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> Though such clauses don’t technically violate the First Amendment Not technically, not in spirit, not in any way related to the 1st amendment. Have so few pe

by dwc 13y ago

> Though such clauses don’t technically violate the First Amendment Not technically, not in spirit, not in any way related to the 1st amendment. Have so few people actually bothered to learn even a little about the 1st amendment? You can read the entire first amendment several times and then ponder it a little in just a few minutes, because it's very short. In fact, I'll paste the entire text: 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. To boil it down even further for relevance: Congress shall make no law…abridging the freedom of speech, or of the press That's it. The contract and agreement to it have nothing to do with the first amendment.

jrockway 13y ago
If this were 100 years ago, you could make the argument that by enforcing this contract, Congress made a law abridging the freedom of the press. I think that ship has sailed and failed, however, so it's too late now. But it is interesting to think of how the Constitution can become meaningless if the government is willing to create laws to allow others to take away your Constitutional rights.
- darkarmani 13y ago
  > If this were 100 years ago, you could make the argument that by enforcing this contract, Congress made a law abridging the freedom of the press. That's crazy. The point of the right is that you have choice where a law takes away that choice. You can choose to sell your actions to other people for a limited set of legal actions. Why shouldn't Congress enforce contracts when BOTH parties are willing to sign? I hate the idea of this particular clause and find it very distasteful, but I don't think it should be illegal.
gottagetmac 13y ago
Learning "a little about the 1st amendment" and pondering it "a little in a few minutes" is a dangerous thing. From just looking at this text, for example, you would think that it only applied to Congress, when actually it also applies to the executive branch, the judicial branch, and states and local government (since the Fourteenth Amendment and the incorporation cases). I also think this narrow view has made you jump to a much stronger conclusion than is warranted. At least one scholar has considered whether the First Amendment could be interpreted to require that contracts of silence be unenforceable. http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Garfield-final.pdf http://www.lawschool.cornell.edu/research/cornell-law-review... In this case you happen to be mostly right, but don't assume you can understand the contours of First Amendment law just by looking at the text. There is a vast apparatus that has been built around the First Amendment, little of which is deducible from the constitutional text alone.
- dwc 13y ago
  Learning a little and pondering a little is far less dangerous than learning nothing. Learning how it's been interpreted over the years is better, of course. But a simple reading of the text would benefit many people and the public discourse. Once you have that, adding the interpretation that congress shouldn't make laws be extended to "the entire government shall not interfere with" isn't a big stretch. But whatever level of understanding one hopes to achieve, the place to start is with the text. And it's not just this article. See almost any discussion forum where moderation has come up and you'll find invocations of the first amendment. See Sarah Palin saying her first amendment rights were violated because she was criticized in the media (and the assenting opinions by far too many). On and on. These people, who make a very specific claim, have not even bothered to check the basis of it. They wouldn't need to learn too much of the finer nuances to realize their claims were invalid.
- spikels 13y ago
  It's pretty sad but you what you say is correct: We can no longer just read our laws in order to understand what they say. Instead we need to pay lawyers to tell us what they mean even when they appear to be very clear like the first amendment. And of course like your scholar they are free to make up there own interpretation at any time. If they can get enough of their colleagues to go along then that interpretation becomes the meaning. Maybe start with something reasonable like shouting fire in a theatre. But after two hundred years that meaning can drift pretty far. What was originally purely a constraint on the power of government can be transformed into a constraint on the rights of private citizens - the very people the bill of rights was meant to protect! Is there any wonder why the forth amendment has done so little to stop mass surveillance? Or individual health insurance mandates are constitutional because they could have been implemented as a tax? Or the commerce clause covers absolutely anything? Or words like "is" and "no" can simply be redefined as needed. Perhaps I am naive but I would like laws that most people can understand by reading them. Too bad the people interpreting and writing our laws have every incentive to continue to do exactly the opposite. Sorry for the rant!
  - gottagetmac 13y ago
    You're never going to have a useful legal system where the laws are simple enough for everyone to understand. Free speech is a complex idea. To put it in HN terms, suppose I were to say "It's pretty sad that we can no longer look at assembly code to understand what our computer programs will do. Instead we need to pay software engineers to tell us how they work even when it's doing something simple, like running a search engine."
ianferrel 13y ago
You can't sign a contract that sells you into slavery because of the 13th Amendment. Why can you sign a contract that limits your freedom of speech in spite of the 1st Amendment? Yes, I realize the law is complicated and there are many years of precedent distinguishing the two. But it's incorrect to argue that this isn't even in spirit related to the 1st Amendment.
- gottagetmac 13y ago
  Well, because the 13th Amendment by its terms governs private conduct. I agree, though, that there's a Shelly v. Kraemer type argument that could be made against the enforceability of contracts limiting freedom of speech in certain ways.
- dragonwriter 13y ago
  > You can't sign a contract that sells you into slavery because of the 13th Amendment. Because the 13th Amendment doesn't prevent Congress from making a law to make people slaves, it prohibits slavery from existing. In law, words make a difference. > Why can you sign a contract that limits your freedom of speech in spite of the 1st Amendment? Because restricting such a construct -- preventing you from trading speech or restraint of speech for some other good -- would violate the prohibition on government regulation of speech applied by the First Amendment.
  - ianferrel 13y ago
    Again, I realize that the amendments are worded differently. What I am claiming is that there's a reasonable argument that perhaps the principle behind the First Amendment should include the prevention of such contracts. Also, I will note that you point out that the specific words are important in your first point, but miss it your second. You mention that the First Amendment is about not allowing the government to regulate speech. But the actual text says that Congress is not allowed to "abridge" freedom of speech. Abridge means to limit, shorten, or cut off. Clearly, a law that invalidated contractual limits on speech would not in any way be abridging that speech.
greenyoda 13y ago
"Not technically, not in spirit, not in any way related to the 1st amendment." ... unless your employer is the federal government, or a state or city government (since the First Amendment applies also to the states[1]). [1] https://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29#Amendment_I https://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Right...

by dwc 13y ago

jrockway 13y ago

If this were 100 years ago, you could make the argument that by enforcing this contract, Congress made a law abridging the freedom of the press. I think that ship has sailed and failed, however, so it's too late now. But it is interesting to think of how the Constitution can become meaningless if the government is willing to create laws to allow others to take away your Constitutional rights.

darkarmani 13y ago
> If this were 100 years ago, you could make the argument that by enforcing this contract, Congress made a law abridging the freedom of the press. That's crazy. The point of the right is that you have choice where a law takes away that choice. You can choose to sell your actions to other people for a limited set of legal actions. Why shouldn't Congress enforce contracts when BOTH parties are willing to sign? I hate the idea of this particular clause and find it very distasteful, but I don't think it should be illegal.

gottagetmac 13y ago

Learning "a little about the 1st amendment" and pondering it "a little in a few minutes" is a dangerous thing. From just looking at this text, for example, you would think that it only applied to Congress, when actually it also applies to the executive branch, the judicial branch, and states and local government (since the Fourteenth Amendment and the incorporation cases). I also think this narrow view has made you jump to a much stronger conclusion than is warranted. At least one scholar has considered whether the First Amendment could be interpreted to require that contracts of silence be unenforceable. http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Garfield-final.pdf http://www.lawschool.cornell.edu/research/cornell-law-review... In this case you happen to be mostly right, but don't assume you can understand the contours of First Amendment law just by looking at the text. There is a vast apparatus that has been built around the First Amendment, little of which is deducible from the constitutional text alone.

dwc 13y ago
Learning a little and pondering a little is far less dangerous than learning nothing. Learning how it's been interpreted over the years is better, of course. But a simple reading of the text would benefit many people and the public discourse. Once you have that, adding the interpretation that congress shouldn't make laws be extended to "the entire government shall not interfere with" isn't a big stretch. But whatever level of understanding one hopes to achieve, the place to start is with the text. And it's not just this article. See almost any discussion forum where moderation has come up and you'll find invocations of the first amendment. See Sarah Palin saying her first amendment rights were violated because she was criticized in the media (and the assenting opinions by far too many). On and on. These people, who make a very specific claim, have not even bothered to check the basis of it. They wouldn't need to learn too much of the finer nuances to realize their claims were invalid.
spikels 13y ago
It's pretty sad but you what you say is correct: We can no longer just read our laws in order to understand what they say. Instead we need to pay lawyers to tell us what they mean even when they appear to be very clear like the first amendment. And of course like your scholar they are free to make up there own interpretation at any time. If they can get enough of their colleagues to go along then that interpretation becomes the meaning. Maybe start with something reasonable like shouting fire in a theatre. But after two hundred years that meaning can drift pretty far. What was originally purely a constraint on the power of government can be transformed into a constraint on the rights of private citizens - the very people the bill of rights was meant to protect! Is there any wonder why the forth amendment has done so little to stop mass surveillance? Or individual health insurance mandates are constitutional because they could have been implemented as a tax? Or the commerce clause covers absolutely anything? Or words like "is" and "no" can simply be redefined as needed. Perhaps I am naive but I would like laws that most people can understand by reading them. Too bad the people interpreting and writing our laws have every incentive to continue to do exactly the opposite. Sorry for the rant!
- gottagetmac 13y ago
  You're never going to have a useful legal system where the laws are simple enough for everyone to understand. Free speech is a complex idea. To put it in HN terms, suppose I were to say "It's pretty sad that we can no longer look at assembly code to understand what our computer programs will do. Instead we need to pay software engineers to tell us how they work even when it's doing something simple, like running a search engine."

ianferrel 13y ago

You can't sign a contract that sells you into slavery because of the 13th Amendment. Why can you sign a contract that limits your freedom of speech in spite of the 1st Amendment? Yes, I realize the law is complicated and there are many years of precedent distinguishing the two. But it's incorrect to argue that this isn't even in spirit related to the 1st Amendment.

gottagetmac 13y ago
Well, because the 13th Amendment by its terms governs private conduct. I agree, though, that there's a Shelly v. Kraemer type argument that could be made against the enforceability of contracts limiting freedom of speech in certain ways.
dragonwriter 13y ago
> You can't sign a contract that sells you into slavery because of the 13th Amendment. Because the 13th Amendment doesn't prevent Congress from making a law to make people slaves, it prohibits slavery from existing. In law, words make a difference. > Why can you sign a contract that limits your freedom of speech in spite of the 1st Amendment? Because restricting such a construct -- preventing you from trading speech or restraint of speech for some other good -- would violate the prohibition on government regulation of speech applied by the First Amendment.
- ianferrel 13y ago
  Again, I realize that the amendments are worded differently. What I am claiming is that there's a reasonable argument that perhaps the principle behind the First Amendment should include the prevention of such contracts. Also, I will note that you point out that the specific words are important in your first point, but miss it your second. You mention that the First Amendment is about not allowing the government to regulate speech. But the actual text says that Congress is not allowed to "abridge" freedom of speech. Abridge means to limit, shorten, or cut off. Clearly, a law that invalidated contractual limits on speech would not in any way be abridging that speech.

greenyoda 13y ago

"Not technically, not in spirit, not in any way related to the 1st amendment." ... unless your employer is the federal government, or a state or city government (since the First Amendment applies also to the states[1]). [1] https://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29#Amendment_I https://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Right...