4 ms·

Well yeah, the German constitution doesn’t guarantee an absolute right to freedom of speech. There is a clause to the effect of “These rights shall find their l

Well yeah, the German constitution doesn’t guarantee an absolute right to freedom of speech. There is a clause to the effect of “These rights shall find their limits in the provisions of general laws” In the USA, however, freedom of speech is an absolute right. There are some narrow limitations (Libel, Calls to Violence), however the legislature does not have the power to add limits without a constitutional amendment, which requires a super-majority.

gizmo686 4y ago
The US Supreme Court does, however, have the power to add limits. In fact all all of the current limits to free speech are inventions of the Court.
- SllX 4y ago
  Court jurisprudence over time continues to favor more free speech rather than less. Even abominations like Schenck v. United States have been overturned with Brandenburg v. Ohio constraining the limitations to inciting imminent lawless action (e.g. intentionally trying to start a riot).
krapp 4y ago
>In the USA, however, freedom of speech is an absolute right. There are some narrow limitations (Libel, Calls to Violence), however the legislature does not have the power to add limits without a constitutional amendment. That there are limitations means it isn't an absolute right. The fact that the First Amendment only limits Congress means private enterprise has the right to limit speech in ways the government can't - this right is also defined in the Constitution by the 10th Amendment (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.)
kelseyfrog 4y ago
Why is it that Americans don't use Germany as an example of a country sliding into authoritarian censorship, but would argue such if the same restrictions were applied to the US?
- colonCapitalDee 4y ago
  Because German society is very different from American society due to historical factors. The modern German state and people must grapple with their country's role in WW2 and the Holocaust. They have chosen to limit free speech for the sake of preventing future catastrophes, and that seems quite sensible to me. America's history isn't pristine by a long shot, but we don't have a legacy comparable to the Germans to grapple with. Without a clear and compelling reason for limiting speech, myself and most Americans favor free speech. Attempting to restrict speech without a clear and compelling reason (and I believe that such reasons do not currently exist in America) would be tyranny.
  - kelseyfrog 4y ago
    That makes sense. Most of the time it comes across as an absolute: there is no such thing as a clear and compelling reason and none could ever exist.
- SllX 4y ago
  Live and let live is the order of the day between the United States and Germany. We are separate sovereign nations, allies, do not present as threats to each other, we each have our own values but Germany’s values are close enough to ours to be basically compatible and isn’t trying to export its censorship regime to the United States. Why would we rock that boat absent a reason?
- 0xBDB 4y ago
  German speech policies are absolutely not without critics in the United States. I take no position on whether these criticisms are correct; just supplying information. https://reason.com/2022/09/23/germanys-criminalization-of-online-offensiveness-shows-the-perils-of-weakening-the-first-amendment/ https://reason.com/2022/09/23/germanys-criminalization-of-on... As a practical matter I'd guess that even civil-libertarian Americans don't spend a lot of time criticizing Germany and France for several reasons: 1) They're allies. 2) Some of us don't know where they are. 3) For the most part, they're obviously free countries. There's simply going to be cultural variation on some things - free speech, the death penalty, etc. - for historical and cultural reasons.
hvdijk 4y ago
The US First Amendment does not say anything about libel or calls to violence. I am not aware of other amendments doing so either. What is the rationale for allowing these limitations on speech that cannot equally be applied to hate speech?
- gmarx 4y ago
  The right to free speech does not protect your right to commit crimes or civilly damage someone merely by speaking as part of the crime or tort. So if you and your friends plan to rob a bank together, the planning, or conspiracy, can be a separate charge in addition to the robbery. Libel is a tort because you lie (important) to damage someone's reputation and this could cost them money. Hate speech is mostly just hurting peoples feelings. It neither helps cause physical damage nor costs the victims money. You cannot, in the US, ban the expression of a thought just because you think somewhere down the line it could result in damage to someone. So three guys conspire to burn down a church- that could damage someone. A guy writing on the internet that churches are full of pedos and someone who reads that decides to burn down a church? The guy who burns the church only committed a crime. There could be grey areas between those two situations and that is for law to decide. But the crime cannot be essentially the thoughts and ideas expressed
  - hvdijk 4y ago
    > The right to free speech does not protect your right to commit crimes or [...] If hate speech were to be made a crime, your exact same argument "the right to free speech does not protect your right to commit crimes" could and would be used as an argument why the First Amendment supposedly does not apply. > It neither helps cause physical damage nor costs the victims money. You cannot, in the US, ban the expression of a thought just because you think somewhere down the line it could result in damage to someone. That is exactly what your example of planning to rob a bank is. The planning to rob a bank does not cause any damage. The planning to rob a bank does not cause any victims any money. Actually executing that plan does that, but the planning does not guarantee that the execution will happen. Yet if I were to say "You cannot, in the US, ban it just because you think somewhere down the line it could result in damage to someone" you would rightly dismiss it as nonsense. > Hate speech is mostly just hurting peoples feelings. We may disagree on the "mostly", but even you are acknowledging that it is not limited to that, so let's focus on cases that can't be considered that. > Libel is a tort because you lie (important) to damage someone's reputation and this could cost them money. Okay, now consider for instance well-known conspiracy theories that the world is controlled by (insert group here). They are lies, they damage the reputation of many if not most members of the group, and this could cost members of the group money. They are not libellous if not said about specific people, they are generally considered hate speech if based on any of a specific set of protected characteristics, but despite the exact same reasoning applying to both, libel would not be considered protected speech, and, as far as I understand, this particular form of hate speech would be. It is also easy to think up scenarios where supposedly constitutionally protected hate speech "helps" cause physical damage: if without the hate speech, a group of people would be left alone, but with the hate speech, other people become convinced that it is morally defensible or even necessary to commit crimes against those people. I can see no distinction in the constitution to justify this. I understand that this is how US courts interpret the constitution, but everything I can see tells me this is an arbitrary distinction drawn up by US courts with no actual basis in the constitution.
dragonwriter 4y ago
> In the USA, however, freedom of speech is an absolute right. No, its not, just as conflicting affirmative grants of government power are not absolute grants. Were it an absolute right, there would be no such thing as defamation liability, for instance. > There are some narrow limitations (Libel, Calls to Violence), however the legislature does not have the power to add limits without a constitutional amendment That’s true in theory, but in practice whether an exception exists and what its boundary is not a question which is resolved until after a legislatige body (federal or state) creates a new prohibition, and it is challenged. So there are potentially infinite unknown limitations that exist, but merely haven’t been discovered because a legislature has not created a law which would require them. So legislatures can provide an opportunity for courts to discover new exceptions via normal legislation, even if they can’t create them. And sometimes, courts discover new ones in areas previously thought settled, like the 1st Circuit “discovering” a broader defamation exception for private matters than was generally understood to exist: https://www.hklaw.com/en/insights/publications/2009/04/federal-court-truth-is-not-a-complete-defense-for https://www.hklaw.com/en/insights/publications/2009/04/feder...

gizmo686 4y ago

The US Supreme Court does, however, have the power to add limits. In fact all all of the current limits to free speech are inventions of the Court.

SllX 4y ago
Court jurisprudence over time continues to favor more free speech rather than less. Even abominations like Schenck v. United States have been overturned with Brandenburg v. Ohio constraining the limitations to inciting imminent lawless action (e.g. intentionally trying to start a riot).

krapp 4y ago

>In the USA, however, freedom of speech is an absolute right. There are some narrow limitations (Libel, Calls to Violence), however the legislature does not have the power to add limits without a constitutional amendment. That there are limitations means it isn't an absolute right. The fact that the First Amendment only limits Congress means private enterprise has the right to limit speech in ways the government can't - this right is also defined in the Constitution by the 10th Amendment (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.)

kelseyfrog 4y ago

Why is it that Americans don't use Germany as an example of a country sliding into authoritarian censorship, but would argue such if the same restrictions were applied to the US?

colonCapitalDee 4y ago
Because German society is very different from American society due to historical factors. The modern German state and people must grapple with their country's role in WW2 and the Holocaust. They have chosen to limit free speech for the sake of preventing future catastrophes, and that seems quite sensible to me. America's history isn't pristine by a long shot, but we don't have a legacy comparable to the Germans to grapple with. Without a clear and compelling reason for limiting speech, myself and most Americans favor free speech. Attempting to restrict speech without a clear and compelling reason (and I believe that such reasons do not currently exist in America) would be tyranny.
- kelseyfrog 4y ago
  That makes sense. Most of the time it comes across as an absolute: there is no such thing as a clear and compelling reason and none could ever exist.
SllX 4y ago
Live and let live is the order of the day between the United States and Germany. We are separate sovereign nations, allies, do not present as threats to each other, we each have our own values but Germany’s values are close enough to ours to be basically compatible and isn’t trying to export its censorship regime to the United States. Why would we rock that boat absent a reason?
0xBDB 4y ago
German speech policies are absolutely not without critics in the United States. I take no position on whether these criticisms are correct; just supplying information. https://reason.com/2022/09/23/germanys-criminalization-of-online-offensiveness-shows-the-perils-of-weakening-the-first-amendment/ https://reason.com/2022/09/23/germanys-criminalization-of-on... As a practical matter I'd guess that even civil-libertarian Americans don't spend a lot of time criticizing Germany and France for several reasons: 1) They're allies. 2) Some of us don't know where they are. 3) For the most part, they're obviously free countries. There's simply going to be cultural variation on some things - free speech, the death penalty, etc. - for historical and cultural reasons.

hvdijk 4y ago

The US First Amendment does not say anything about libel or calls to violence. I am not aware of other amendments doing so either. What is the rationale for allowing these limitations on speech that cannot equally be applied to hate speech?

gmarx 4y ago
The right to free speech does not protect your right to commit crimes or civilly damage someone merely by speaking as part of the crime or tort. So if you and your friends plan to rob a bank together, the planning, or conspiracy, can be a separate charge in addition to the robbery. Libel is a tort because you lie (important) to damage someone's reputation and this could cost them money. Hate speech is mostly just hurting peoples feelings. It neither helps cause physical damage nor costs the victims money. You cannot, in the US, ban the expression of a thought just because you think somewhere down the line it could result in damage to someone. So three guys conspire to burn down a church- that could damage someone. A guy writing on the internet that churches are full of pedos and someone who reads that decides to burn down a church? The guy who burns the church only committed a crime. There could be grey areas between those two situations and that is for law to decide. But the crime cannot be essentially the thoughts and ideas expressed
- hvdijk 4y ago
  > The right to free speech does not protect your right to commit crimes or [...] If hate speech were to be made a crime, your exact same argument "the right to free speech does not protect your right to commit crimes" could and would be used as an argument why the First Amendment supposedly does not apply. > It neither helps cause physical damage nor costs the victims money. You cannot, in the US, ban the expression of a thought just because you think somewhere down the line it could result in damage to someone. That is exactly what your example of planning to rob a bank is. The planning to rob a bank does not cause any damage. The planning to rob a bank does not cause any victims any money. Actually executing that plan does that, but the planning does not guarantee that the execution will happen. Yet if I were to say "You cannot, in the US, ban it just because you think somewhere down the line it could result in damage to someone" you would rightly dismiss it as nonsense. > Hate speech is mostly just hurting peoples feelings. We may disagree on the "mostly", but even you are acknowledging that it is not limited to that, so let's focus on cases that can't be considered that. > Libel is a tort because you lie (important) to damage someone's reputation and this could cost them money. Okay, now consider for instance well-known conspiracy theories that the world is controlled by (insert group here). They are lies, they damage the reputation of many if not most members of the group, and this could cost members of the group money. They are not libellous if not said about specific people, they are generally considered hate speech if based on any of a specific set of protected characteristics, but despite the exact same reasoning applying to both, libel would not be considered protected speech, and, as far as I understand, this particular form of hate speech would be. It is also easy to think up scenarios where supposedly constitutionally protected hate speech "helps" cause physical damage: if without the hate speech, a group of people would be left alone, but with the hate speech, other people become convinced that it is morally defensible or even necessary to commit crimes against those people. I can see no distinction in the constitution to justify this. I understand that this is how US courts interpret the constitution, but everything I can see tells me this is an arbitrary distinction drawn up by US courts with no actual basis in the constitution.

dragonwriter 4y ago

> In the USA, however, freedom of speech is an absolute right. No, its not, just as conflicting affirmative grants of government power are not absolute grants. Were it an absolute right, there would be no such thing as defamation liability, for instance. > There are some narrow limitations (Libel, Calls to Violence), however the legislature does not have the power to add limits without a constitutional amendment That’s true in theory, but in practice whether an exception exists and what its boundary is not a question which is resolved until after a legislatige body (federal or state) creates a new prohibition, and it is challenged. So there are potentially infinite unknown limitations that exist, but merely haven’t been discovered because a legislature has not created a law which would require them. So legislatures can provide an opportunity for courts to discover new exceptions via normal legislation, even if they can’t create them. And sometimes, courts discover new ones in areas previously thought settled, like the 1st Circuit “discovering” a broader defamation exception for private matters than was generally understood to exist: https://www.hklaw.com/en/insights/publications/2009/04/federal-court-truth-is-not-a-complete-defense-for https://www.hklaw.com/en/insights/publications/2009/04/feder...