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This is a problem with the post-'60s post-Chatterly trial conception of free speech. Since then, amidst other developments, the concept of free speech has been

This is a problem with the post-'60s post-Chatterly trial conception of free speech. Since then, amidst other developments, the concept of free speech has been conflated with a rabid opposition to any obscenity laws. The US and Great Britain have had a much longer history in which free speech had a meaning separate from the absence of prohibition against obscene material (with some small exceptions we have today like child pornography). There is actually no contradiction between moderating to remove obscene and other illegal content and supporting the principle of free speech. It's just our understanding of what free speech is has become deeply muddled. Depending on your understanding of free speech, the Comstock Law regime for example either contradicts the principle or fits within that principle. SA is a good example of the limits of the post-60s conception of free speech and the problems associated with a fanatical dedication to an only recently established reinterpretation of the first amendment. James Madison would not have recognized the post-60s speech regime as something he was establishing in Bill of Rights. He would have seen it as an odd stretch of a relatively ancient and well established principle under British law and political culture.

Apocryphon 5y ago
Is there more information about the changing definition of free speech? How did modern activists get it so wrong?
- deleted 5y ago
  [deleted]
dragonwriter 5y ago
> There is actually no contradiction between moderating to remove obscene and other illegal content and supporting the principle of free speech. Yes, there is. There is, in fact, a fundamental contradiction between the idea that the State can declare content “illegal” and “free speech”. The obscenity exception turns free speech from “the government cannot ban content” to “the government cannot ban content unless both the judge [0] and a sufficiently large portion of the public sufficiently dislikes it [1] and it has to do with sex and/or excretion.” That's not to say the founders wouldn't have agreed with it; the founders agreed that hereditary slavery had no conflict with the right of persona not to have life or liberty deprived without due process of law, so as a whole thet had pretty big blind spots in their conception of rights. [0] the official prong being that the work lacks serious literary, artistic, political, or scientific value [1] that the average member of the community would find it appeals to a prurient interest.
- unclebucknasty 5y ago
  These arguments take a form which implies that each right operates in a vacuum. But, of course, if we were to allow any right without exception, then we would soon find that we have no rights. Not only would the limitless interpretation of one right eventually decimate other rights but, apart from that, it would also undermine society's solvency; hence its ability to enforce even the expanded right. Rights, as ideas, have no utility. They must be layered onto the substrate of a functioning society. Hence, there has always been work towards achieving balance, as every right must be circumscribed to some degree. This is why we have courts, reasonableness standards, etc. So, sure, we could interpret these as "contradictions", but that becomes a meaningless characterization in any practical sense.
  - mountainb 5y ago
    They don't operate within a vacuum: the historical context matters. Over the last 400-500 years, the Anglo-American elite mostly decided to support the free exchange of ideas relating to politics and religion to support vigorous debate and an open public sphere. That's the primary value that the first amendment is supposed to protect. It's also supposed to act as a sort of political safety valve that prevents civil war and that tends to privilege parliamentary procedure over arbitrary executive/royal rule. The intention was not to enshrine a right to smut in the constitution, nor was it to legalize criminal harassment, threats, or defamation. That's something that was read into it by judicial activism.
    - unclebucknasty 5y ago
      >The intention was not to enshrine a right to smut in the constitution...That's something that was read into it by judicial activism The phrase "judicial activism" has a bit of a pejorative tone to it, but I'm not sure that we can identify a single right enshrined in the Constitution that hasn't been so challenged or invoked in ways not initially "intended". There's no practical way to avoid that, and I don't think we'd want to in any case. But, this was anticipated and we have a system for adjudicating such questions. So, I don't take exception to the idea that these things can be considered, tested and decided. In fact, I take exception to those who pretend that's not the case or that we have and must blindly enforce 1A and other rights.

Apocryphon 5y ago

Is there more information about the changing definition of free speech? How did modern activists get it so wrong?

deleted 5y ago
[deleted]

dragonwriter 5y ago

> There is actually no contradiction between moderating to remove obscene and other illegal content and supporting the principle of free speech. Yes, there is. There is, in fact, a fundamental contradiction between the idea that the State can declare content “illegal” and “free speech”. The obscenity exception turns free speech from “the government cannot ban content” to “the government cannot ban content unless both the judge [0] and a sufficiently large portion of the public sufficiently dislikes it [1] and it has to do with sex and/or excretion.” That's not to say the founders wouldn't have agreed with it; the founders agreed that hereditary slavery had no conflict with the right of persona not to have life or liberty deprived without due process of law, so as a whole thet had pretty big blind spots in their conception of rights. [0] the official prong being that the work lacks serious literary, artistic, political, or scientific value [1] that the average member of the community would find it appeals to a prurient interest.

unclebucknasty 5y ago
These arguments take a form which implies that each right operates in a vacuum. But, of course, if we were to allow any right without exception, then we would soon find that we have no rights. Not only would the limitless interpretation of one right eventually decimate other rights but, apart from that, it would also undermine society's solvency; hence its ability to enforce even the expanded right. Rights, as ideas, have no utility. They must be layered onto the substrate of a functioning society. Hence, there has always been work towards achieving balance, as every right must be circumscribed to some degree. This is why we have courts, reasonableness standards, etc. So, sure, we could interpret these as "contradictions", but that becomes a meaningless characterization in any practical sense.
- mountainb 5y ago
  They don't operate within a vacuum: the historical context matters. Over the last 400-500 years, the Anglo-American elite mostly decided to support the free exchange of ideas relating to politics and religion to support vigorous debate and an open public sphere. That's the primary value that the first amendment is supposed to protect. It's also supposed to act as a sort of political safety valve that prevents civil war and that tends to privilege parliamentary procedure over arbitrary executive/royal rule. The intention was not to enshrine a right to smut in the constitution, nor was it to legalize criminal harassment, threats, or defamation. That's something that was read into it by judicial activism.
  - unclebucknasty 5y ago
    >The intention was not to enshrine a right to smut in the constitution...That's something that was read into it by judicial activism The phrase "judicial activism" has a bit of a pejorative tone to it, but I'm not sure that we can identify a single right enshrined in the Constitution that hasn't been so challenged or invoked in ways not initially "intended". There's no practical way to avoid that, and I don't think we'd want to in any case. But, this was anticipated and we have a system for adjudicating such questions. So, I don't take exception to the idea that these things can be considered, tested and decided. In fact, I take exception to those who pretend that's not the case or that we have and must blindly enforce 1A and other rights.