6 ms·

That's a bit of a red herring because virtually everyone (including the courts) agrees there should be some limits to free speech: copyright, trademarks, fraud,

by tikhonj 14y ago

That's a bit of a red herring because virtually everyone (including the courts) agrees there should be some limits to free speech: copyright, trademarks, fraud, consumer protection, libel/slander, obscenity and more that I'm forgetting. So the real question (whether NSLs should be allowed) is quite a bit more nuanced. I don't think they should, but not really on the basis of free speech.

crusso 14y ago
While there are limits in the first amendment, its primary purpose is to allow individual citizens to speak out against the tyranny of government. So while you can quibble over yelling "fire" in a theater, silencing speech against prosecution from the government is diametrically opposed to the intent of the first amendment.
- misnome 14y ago
  > While there are limits in the first amendment, its primary purpose is to allow individual citizens to speak out against the tyranny of government. Then, I think someone forgot to tell the government that.
  - carbocation 14y ago
    Not sure if you're kidding, cynical, or serious. The entire framework of the US government's core documents and the non-legal documents written by the founders around the same time completely support the notion that these documents have purposes, chief among which is the defense of citizens from the government itself.
    - nightpool 14y ago
      Not the original poster, but I think his comment was meant to be interpreted as "Somebody should remind our current government of its original vision"
- AnIrishDuck 14y ago
  > you can quibble over yelling "fire" in a theater FYI, even this argument has been rejected for decades. Now, your speech must be likely to cause "imminent lawless action". [1] 1. http://en.wikipedia.org/wiki/Brandenburg_v._Ohio http://en.wikipedia.org/wiki/Brandenburg_v._Ohio
  - gamblor956 14y ago
    No, you're misunderstanding Brandenburg. Yelling fire in a crowded theater is not about causing lawless action; the people fleeing in panic are behaving lawfully. The act of yelling "fire" is outlawed because that panic can result in grave bodily harm to others, and is a foreseeable result of doing so. Brandenburg deals with inflammatory speech (usually hate speech but also includes seditious speech), which must rise to the level of incitement to be criminal, specifically meaning that you must incite others to actually hurt a third party or to actually take seditious actions against the government. Otherwise, the inflammatory speech is justy the expression of personal opinion, which is directly protected by the 1st Amendment.
    - yew 14y ago
      The 'fire in a crowded theatre' standard was a metaphor for opposing the draft originating in Schenck v United States. Neither Schenck nor Brandenburg (which is considered to relate to Schenck) relate to actually yelling the word 'fire' more than indirectly.
    - AnIrishDuck 14y ago
      I was (poorly) raging against the "fire in a crowded theater" metaphor, which gets trotted out too often [1]. I'm mildly interested in the actual hypothetical; out of curiosity can you cite caselaw that backs your claim (The act of yelling "fire" is outlawed because that panic can result in grave bodily harm to others, and is a foreseeable result of doing so)? 1. http://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ http://www.popehat.com/2012/09/19/three-generations-of-a-hac...
- foobarqux 14y ago
  http://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/ http://www.theatlantic.com/national/archive/2012/11/its-time...
  - flyinRyan 14y ago
    So, ironically, the "fire in a theater" phrase actually indicates the government can simply ignore their own laws any time they feel like it, as they did when the phrase was uttered.
bsimpson 14y ago
Article I Section VIII enumerates the powers of the federal government, and includes an intellectual property provision, as well as an interstate commerce one.
- dreamdu5t 14y ago
  ... which have been completely shit on by the criminals sitting on the Supreme Court. Interstate commerce has been applied to non-commercial private activities on personal property in numerous ways, for 70+ years. Please see Raich v. Gonzales and Wickard v. Filburn.
  - bsimpson 14y ago
    Interstate commerce is abused by all branches of the federal government, but the point is that laws regarding fraud or copyright don't abate our 1st Amendment rights to free speech.
  - gamblor956 14y ago
    One of the hallmarks of technology, and especially the internet, is that almost no actions an individual takes can be regarded as truly private anymore. Nowadays, doing anything in some way has an effect on interstate commerce in a way not contemplated by the Founding Fathers. Raich and Wickard are not unreasonable extensions of federal power--they simply reflect the fact that technology has changed the nature of commerce since the Constitution was drafted.
    - eurleif 14y ago
      The argument in Wickard is that growing wheat on your farm is interstate commerce because if you grow your own wheat, you won't buy someone else's wheat, which affects the interstate market for wheat. How does that depend on technological progress? Seems like it would apply as long as wheat were sold across state lines at all.
      - gamblor956 14y ago
ryguytilidie 14y ago
If they agree there should be some limits they should make an amendment to the constitution versus just pretending like the constitution doesn't exist.
wyager 14y ago
"because virtually everyone (including the courts) agrees there should be some limits to free speech" http://en.wikipedia.org/wiki/Argumentum_ad_populum http://en.wikipedia.org/wiki/Argumentum_ad_populum "Virtually everyone" is not qualified to make a constitution, and if by "the courts" you mean the SCOTUS, then the courts have a history of doing a lot of stupid things based on personal bias.

by tikhonj 14y ago

crusso 14y ago

While there are limits in the first amendment, its primary purpose is to allow individual citizens to speak out against the tyranny of government. So while you can quibble over yelling "fire" in a theater, silencing speech against prosecution from the government is diametrically opposed to the intent of the first amendment.

misnome 14y ago
> While there are limits in the first amendment, its primary purpose is to allow individual citizens to speak out against the tyranny of government. Then, I think someone forgot to tell the government that.
- carbocation 14y ago
  Not sure if you're kidding, cynical, or serious. The entire framework of the US government's core documents and the non-legal documents written by the founders around the same time completely support the notion that these documents have purposes, chief among which is the defense of citizens from the government itself.
  - nightpool 14y ago
    Not the original poster, but I think his comment was meant to be interpreted as "Somebody should remind our current government of its original vision"
AnIrishDuck 14y ago
> you can quibble over yelling "fire" in a theater FYI, even this argument has been rejected for decades. Now, your speech must be likely to cause "imminent lawless action". [1] 1. http://en.wikipedia.org/wiki/Brandenburg_v._Ohio http://en.wikipedia.org/wiki/Brandenburg_v._Ohio
- gamblor956 14y ago
  No, you're misunderstanding Brandenburg. Yelling fire in a crowded theater is not about causing lawless action; the people fleeing in panic are behaving lawfully. The act of yelling "fire" is outlawed because that panic can result in grave bodily harm to others, and is a foreseeable result of doing so. Brandenburg deals with inflammatory speech (usually hate speech but also includes seditious speech), which must rise to the level of incitement to be criminal, specifically meaning that you must incite others to actually hurt a third party or to actually take seditious actions against the government. Otherwise, the inflammatory speech is justy the expression of personal opinion, which is directly protected by the 1st Amendment.
  - yew 14y ago
    The 'fire in a crowded theatre' standard was a metaphor for opposing the draft originating in Schenck v United States. Neither Schenck nor Brandenburg (which is considered to relate to Schenck) relate to actually yelling the word 'fire' more than indirectly.
  - AnIrishDuck 14y ago
    I was (poorly) raging against the "fire in a crowded theater" metaphor, which gets trotted out too often [1]. I'm mildly interested in the actual hypothetical; out of curiosity can you cite caselaw that backs your claim (The act of yelling "fire" is outlawed because that panic can result in grave bodily harm to others, and is a foreseeable result of doing so)? 1. http://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ http://www.popehat.com/2012/09/19/three-generations-of-a-hac...
foobarqux 14y ago
http://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/ http://www.theatlantic.com/national/archive/2012/11/its-time...
- flyinRyan 14y ago
  So, ironically, the "fire in a theater" phrase actually indicates the government can simply ignore their own laws any time they feel like it, as they did when the phrase was uttered.

bsimpson 14y ago

Article I Section VIII enumerates the powers of the federal government, and includes an intellectual property provision, as well as an interstate commerce one.

dreamdu5t 14y ago
... which have been completely shit on by the criminals sitting on the Supreme Court. Interstate commerce has been applied to non-commercial private activities on personal property in numerous ways, for 70+ years. Please see Raich v. Gonzales and Wickard v. Filburn.
- bsimpson 14y ago
  Interstate commerce is abused by all branches of the federal government, but the point is that laws regarding fraud or copyright don't abate our 1st Amendment rights to free speech.
- gamblor956 14y ago
  One of the hallmarks of technology, and especially the internet, is that almost no actions an individual takes can be regarded as truly private anymore. Nowadays, doing anything in some way has an effect on interstate commerce in a way not contemplated by the Founding Fathers. Raich and Wickard are not unreasonable extensions of federal power--they simply reflect the fact that technology has changed the nature of commerce since the Constitution was drafted.
  - eurleif 14y ago
    The argument in Wickard is that growing wheat on your farm is interstate commerce because if you grow your own wheat, you won't buy someone else's wheat, which affects the interstate market for wheat. How does that depend on technological progress? Seems like it would apply as long as wheat were sold across state lines at all.
    - gamblor956 14y ago

ryguytilidie 14y ago

If they agree there should be some limits they should make an amendment to the constitution versus just pretending like the constitution doesn't exist.

wyager 14y ago

"because virtually everyone (including the courts) agrees there should be some limits to free speech" http://en.wikipedia.org/wiki/Argumentum_ad_populum http://en.wikipedia.org/wiki/Argumentum_ad_populum "Virtually everyone" is not qualified to make a constitution, and if by "the courts" you mean the SCOTUS, then the courts have a history of doing a lot of stupid things based on personal bias.