe that their censor is, if not perfect, at least better and truer and more charismatic. And perhaps they don't want the censor to be all powerful, but certainly do what the censor to be more powerful.