6 ms·

The US's first amendment is rather unique amongst Western nations. Basically it says "the government cannot infringe on this inalienable right", that is the gov

by all2 3y ago

The US's first amendment is rather unique amongst Western nations. Basically it says "the government cannot infringe on this inalienable right", that is the government cannot govern speech. Here's the actual language Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The key phrase "or abridging the freedom of speech, or of the press". As far as I know, this kind of language is absent from other Western nations. For example, Canada jails people for criticizing those of Islamic persuasion. [0] Note, the article doesn't record what the accused actually said. Here's a wikipedia overview of hate speech laws by country [1], though it is wikipedia, so take it with a grain of salt. Here's a somewhat relevant piece from Reason that takes an anti-hate-speech stance [2] where the author details the unconstitutionality of hate speech laws. "Free speech" as we understand it in the US is unique in the world. As far as the restrictions at state and federal level, these are considered unconstitutional, and you'll see a large number of them struck down in various courts across the country. Those in power definitely seek to expand their powers and fortunately we have a law that allows the citizenry to push back against that. [0] https://www.cbc.ca/news/canada/hamilton/muslim-hate-1.6145160 https://www.cbc.ca/news/canada/hamilton/muslim-hate-1.614516... [1] https://en.wikipedia.org/wiki/Hate_speech_laws_by_country https://en.wikipedia.org/wiki/Hate_speech_laws_by_country [2] https://reason.com/2021/05/20/teen-arrested-under-connecticuts-unconstitutional-hate-speech-law-for-racist-social-media-post/ https://reason.com/2021/05/20/teen-arrested-under-connecticu...

0x706B 3y ago
Hm, not quite sure I can follow the _unique_ part. E.g. german constitution is quite similar: ``` Article 5 [Freedom of expression, arts and sciences] (1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour. (3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution. ``` (2) notes that there _are_ limits, but if I understood the concept of gag orders and also wolverine876's answer correct, thats the same for the US: ``` Civil rights, including those in the First Amendment, are not absolute. Regarding speech, you also can't harass people, threaten them, defraud them, incite violence, ```
- Brybry 3y ago
  I was under the impression that Germany bans Nazi symbols (with some exceptions for education/art). [1] In comparison, Nazi symbols are protected hate speech in the US. [2] The US has tried to ban political parties in the past but eventually courts find that sort of thing unconstitutional. [3] [1] https://en.wikipedia.org/wiki/Strafgesetzbuch_section_86a https://en.wikipedia.org/wiki/Strafgesetzbuch_section_86a [2] https://en.wikipedia.org/wiki/Bans_on_Nazi_symbols#United_States https://en.wikipedia.org/wiki/Bans_on_Nazi_symbols#United_St... [3] https://en.wikipedia.org/wiki/Communist_Control_Act_of_1954 https://en.wikipedia.org/wiki/Communist_Control_Act_of_1954
  - weinzierl 3y ago
    In Germany Nazi symbols are strictly banned but you are allowed to name soldiers killers. My hunch is that calling a veteran or active member of the armed forces of the US a killer would not go so well and might very well end in a slander suit. When you free speech is restricted still seems pretty arbitrary to me [shrug].
    - monocasa 3y ago
      You can call US service members killers all you want. In fact "baby killer" is a relatively common refrain during protests aimed at the military. Maybe in the UK with their asinine slander laws you'd have to be more quiet but that's pretty clearly first amendment protected territory in the US.
      - janalsncm 3y ago
        SLAPP suits are a thing in the US. You might not go to prison for your speech but that doesn’t mean you can do it.
        monocasa 3y ago
        SLAPP suits come from massive sources of capital which have enough counsel either on retainer or simply have enough money that they don't miss ~$50k on a whim to get back at someone who they think besmirched them that one time. That doesn't really apply to US service members.
skissane 3y ago
> The US's first amendment is rather unique amongst Western nations. > As far as I know, this kind of language is absent from other Western nations. For example, Canada jails people for criticizing those of Islamic persuasion. The US is not unique in having constitutional protections of free speech. For example part of the Canadian constitution is the "Canadian Charter of Rights and Freedoms", which forms part of the Constitution Act 1982. Section 2 of which says "Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;" – that's essentially saying the same thing as the US First Amendment. In Europe, article 9 of the European Convention on Human Rights (ECHR) protects "Freedom of thought, conscience and religion". The Convention is quasi-constitutional in nature – while it is an international treaty whose members are in theory free to leave at any time, in practice quitting it is impossible for many European countries–membership in the ECHR is a requirement for EU membership, so no EU country is going to get away with denouncing it. And many national constitutions have equivalent provisions, such as articles 4 and 5 of the Basic Law of Germany. One difference – the text of the US constitution doesn't contain any exceptions to the 1st Amendment, whereas the Canadian constitution, the ECHR, Germany's Basic Law, etc, explicitly state that freedom of speech/etc can be subject to limitations. However, in practice, even though the US constitution never explicitly says that the 1st Amendment has exceptions, the Supreme Court has always held that it does, although the scope of these exceptions has varied due to the evolving opinions of the Supreme Court – for the first century of the US's existence, SCOTUS allowed sweeping exceptions to the 1st Amendment; in the 20th century, it narrowed the allowed exceptions significantly, and developed some highly complex case law on which exceptions are allowed. The real difference is actually nothing to do with the text itself, it is all about case law – since the 20th century, SCOTUS has been very strict in only allowing quite limited exceptions to the 1st Amendment. Courts in Canada, Europe, etc, have always been much more liberal in allowing exceptions to the right of free speech. Now, possibly the difference between a text which provides no explicit exceptions versus a text which does may have influenced that, but I don't think it was decisive. It was not historically inevitable that SCOTUS would start interpreting the 1st Amendment much more strictly in the 20th century, if different justices had been appointed, it easily could have decided to stick with its 19th century case law which allowed greater exceptions to it. Conversely, even though Canadian/European/etc texts explicitly mention exceptions, their courts could have chosen to interpret those explicit exceptions far more narrowly, producing a result much closer to that of the US, if they had wished to do so.
sebosp 3y ago
Could it be possible to illustrate with an example just for clarity? How does this compare to, say, the Netherlands? For example what are things that are possible in the United States that are not possible in the Netherlands? I would assume there are things that are not legal but not penalised in the latter but under certain conditions would be addressed and penalised and there's no way around it, but would like to know of an example just to make it super clear for me. Thanks!
- alwayslikethis 3y ago
  In the US it is legal to advocate hate, such as denying Holocaust or promoting National Socialism or white supremacy. The courts have repeatedly struck down bans on hate speech. Not sure about the Netherlands, but this is illegal in many European countries.
  - krustymeathead 3y ago
    Radiolab has a great episode about how this more broad application of the first amendment sort of came about due to Oliver Wendell Holmes changing his mind about what actually constitutes a "clear and present danger" between two Supreme Court cases in 1919. https://radiolab.org/podcast/what-holmes https://radiolab.org/podcast/what-holmes
  - germandiago 3y ago
    Idk the US specifics but hate speech in Spain is something govt has used to prosecute others in the name of so many things and in so many situations that to me, it means nothing. Just having a negative opinion is "hate speech" if the right person gets annoyed and goes for you. It is a very powerful tool to shut up adversaries and it is extremely harmful for real opinions and real free speech.
    - all2 3y ago
      If you're itching to speak freely, we'd love to have you in the US. :D
  - 3y ago
contrarian1234 3y ago
It seems kinda arbitrary Earlier it was listed "..you also can't harass people, threaten them, defraud them, incite violence, distribute copyrighted information.." So where are these exceptions innumerated? Just purely from a technical point of view, why can defrauding be made illegal, but hate speech can not? It actually seems the number of exceptions is quite limited - so I never understood why they were not spelled out explicitly (like in an subsequent constitutional amendment for instance). It seems to undermine the authority of the bill of rights. The original text makes no provision for exceptions...
- all2 3y ago
  The specifics have been determined in case law. I'm not a lawyer, so I can't give a more detailed example. I can, however, give some examples (Mass Media Law at Utah State comes bubbling back into my mind, what a fun class). Yelling "fire" in a crowded theater, for example [0]. Another comment in this thread talks about the "clear and present danger" doctrine that came from the case. That case was followed by the Brandenburg v. Ohio [2] case in 1969, which instituted the current methodology used for determining what is "allowed" speech. That rule/methodology is called the "imminent lawless action" rule. [0] https://supreme.justia.com/cases/federal/us/249/47/ https://supreme.justia.com/cases/federal/us/249/47/ [1] https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater#The_Schenck_case https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the... [2] https://supreme.justia.com/cases/federal/us/395/444/ https://supreme.justia.com/cases/federal/us/395/444/
  - contrarian1234 3y ago
    Yeah, I'm not a lawyer but the system seems honestly nonsensical. They found the law inconvenient, so the court just effectively added a "clear and present danger" clause to the law. If there were problems with people abusing their freedom of speech, then you'd think the natural response would be to amended the bill of rights - and not just a bunch of unelected judges dreaming up something that seems "reasonable"
    - all2 3y ago
x1ph0z 3y ago
This is what the article says for [0] “Police say the man targeted people on social media and promoted hatred against them after an attack in London, Ont., in June, where four members of a family were killed.” Does that sound like criticism to you? It reads like harassment to me.
- all2 3y ago
  I don't know what the man said, only what the authorities reported. This is part of the danger of "hate speech" laws; if speech is deemed dangerous, discourse can be hidden behind public safety concerns and then wholly dismissed. It is then left to those who police speech to determine what is acceptable public discourse and what is not.
andrepd 3y ago
Wow, American exceptionalism claims have now gone so farad to claim that freedom of speech is unique to America! Not even the historical claim holds, as constitutional protections for free speech in France and Sweden predate the American constitution. > For example, Canada jails people for criticizing those of Islamic persuasion He was arrested, presented to court, and acquited. Therefore he was not "jailed". Also: the charge was inciting/organising a hate crime, in the wake of a killing of a Muslim father and his 15-year old daughter, not "criticising those of Islamic persuasion". Don't be a liar, it doesn't help your argument.
- all2 3y ago
  > Also: the charge was inciting/organising a hate crime True, but we don't know what the man actually said. So whether the charge was true or not remains solely decided by those policing speech. > He was arrested, presented to court, and acquited. Thank you for pointing this out. I should have been more careful in my reading of the source material.
amatecha 3y ago
Rather than posting a poorly-worded, short-on-facts news story about the guy in Hamilton saying some hate speech, you could cite the actual Canadian Criminal Code which is far more specific and worthy of discussion: https://www.criminal-code.ca/criminal-code-of-canada-section-319-2-wilful-promotion-of-hatred/index.html https://www.criminal-code.ca/criminal-code-of-canada-section... This is what the guy was charged with violating (as per https://hamiltonpolice.on.ca/news/hamilton-police-charge-male-with-promoting-hate/ https://hamiltonpolice.on.ca/news/hamilton-police-charge-mal... ) Framing it as "Canada jails people for criticizing those of Islamic persuasion" is disingenuous, as if Canada specifically has laws about some specific religion or faith.
- account42 3y ago
  Without knowing what was actually said that the courts deemed to be promoting hatred, "Canada jails people for criticizing those of Islamic persuasion" is a valid interpretation. Citing vague laws doesn't make this any more reasonable.
  - amatecha 3y ago
    IMO the worthwhile fact to share on an HN thread is "in Canada there are specific laws against inciting hatred through speech etc." and linking that criminal code entry, rather than mentioning and linking a specific news case that we have no real details on. At least the criminal code is a clearly-defined thing we can learn from and internalize, rather than a specific case where the public was not given enough information to make an informed judgement about (as per most news stories, IMO).
    - account42 3y ago
      Both are important really - the law and how it is interpreted by the courts. That we don't know the details of the case doesn't make it less concerning - on the contrary, media not reporting the relevant facts (in this case, what exactly was said/done) only makes this more concerning. Especially if the lack of reporting is due to fear of running foul of the same censorship laws.

by all2 3y ago

0x706B 3y ago

Hm, not quite sure I can follow the _unique_ part. E.g. german constitution is quite similar: ``` Article 5 [Freedom of expression, arts and sciences] (1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour. (3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution. ``` (2) notes that there _are_ limits, but if I understood the concept of gag orders and also wolverine876's answer correct, thats the same for the US: ``` Civil rights, including those in the First Amendment, are not absolute. Regarding speech, you also can't harass people, threaten them, defraud them, incite violence, ```

Brybry 3y ago
I was under the impression that Germany bans Nazi symbols (with some exceptions for education/art). [1] In comparison, Nazi symbols are protected hate speech in the US. [2] The US has tried to ban political parties in the past but eventually courts find that sort of thing unconstitutional. [3] [1] https://en.wikipedia.org/wiki/Strafgesetzbuch_section_86a https://en.wikipedia.org/wiki/Strafgesetzbuch_section_86a [2] https://en.wikipedia.org/wiki/Bans_on_Nazi_symbols#United_States https://en.wikipedia.org/wiki/Bans_on_Nazi_symbols#United_St... [3] https://en.wikipedia.org/wiki/Communist_Control_Act_of_1954 https://en.wikipedia.org/wiki/Communist_Control_Act_of_1954
- weinzierl 3y ago
  In Germany Nazi symbols are strictly banned but you are allowed to name soldiers killers. My hunch is that calling a veteran or active member of the armed forces of the US a killer would not go so well and might very well end in a slander suit. When you free speech is restricted still seems pretty arbitrary to me [shrug].
  - monocasa 3y ago
    You can call US service members killers all you want. In fact "baby killer" is a relatively common refrain during protests aimed at the military. Maybe in the UK with their asinine slander laws you'd have to be more quiet but that's pretty clearly first amendment protected territory in the US.
    - janalsncm 3y ago
      SLAPP suits are a thing in the US. You might not go to prison for your speech but that doesn’t mean you can do it.
      - monocasa 3y ago
        SLAPP suits come from massive sources of capital which have enough counsel either on retainer or simply have enough money that they don't miss ~$50k on a whim to get back at someone who they think besmirched them that one time. That doesn't really apply to US service members.

skissane 3y ago

> The US's first amendment is rather unique amongst Western nations. > As far as I know, this kind of language is absent from other Western nations. For example, Canada jails people for criticizing those of Islamic persuasion. The US is not unique in having constitutional protections of free speech. For example part of the Canadian constitution is the "Canadian Charter of Rights and Freedoms", which forms part of the Constitution Act 1982. Section 2 of which says "Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;" – that's essentially saying the same thing as the US First Amendment. In Europe, article 9 of the European Convention on Human Rights (ECHR) protects "Freedom of thought, conscience and religion". The Convention is quasi-constitutional in nature – while it is an international treaty whose members are in theory free to leave at any time, in practice quitting it is impossible for many European countries–membership in the ECHR is a requirement for EU membership, so no EU country is going to get away with denouncing it. And many national constitutions have equivalent provisions, such as articles 4 and 5 of the Basic Law of Germany. One difference – the text of the US constitution doesn't contain any exceptions to the 1st Amendment, whereas the Canadian constitution, the ECHR, Germany's Basic Law, etc, explicitly state that freedom of speech/etc can be subject to limitations. However, in practice, even though the US constitution never explicitly says that the 1st Amendment has exceptions, the Supreme Court has always held that it does, although the scope of these exceptions has varied due to the evolving opinions of the Supreme Court – for the first century of the US's existence, SCOTUS allowed sweeping exceptions to the 1st Amendment; in the 20th century, it narrowed the allowed exceptions significantly, and developed some highly complex case law on which exceptions are allowed. The real difference is actually nothing to do with the text itself, it is all about case law – since the 20th century, SCOTUS has been very strict in only allowing quite limited exceptions to the 1st Amendment. Courts in Canada, Europe, etc, have always been much more liberal in allowing exceptions to the right of free speech. Now, possibly the difference between a text which provides no explicit exceptions versus a text which does may have influenced that, but I don't think it was decisive. It was not historically inevitable that SCOTUS would start interpreting the 1st Amendment much more strictly in the 20th century, if different justices had been appointed, it easily could have decided to stick with its 19th century case law which allowed greater exceptions to it. Conversely, even though Canadian/European/etc texts explicitly mention exceptions, their courts could have chosen to interpret those explicit exceptions far more narrowly, producing a result much closer to that of the US, if they had wished to do so.

sebosp 3y ago

Could it be possible to illustrate with an example just for clarity? How does this compare to, say, the Netherlands? For example what are things that are possible in the United States that are not possible in the Netherlands? I would assume there are things that are not legal but not penalised in the latter but under certain conditions would be addressed and penalised and there's no way around it, but would like to know of an example just to make it super clear for me. Thanks!

alwayslikethis 3y ago
In the US it is legal to advocate hate, such as denying Holocaust or promoting National Socialism or white supremacy. The courts have repeatedly struck down bans on hate speech. Not sure about the Netherlands, but this is illegal in many European countries.
- krustymeathead 3y ago
  Radiolab has a great episode about how this more broad application of the first amendment sort of came about due to Oliver Wendell Holmes changing his mind about what actually constitutes a "clear and present danger" between two Supreme Court cases in 1919. https://radiolab.org/podcast/what-holmes https://radiolab.org/podcast/what-holmes
- germandiago 3y ago
  Idk the US specifics but hate speech in Spain is something govt has used to prosecute others in the name of so many things and in so many situations that to me, it means nothing. Just having a negative opinion is "hate speech" if the right person gets annoyed and goes for you. It is a very powerful tool to shut up adversaries and it is extremely harmful for real opinions and real free speech.
  - all2 3y ago
    If you're itching to speak freely, we'd love to have you in the US. :D
- 3y ago

contrarian1234 3y ago

It seems kinda arbitrary Earlier it was listed "..you also can't harass people, threaten them, defraud them, incite violence, distribute copyrighted information.." So where are these exceptions innumerated? Just purely from a technical point of view, why can defrauding be made illegal, but hate speech can not? It actually seems the number of exceptions is quite limited - so I never understood why they were not spelled out explicitly (like in an subsequent constitutional amendment for instance). It seems to undermine the authority of the bill of rights. The original text makes no provision for exceptions...

all2 3y ago
The specifics have been determined in case law. I'm not a lawyer, so I can't give a more detailed example. I can, however, give some examples (Mass Media Law at Utah State comes bubbling back into my mind, what a fun class). Yelling "fire" in a crowded theater, for example [0]. Another comment in this thread talks about the "clear and present danger" doctrine that came from the case. That case was followed by the Brandenburg v. Ohio [2] case in 1969, which instituted the current methodology used for determining what is "allowed" speech. That rule/methodology is called the "imminent lawless action" rule. [0] https://supreme.justia.com/cases/federal/us/249/47/ https://supreme.justia.com/cases/federal/us/249/47/ [1] https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater#The_Schenck_case https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the... [2] https://supreme.justia.com/cases/federal/us/395/444/ https://supreme.justia.com/cases/federal/us/395/444/
- contrarian1234 3y ago
  Yeah, I'm not a lawyer but the system seems honestly nonsensical. They found the law inconvenient, so the court just effectively added a "clear and present danger" clause to the law. If there were problems with people abusing their freedom of speech, then you'd think the natural response would be to amended the bill of rights - and not just a bunch of unelected judges dreaming up something that seems "reasonable"
  - all2 3y ago

x1ph0z 3y ago

This is what the article says for [0] “Police say the man targeted people on social media and promoted hatred against them after an attack in London, Ont., in June, where four members of a family were killed.” Does that sound like criticism to you? It reads like harassment to me.

all2 3y ago
I don't know what the man said, only what the authorities reported. This is part of the danger of "hate speech" laws; if speech is deemed dangerous, discourse can be hidden behind public safety concerns and then wholly dismissed. It is then left to those who police speech to determine what is acceptable public discourse and what is not.

andrepd 3y ago

Wow, American exceptionalism claims have now gone so farad to claim that freedom of speech is unique to America! Not even the historical claim holds, as constitutional protections for free speech in France and Sweden predate the American constitution. > For example, Canada jails people for criticizing those of Islamic persuasion He was arrested, presented to court, and acquited. Therefore he was not "jailed". Also: the charge was inciting/organising a hate crime, in the wake of a killing of a Muslim father and his 15-year old daughter, not "criticising those of Islamic persuasion". Don't be a liar, it doesn't help your argument.

all2 3y ago
> Also: the charge was inciting/organising a hate crime True, but we don't know what the man actually said. So whether the charge was true or not remains solely decided by those policing speech. > He was arrested, presented to court, and acquited. Thank you for pointing this out. I should have been more careful in my reading of the source material.

amatecha 3y ago

Rather than posting a poorly-worded, short-on-facts news story about the guy in Hamilton saying some hate speech, you could cite the actual Canadian Criminal Code which is far more specific and worthy of discussion: https://www.criminal-code.ca/criminal-code-of-canada-section-319-2-wilful-promotion-of-hatred/index.html https://www.criminal-code.ca/criminal-code-of-canada-section... This is what the guy was charged with violating (as per https://hamiltonpolice.on.ca/news/hamilton-police-charge-male-with-promoting-hate/ https://hamiltonpolice.on.ca/news/hamilton-police-charge-mal... ) Framing it as "Canada jails people for criticizing those of Islamic persuasion" is disingenuous, as if Canada specifically has laws about some specific religion or faith.

account42 3y ago
Without knowing what was actually said that the courts deemed to be promoting hatred, "Canada jails people for criticizing those of Islamic persuasion" is a valid interpretation. Citing vague laws doesn't make this any more reasonable.
- amatecha 3y ago
  IMO the worthwhile fact to share on an HN thread is "in Canada there are specific laws against inciting hatred through speech etc." and linking that criminal code entry, rather than mentioning and linking a specific news case that we have no real details on. At least the criminal code is a clearly-defined thing we can learn from and internalize, rather than a specific case where the public was not given enough information to make an informed judgement about (as per most news stories, IMO).
  - account42 3y ago
    Both are important really - the law and how it is interpreted by the courts. That we don't know the details of the case doesn't make it less concerning - on the contrary, media not reporting the relevant facts (in this case, what exactly was said/done) only makes this more concerning. Especially if the lack of reporting is due to fear of running foul of the same censorship laws.