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Ken White, a well known former prosecutor turned defense lawyer and first amendment law expert/speaker (amongst other things), did an interesting article toward
by xoa 4y ago
Ken White, a well known former prosecutor turned defense lawyer and first amendment law expert/speaker (amongst other things), did an interesting article towards the end of last year talking about the importance of being clear about terminology in these discussions ("In Defense Of Free Speech Pedantry" [0]). I think that's very important in these online debates because "freedom of speech" has become a somewhat overloaded that people can use to mean different things. I tend to think of "Free Speech" specifically in terms of what he calls Free Speech Rights (FSR), the actual legal rights afforded by the 1st Amendment, 14th Amendment and subsequent court rulings and precedent, with what people do with it and my own opinions a separate sphere. A lot of people though are bringing in what he terms Free Speech Culture and Speech Decency as well. Just because we legally can do something doesn't mean it's good to exercise that power. Norms sometimes should be challenged, but also are usually worth a bit of thought and discretion. And legal FSR apply to everyone and preserves a forever ongoing cycle of discussion and culture, that's part of the point, and in turn protect criticism and counter criticism, exclusion as well as inclusion. The right to speak necessarily entails the right to not speak.
I don't know if his proposed terms will ultimately catch on and make the most sense, but I do think it's worth some effort in being more precise with our language because FSR vs FSC and SD involves extremely different applications of power and risk, and separating out the domains can help everyone think more clearly about the topic. In the case of this classic saying, it involves all of them in a compact manner. Someone can think speech is just plain wrong, disgusting and evil even, but not want to see force used upon the speaker or any other speaker for a variety of good reasons.
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0: https://popehat.substack.com/p/in-defense-of-free-speech-pedantry https://popehat.substack.com/p/in-defense-of-free-speech-ped...
- jawns 4y agoI've been watching some First Amendment Auditing videos, and it is amazing the degree of ignorance there is not only among the public, but also public servants, including police officers, who should absolutely know that constitutionally protected activity can't be turned into a crime just because someone finds it unpalatable. In fact, that's precisely the reason why First Amendment protections exist. We wouldn't need them if there weren't speech, religions, journalists, or protests that some people didn't want. I understand your point about "just because you can doesn't mean you should," but on the other hand, we will never know whether constitutional protections have real force unless we see that they work for rights that other people would rather we not exercise.
- 0xcde4c3db 4y agoMany police officers do know, they just see respect for rights as an impediment to their "real" job of enforcing order. The culture largely teaches them that they're in a war against criminals and that anything they do to win that war is justified [1]. [1] https://harvardlawreview.org/2015/04/law-enforcements-warrior-problem/ https://harvardlawreview.org/2015/04/law-enforcements-warrio...
- nailer 4y ago> I tend to think of "Free Speech" specifically in terms of what he calls Free Speech Rights (FSR), the actual legal rights afforded by the 1st Amendment, 14th Amendment and subsequent court rulings and precedent, with what people do with it and my own opinions a separate sphere. A lot of people though are bringing in what he terms Free Speech Culture and Speech Decency as well. This is a very American take. Which might be reasonable as in the UK and Australia for example, the government has much more control of speech. But it feels odd, like when Americans generalise very odd things about 'white' and 'black' people they when only mean Americans. But I think even before the constitution, the moral value exists. And that's the thing people all over the world have fought for. > Free Speech Culture and Speech Decency as well. I don't think the ethics/values of free speech are summarised by either of these terms. Rather I'll keep using 'free speech' to mean the moral value, and 'US constitutional law' to mean US constitutional law.
- trabant00 4y ago> Just because we legally can do something doesn't mean it's good to exercise that power. What does "good" and "bad" have to do with this? We have laws specifically so we are not at the mercy of moral judgement. We tried that already, it didn't work. If it's legal you either accept it or try change the law. Anything else is mob justice.
- klyrs 4y agoYou can legally share every last detail of the poop you just left in the toilet, pictures and all. If you choose to do that at the lunch table at work, nobody is obliged to remain seated with you. Ergo, sharing such details is not a good idea. Even though it is perfectly legal. Those co-workers who vacated the table are exercising their rights in walking away. Call that "mob justice" if you will.
- briantakita 4y agoThere's a difference between walking away & taping someone's mouth at the table. Walking away is freedom of association. Taping someone's mouth is censorship & a forced imposition or outright violence against a person.
- klyrs 4y agoIs there a rash of mouth taping that I'm unaware of?
- kelseyfrog 4y agoParent is trying to draw a parallel between mouth taping and censorship. The problem is that lunchroom scenarios aren't cleanly isomorphic to online scenarios.
- klyrs 4y agoOkay. Let's say you like to share details of your bathroom escapades on a forum dedicated to 3d printing. The admins give you a few warnings and eventually kick you off, because nobody wants to hear that. I daresay that isn't "violence." It's still an exercise of free association where the forum moderators have decided your speech is "not good" despite being perfectly legal.
- sourcecodeplz 4y agoIf I summarized what you said into one word: decency. Would that be okaysh?
- thagsimmons 4y agoMy heart sinks when I see this sort of parochial US-centric definition of free speech. The vast majority of the world is not protected by and has no interest in US constitutional rights. The principles of free speech are universal, much more important and much broader than the US constitution. There are many ways to foster and promote free speech that has nothing to do with US law. Yes, we're often discussing US companies when this topic comes up, but you should realise that people outside the United States are not covered by US constitutional guarantees, and US companies don't treat us like we are. We must foster a discussion where the principles of free speech are seen to be important outside of this narrow, legalistic, US-centered sense.
- cscurmudgeon 4y ago> has no interest in US constitutional rights Not sure about that. I know friends outside the US who know more about US laws than their own countries' laws. https://en.wikipedia.org/wiki/Soft_power https://en.wikipedia.org/wiki/Soft_power
- thagsimmons 4y agoSorry, but this is just the kind of narrow parochialism I'm complaining about. I said "the vast majority of the world", and I stand by that - the idea that ordinary people in China, India, Africa, the Pacific and so on give one iota of a damn about US law is completely absurd. Furthermore, this attitude is a fantasy even within the Anglosphere - I live in New Zealand, and I bet not one person in 100 could give me a clear statement of what rights the 1st amendment guarantees and what its limits are, beyond the barest outline.
- int_19h 4y agoIt's a fantasy even in US. Witness all the people demanding that e.g. Facebook "respects their First Amendment rights".
- cscurmudgeon 4y agoI am Indian, and I give a damn about US law. > Furthermore, this attitude is a fantasy even within the Anglosphere - I live in New Zealand, and I bet not one person in 100 could give me a clear statement of what rights the 1st amendment guarantees and what its limits are, beyond the barest outline. They don't have to. Popular culture is saturated with a low res version of 1st amendment. What is more annoying about parochialism is every thing turning into mud slinging on the US.
- ecshafer 4y agoI disagree with this idea, that we are talking about Free Speech Rights. When I see people say Free Speech, it is in the lens of the inalienable right that we all have. The US constitution does protect some specific scope of Free Speech, but any limitations legally are still infringements upon the Natural Right of Free Speech. Rights do not come from the Government, they are innate and natural. The government can merely infringe or protect those rights. A company or government infringing on those rights is unethical, because infringing upon any other's rights is unethical, regardless of what the US government says.
- Dudeman112 4y agoHow can a right possibly be innate and natural? As in, what mechanisms binds what you think rights are (what do you think rights are?) to the laws that govern the natural world?
- Vecr 4y agoIt's natural in the sense that you have it if you are the only person on an island somewhere, assuming there's no aircraft or satellites going overhead. In that situation you could literally say anything you wanted, as long as you can collect food and water and not die of some other cause before you finish saying it. Kind of goes for other things to a lesser extent, for example you have total privacy and there's no one there to take away any guns you have, but you do have to think about other people more in those cases, as the island thing is just a thought exercise.
- Dudeman112 4y agoSound like you're defining "rights" along the lines of "what you can do in isolation, as long as it doesn't affect anyone else". Does that seem correct?
- Vecr 4y agoI think that's how most people define natural rights unless they want to invoke some sort of creator.