How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies

American journalists and pundits rely upon vigorous free speech, but are not reliable supporters of it. They both instruct and reflect their fickle audience.

It's easy to spot overt calls for censorship from the commentariat. Those have become more common in the wake of both tumultuous events (like the violence questionably attributed to the "Innocence of Muslims" video, or Pamela Geller's "Draw Muhammad" contest) and mundane ones (like fraternity brothers recorded indulging in racist chants).

But it's harder to detect the subtle pro-censorship assumptions and rhetorical devices that permeate media coverage of free speech controversies. In discussing our First Amendment rights, the media routinely begs the question — it adopts stock phrases and concepts that presume that censorship is desirable or constitutional, and then tries to pass the result off as neutral analysis. This promotes civic ignorance and empowers deliberate censors.

Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.

When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?

Trope One: "Hate Speech"

Example: "hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it." CNN Anchor Chris Cuomo, on Twitter, February 6, 2015.
Example: "I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would." Edward Schumacher-Matos, NPR, February 6, 2015.

In the United States, "hate speech" is an argumentative rhetorical category, not a legal one.

"Hate speech" means many things to many Americans. There's no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no "hate speech" exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase "hate speech" had a recognized legal definition, it would still not carry legal consequences.

This is not a close or ambiguous question of law.

When the media frames a free speech story as an inquiry into whether something is "hate speech," it's asking a question of morals or taste poorly disguised as a question of law. It's the equivalent of asking "is this speech rude?"

Trope Two: "Like shouting fire in a crowded theater"

Example: " There is no freedom to shout 'fire' in a crowded theater." Prof. Thane Rosenbaum, Daily Beast, January 30, 2014.

Nearly 100 years ago Justice Oliver Wendell Holmes, Jr., voting to uphold the Espionage Act conviction of a man who wrote and circulated anti-draft pamphlets during World War I, said"[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

That flourish — now usually shortened to "shout fire in a crowded theater" — is the media's go-to trope to support the proposition that some speech is illegal. But it's empty rhetoric. I previously explained at length how Holmes said it in the context of the Supreme Court's strong wartime pro-censorship push and subsequently retreated from it. That history illustrates its insidious nature. Holmes cynically used the phrase as a rhetorical device to justify jailing people for anti-war advocacy, an activity that is now (and was soon thereafter) unquestionably protected by the First Amendment. It's an old tool, but still useful, versatile enough to be invoked as a generic argument for censorship whenever one is needed. But it's null-content, because all it says is some speech can be banned — which, as we'll see in the next trope, is not controversial. The phrase does not advance a discussion of which speech falls outside of the protection of the First Amendment.

Trope Three: "Not all speech is protected"

Example: "Not all speech is protected by the First Amendment." Ann Coulter, Townhall, August 2, 2001.

Example: “Not all speech is protected if there is hate speech and it is intended to ridicule another religion,” he said. “I don’t believe it is a free speech matter.” Archbishop Paul Coakley, quoted on FoxNews.com, August 8, 2014.

The media routinely prefaces free speech discussions with the bland and inarguable statement "not all speech is protected." That's true. In fact it's not in serious dispute. The problem is that the media routinely invokes this trope to imply that the proposed First Amendment exception it is about to discuss is plausible or constitutional because other exceptions already exist. Not so. Though First Amendment analysis can be complicated at the margins, the core exceptions to First Amendment protection are well-known and well-established. The Supreme Court — in the course of rejecting a proposed new exception — articulated them recently:

"From 1791 to the present," however, the First Amendment has "permitted restrictions upon the content of speech in a few limited areas," and has never "include[d] a freedom to disregard these traditional limitations." Id., at 382-383. These "historic and traditional categories long familiar to the bar," Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)–including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254-255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447-449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)–are "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942).

The observation "not all speech is protected" adds nothing to a discussion because it offers no mechanism for determining whether the speech at issue falls into a traditional exception or not.

To see what I mean, consider the utility of equivalent rhetoric. You've been bitten by an unfamiliar snake, and you'd like to know if you need treatment.

You: Doctor, was the snake that bit me poisonous?
Doctor: Actually snakes are usually venomous. Though some are both venomous and poisonous.
You: Great. What about this snake here? I caught it in a bag for you to look at.
Doctor: There are both harmless and venomous snakes in North America.
You: Yes, thank you. Which is this?
Doctor: That snake has rings!
You: Yes. Yes it does.
Doctor: Some venomous snakes have rings.
You: Is there anyone else on duty I could see?

Trope Four: "Line between free speech and [questioned expression]"

Example: "Texas Shooting Sheds Light On Murkiness Between Free, Hate Speech." NPR.com Headline, May 5, 2015.
Example: "Texas attack refocuses attention on fine line between free speech and hate speech." LA Times Headline, May 4, 2015.

Journalists and pundits talking about free speech disputes love to frame their stories as being about "the line between free speech and X," where X is the controversial expression in question.

This trope can be invoked accurately when there is a legally meaningful line separating protected speech and the type of speech called out. For instance, "the line between free speech and true threats" isn't misleading because "true threats" are an actual category of unprotected speech and there's a line between them and protected speech.

Too often, though, the "line" is invoked to imply a nonexistent legal distinction. The "line between free speech and hate speech" rhetoric from the examples above is misleading and meaningless because, as noted in Trope One, "hate speech" is not a legal thing. "The line between free speech and bullying" — another recently popular line — is another example. It implies, falsely, that there is a legally meaningful category of speech called "bullying" that lies outside of First Amendment protections. In fact there isn't — there are traditional exceptions to free speech (true threats, for instance) and some of that conduct could sometimes be described as "bullying," but that's not the same thing.

"The line between free speech and X" is often the rhetorical equivalent to "the line between vegetables and rutabagas": the author doesn't have a coherent argument that rutabagas aren't vegetables, but doesn't like rutabagas and thinks you shouldn't either.

Trope Five: "Balancing free speech and [social value]"

Example: "The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment." Washington Post, March 3, 2015.

The media's love of "balancing" stories is a variation on its love of "line between" stories, only more misleading.

"Balancing," when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don't weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn't, balancing of its "value" against other interests is almost always prohibited. As the Supreme Court recently said in rejecting the government's request to create new categories of unprotected speech through balancing:

The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178 (1803).

Courts occasionally engage in something that faintly resembles "balancing" when they apply different levels of scrutiny to speech restrictions. For instance, the Supreme Court said that Congress could prohibit the burning of draft cards because the government had a substantial interest in the draft system and the law was narrowly addressed to that legitimate interest, and aimed only at the non-communicative element of the conduct (destroying the card) and not the communicative aspect (doing so to protest the draft). But that analysis doesn't purport to assign a value to the speech. It considers only whether the government has a sufficiently compelling interest in its goal. Moreover, there's very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based — that is, premised on dislike of the speech — no matter how strong the government's interest. The Court has repeatedly rejected calls to do just that, and a focus on the content of disfavored speech (when it's not within an established exception) is almost certainly fatal to the proposed restriction.

Trope Six: "This isn't free speech, it's [category]"

Example: "It’s not free speech. It’s bullying and intimidation. It’s a horror show." Mary Elizabeth Williams, Salon, February 17, 2015.

The First Amendment is, in a way, categorical: there are well-defined categories of speech that are not protected, as I discussed above. But media commentators often abuse categorical thinking by inventing new categories of speech outside the First Amendment. "This isn't free speech, it's hate speech." "This isn't free speech, it's discrimination."

The trope can be used correctly — "this isn't free speech, it's an unprotected death threat." But usually it's not. Usually it's invoked as shorthand for "I don't want to address First Amendment analysis so I'm just going to say in conclusory fashion that it doesn't apply at all."

Our response to the trope should always be the same — does this supported not-speech category exist, and is it one that's actually outside the First Amendment?

Trope Seven: "Fighting words"

Example: "There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte." McClatchy.com, May 4, 2015.

No discussion of controversial speech is complete without some idiot suggesting that it may be "fighting words."

In 1942 the Supreme Court held that the government could prohibit "fighting words" — "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." The Supreme Court has been retreating from that pronouncement ever since. If the "fighting words" doctrine survives — that's in serious doubt — it's limited to face-to-face insults likely to provoke a reasonable person to violent retaliation. The Supreme Court has rejected every opportunity to use the doctrine to support restrictions on speech. The "which by their very utterance inflict injury" language the Supreme Court dropped in passing finds no support whatsoever in modern law — the only remaining focus is on whether the speech will provoke immediate face-to-face violence.

That's almost always irrelevant to the sort of speech at issue when the media invokes the trope.

Trope Eight: "[Professor] explained . . . ."

Example: "The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said."

The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.

Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts.

Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.

Trope Nine: "This speech may be protected for now, but the law is always changing."

Example: "'The way we interpret the constitution is always changing. The supreme court can change the rules, and does do so,' he said." The Guardian, quoting Eric Posner, May 6, 2015.

When existing American law clearly protects questioned speech, the media sometimes resorts to finding someone to say "the law can change, and maybe it should."

Yes, American law can change. Constitutional interpretation can change in breathtaking ways inside a generation.

But the United States Supreme Court has been more consistently protective of free speech than of any other right, especially in the face of media sensibilities about "harmful" words. Fred Phelps and the Westboro Baptist Church are universally reviled and held up as an example of the worst sort of speech; the Court found their speech protected by a margin of 8-1. The Court struck down an overbroad law prohibiting "crush videos" of animals being killed by the same margin. There is no sign of any movement towards the proposition that speech may be restricted because it is hurtful or disfavored — the sort of speech that provokes this banal media observation that law changes.

Pointers to more tropes are always welcomed, as are particularly good examples.

Last 5 posts by Ken White

Comments

  1. Chris says

    "Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts."

    Professor Szmer commands you to snort his untainted exposure to actual courts.

  2. Vorkon says

    My only complaint with this post is that, on occasion, tropes 4 and 5 aren't attempting to refer to any legal distinction between things at all, and are simply talking about when the author feels it is right to impose social consequences on the speech they are balancing or drawing a line with. Admittedly, much of the time it's a distractor intended to disguise a call for censorship, (the motte to censorship's bailey, if you prefer) but every now and then someone who uses those tropes is arguing in good faith.

  3. Simon Spero says

    I mistakenly thought that Wisconsin v. Mitchell used the phrase "Hate Speech" (the epithet used was bigoted).

    This was the case that allowed for bigoted speech to be used as evidence for sentence enhancements for "hate crimes" where the victim was selected based on race, sex, etc.

    This doesn't buy the trope 1 invokers much-

    "There's a fine line between speech that a reasonable fact finder could use to find that the defendants selected their victims on the basis of race, and speech that could not support such a finding".

  4. says

    Right. But as SCOTUS said, violence is not protected by the First Amendment. Hate crime laws are not terribly different than any motive-targeting laws.

  5. J.R. says

    Thanks Ken, recommending this to a libertarian friend.

    I rather fear that the anti-free speech drift will play into the hands of or be encouraged by the totalitarian police-state fans. America is headed for a dismal, ugly future should these trends continue…

  6. says

    I imagine a lot of media people work in corporations that have harassment policies that limit what they can say to their coworkers: Not too much of the sexy talk, for example, and I'd guess that drawing pictures of Mohammed and leaving them at the desk of a Muslim employee might be frowned upon. This kind of speach can be the basis for all kinds of legal trouble, yet it doesn't seem to fit the exceptions you list, and restrictions of this kind are accepted by the courts. Media people know the government can prohibit saying awful things to coworkers, so why can't it prohibit saying awful things to everyone? I realize there's a world of difference in the type of laws being applied, but is there some way to explain the principle?

  7. David M. Nieporent says

    Related to Trope Three is the "No right is absolute" cliche. (Often invoked alongside the Holmes quote.)

  8. Kiwanda says

    It seems as though there is another category of unprotected speech: that contributing to a Hostile Work Environment. The sanctions are indirect: the government punishes the company that fails to punish (or at least stop) the worker who is judged to be contributing. At some point, this is speech "integral to criminal conduct", but I think Hostile Work Environment is a civil issue. IANAL.

  9. says

    I'm going to be awkward and point out what seems to me to be an odd contradiction in the state of the law as described:

    "Moreover, there's very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based — that is, premised on dislike of the speech — no matter how strong the government's interest."

    vs.

    "[…] the First Amendment has permitted restrictions […] historic and traditional categories […] including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), "

    To quote Wikipedia: "An obscenity is any statement or act that strongly offends the prevalent morality of the time".

    What is the legal definition of obscenity in the US? Is it somehow defined, and the exception justified, in a way that doesn't boil down to "because we don't like it"? Or is this just a historical anomaly?

  10. says

    Harry, that section would be clearer if I changed it to say "a new type of speech restriction" — outside the historic categories.

  11. Robert What? says

    Another trope, actually used by some judges, although granted usually not in relation to the First Amendment, is "There is no absolute right to …".

  12. Yagwil says

    AddictionMyth, in a couple of my previous jobs I have heard "illegal" used in the job orientation videos to describe company rules. I don't know where this usage came from or how common it is, but I wonder if that's what is happening here. It's definitely confusing.

  13. Eli G says

    One of the other dangers associated with trope 8, journalists, particularly of the "journalist" pundit variety rarely catch the nuances of an issue being explained by someone who is an expert in a particular field, they [the journo-pundits] deploy overused, simplistic catch phrases and often misunderstand & misreport through sheer ignorance or deliberate twisting to suit their story. They leave it to the reader, or listener, to seek out more information about that expert to identify their actual experience, background, and potential biases, as evidenced through publications and other associations. There are few of us [the public] that go that extra step.

    However, my initial intent in commenting was to thank you for this piece, great information for someone who is still learning the nuances of this particular topic, my brain is temporarily full and happy and now has some information that will point to other readings. A bit like a cat lolling in catnip at the moment before being driven to seek more.

  14. King Squirrel says

    The following tropes very often end up in free speech discussions/journalism. They are more generally applied as well though, so maybe not the best choices.

    "In my country, free speech is (or is not)…"

    "We live in dangerous times…."

    "We don't need to know everything…" — usually applied to speech in journalism.

    And of course the classic,

    WON"T SOMEBODY THINK OF THE CHIIIILLLDREEENNN!!!!!!!

  15. GreenW says

    Where do the restrictions on leaking insider information that would materially impact the markets fit into this? I guess that is 'speech integral to criminal conduct'? If so, you "just" make a law outlawing certain behaviors, e.g., discriminating against an identifiable group or minority, and then you lose the 1st amendment protection covering expressing views about that group too?

  16. Ryan says

    many sports are rather violent, or may cause injury

    but then again, baseball is immune to the commerce clause so ~~~~

  17. Sporaderic says

    About the only thing that could make this page/post cooler would be if the item headings were wrapped in anchors so that specific tropes could be linked to directly (sorta like a bookmarked "Your logical fallacy is…"). I can't count how many times I've had to send people to the "three-generations-of-a-hackneyed-apologia" post over the past five months, and this page just streamlines everything. Way groovy.

  18. Malc says

    @Windypundit: if you work for a corporation, the corporation is perfectly free to impose all sorts of restrictions on your acts, inacts, and speech as a condition of your continued employment. The deal between you and the company has nothing to do with the First Amendment, because of the first word of the Amendment… Mind you, if you work for the US Government, there's an interesting philosophical question, but not a practical one.

  19. En Passant says

    A less common trope that sometimes comes up in heated debate about free speech: The Constitution is not a suicide pact.

    It's arguably a variant on Trope 5, "balancing" free speech versus [insert parade of horrible imagined free speech consequences here].

    The trope goes back to Lincoln, but Lincoln's use was not about free speech, but about his suspension of habeas corpus.

    In the free speech context, it arose in Jackson's dissent in Terminiello v. City of Chicago, 337 U.S. 1 (1949):

    This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

    It's an ugly mark on Jackson's sometimes creditworthy First Amendment record. Recall Jackon's "If there is any fixed star in our constitutional constellation, …" early majority opinion in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)

    But there it is. Jackson feared that Terminiello's speech would lead to chaos, riots, and the usual stuff. Terminiello was unquestionably a fascist and racist rabble rouser along the lines of Father Coughlin. Luckily the majority agreed with Douglas.

  20. says

    I think the MSM is in favor of censorship as part of their last gasp holding on to their roles as gatekeepers. Todays leftist media sees government as an ally instead of an adversary and trusts the perpetual leftist government (no matter what party is in office) will do their bidding and censor that which the MSM does not wish to get out.

  21. PersonFromPorlock says

    I like to point out (especially to journalists) that the Court's decision in Heller, finding that the licensing of a constitutionally-guaranteed right prior to its being exercised is constitutional, paved the way for journalism licenses and the revocation of those licenses for 'cause'.

  22. says

    Is there perhaps a better example for Trope 6?

    "Intimidation" is a defined crime in many states, making the statement "This isn't Free Speech, it's intimidation" one of the acceptable examples of the trope, since speech integral to criminal conduct is one of the actual legal exceptions to the First Amendment.

    Granted, the example muddies the water a bit with a reference to bullying – which usually isn't a defined crime – but surely it's common enough that there are clearer examples available.

  23. Simon Spero says

    Absolutely right on Wisconsin v. Mitchell 508 U.S. 476 (1993), which draws a fine line over what legal effect "hate speech" can have under the first amendment, and by fine line I mean neck-high mono-filament. Cogitatione et verbo v. opere…
    Mitchell's speech was probably also unprotected under Brandenburg, but that wasn't relevant to the decision.
    I would like to believe nobody sane used the incident to call for a ban on Mississippi Burning.

    Snyder v. Phelps is not a perfect example of trope nine, despite the 8-1 decision. If the petitioner had included "The Epic" in their cert. petition, it's possible that the result might have been different (though there would still have been eight votes ruling the the funeral picketing was protected).
    Footnote 1, plus Robert's statement at the end of his opinion that "[o]n the facts before us, we cannot […] [punish] the speaker" are suggestive.
    Intentional Infliction of Emotional Distress has not finished evolving (I say that as someone who often changed at Leytonstone for the Woodford branch).
    "The Epic" was written after the funeral and addressed to the Snyders, but was not directly transmitted to them; it was discovered by Synder whilst googling his son's name.
    Alito's dissent is not convincing, since he would have held the picketing to be unprotected, but there are some interesting points where he discusses "The Epic" which another justice might have developed more clearly (especially if the issue had been properly briefed).

  24. says

    On the Title VII question, if speech is part and parcel of organizing forbidden discrimination ("Nobody in our neighborhood association should sell their home to [members of protected group]"), then that speech can be the subject of government sanction. If the speech is more diffuse ("Nobody in America should be forced to sell their home to [members of protected group]"), then that speech cannot be the subject of government sanction.

    There really are some fine distinctions in free speech, but they are at the margins and they are NOT the ones that the media usually trots out. Ken is right.

  25. Nete Peedham says

    I believe that censorship and moderating of comment threads should be illegal. That said, I also believe that one should defend one's comments. Libel and slander are illegal, yet one could say, 'but, but, but, it's free speech!'

    Hate speech that I have seen IS libel or slander in the huge majority of cases. The trouble with libel and slander laws are that they are expensive to prosecute or defend, resulting in the wealthy imposing SLAPP suits. Great Britain is the brown standard in the application of libel and slander laws…as in $hit brown.

  26. LTMG says

    This post deserves to be widely printed. If any of us encounter those who would dilute free speech rights in the US, it would be very convenient to have this post to use as a pin for popping balloons.

  27. barry says

    The First Amendment itself reflects a judgment by the American people…

    That's one of those reflective-time-reversal tropes.

  28. cpast says

    Out of curiosity, what exception *does* falsely shouting fire in a crowded theater fall under? I assume that you can be prosecuted if you stand up in an actual crowded theater and shout "Fire!" when you know there's no fire, and someone's hurt in the resulting panic; what's the exception that makes the speech unprotected?

  29. albert says

    @docweasel,
    You've got that backward; the MSM is totally and effectively controlled by the gov't/corporate elite. The MSM is not 'leftist', any more than the gov't is. There is absolutely no difference between Democrat and Republican policies. It's a stage show for gullible Americans. For an example of real 'leftist' media, see CounterPunch.org
    .

  30. MikeK says

    Ken, thanks for this. I love and appreciate what you do here. Do "true threats" fall under the "speech integral to criminal conduct" category listed under Trope Three, or is that another category that isn't listed? Are "fighting words" a class of incitement? Also, I understand some of the issues and history around Trope Two (I think), is falsely shouting fire in a theater and causing a panic actually protected speech?

  31. Richard says

    @cpast:
    If the options for unprotected speech are obscenity, defamation, fraud, inciting imminent lawless action, and speech integral to criminal conduct, I'd have to say falsely crying "FIRE" in a crowded theatre would probably be considered fraud.

    @Ken:
    How about this for a trope:
    "You have to surrender some liberties in exchange for order/protection/security."
    Example:

    You can't enjoy your civil liberties if you're in a coffin.

    Chris Christie

    I think this would also cover the "heckler's veto" that you've covered on your site previously. Or would that be a separate trope?

  32. says

    @cpast Falsely shouting fire in a crowded theater would probably be punishable under an incitement exception. It would likely cause imminent lawless action by causing panic, and it would almost certainly be intended to do so. For some background discussion of incitement, one of the famous cases (mentioned briefly in this blog post) is Brandenburg v Ohio

    Brandenburg recognized and discussed an exception to the first amendment, namely that the government may ban inciting imminent lawless action, in the process of striking down a law that went to far and tried to criminalize mere advocacy of violence.

  33. Cati says

    Where does the "non-government orgs/ businesses etc. are not required to provide a platform for everyone" argument fall? (in relation to the comment above and censoring of comments).

    It's one I've seen free-speech advocates fall down on sometimes on the Internet, when arguing against actual censorship of comments on a particular subject, as opposed to being moderated for being against the posting rules of a site (e.g. use of obscene language, making threats, bad mouthing employees of the site)

  34. cpast says

    @Cati
    That argument doesn't fail. Non-governmental bodies are not required to provide a platform for everyone, and non-governmental websites can remove comments for whatever reason they feel like. Comment censoring by private entities because they say something the site owners don't want said is perfectly legal, and "free speech" arguments against that are going by a general principle that sites *should* allow people to post uncensored (there is absolutely no legal backing for their arguments).

  35. Mitch says

    @cpast is correct. In fact, there is a First Amendment right for a private publisher to edit as that publisher sees fit (subject to libel/slander and copyright limitations for changing text in the comment). However, under CDA Section 230, once a thread is moderated, there is a possibility that the publisher will lose immunity for slander/libel/copyright infringement.

  36. nyccine says

    @Cati
    "…"free speech" arguments against that are going by a general principle that sites *should* allow people to post uncensored (there is absolutely no legal backing for their arguments)."

    Why would there need to be legal backing? "Freedom of speech" is not a legal concept, it's a philosophical one, and predates the 1st Amendment by at least two thousand years, if not more. Out of all the changes in American politics, the redefinition of "freedom of speech" to mean "what the 1st Amendment prohibits, and not one iota more" may be the most frightening; while the government imprisoning me for what I say is dangerous, a public that feels it can, and should, take any steps to silence me, short of convincing a legislature to ban my speech, will accomplish much the same (and, in all likelihood, will eventually decide the restrictions on government action need to be done away with anyway.)

  37. Cabbage says

    A curious Brit here. I'd enjoy a comment or post from you exploring both the significance of the "speech integral to criminal conduct" rule and – like Kiwanda – where workplace harassment laws fit into all of this.

    What exactly falls under the "speech integral to criminal conduct" exception? Is it limited to conspiring to commit a non-speech-related crime, or is it broader than that? Presumably the government can't create a crime of "hurting someone's feels" and then prosecute you for speech that hurt someone's feels and was therefore integral to criminal conduct, but where is the line and have there been any interesting controversies over what the exception permitted in the past?

    And how about harassment? You've broadly expressed approval of workplace harassment laws in posts like this, this, and this, but I'm not sure how that's consistent with your take on other speech-restricting laws, given the sort of things the government says are actionable. Indeed, I'm not even really sure how most of this stuff fails to be a first amendment violation. Why is it right for the government to limit speech in the workplace that causes offence, but wrong for it to do so on the campus? Why should it be the case that I have the right to crack offensive jokes and engage in laddish banter in the company of my friends when we're students, only to have the government remove that right when we enter the workplace? Why should I not be as free to voice my beliefs and express myself in the ways I feel comfortable in the workplace as I am in the street, if my employer is willing to let me?

    You note that many people are super-touchy about the whole topic of workplace harassment, and sexual harassment in particular. You say you don't know why. I can answer for myself: my colleagues are, and have been at every job I've worked, my main friends and the people with whom I spend most of my life – either during work, or after work at the pub. We enjoy each others' company, we make outrageous jokes that would offend many people, we swear at each other and call each other idiots when we fuck things up, we argue over politics (including sensitive issues surrounding gender, sexuality and race), and many of us are odd or socially inept in some way. Sometimes this causes real offence; I recently started drunkenly trying to persuade the CEO's girlfriend that consensual incest between adults should be legal while she gaped at me in disgust and horror. ("It's a good thing you're good at your job", he told me later while laughing.) And there's sexual banter, too; at a previous job at a startup run out of my boss's garage, a new hire came back with a girl after a drunken office night out and they shagged so hard on the boss's bed that they snapped it in half. You can bet that tale rapidly became a recurring topic of conversation.

    I apologise for none of this, because these people are my friends. If the company wanted to crack down on the things I say around my colleagues, I would resent it, and it would push me at least somewhat towards looking for work elsewhere. When the government wants to do so, that looks very much like a restriction on what views working adults can express and how they can socialise in the company of the people with whom they spend most of their lives, who likely include some of their best friends.

    I'm lucky enough to have colleagues who I get on with and amongst whom the behaviours that I'm comfortable with are welcome, and also lucky enough to live in a country where nobody gives a shit about workplace harassment. (Perhaps we have similar laws to the US, but I've never heard of them if so.) But I resent the very idea that if somebody who was uncomfortable with the way my colleagues and I socialize joined our team, and the government deemed their preferences to be 'reasonable', then the government should have the right to demand that my friends and I socialize differently. It confuses the heck out of me to see someone libertarian-leaning recount advising employees to avoid effusively complimenting their colleagues for being pretty, telling rude jokes to their friends if someone sensitive might be in earshot, or engaging in crude sexual banter with people they know in order to stay with the law, without any discussion of the free speech issues involved.

    What exactly are the limits on these workplace speech restrictions, why are they not First Amendment violations, and why do you tolerate them when you so fiercely oppose their analogues on university campuses and everywhere else outside the workplace?

    (Please forgive the lengthy and slightly tangential post.)

  38. merzbot says

    @nyccine

    I guess that's a reasonable concern in full generality. But in practice, the only kind of speech that is met with severe social consequences is blatant bigotry. I'm okay with that, myself.

  39. nk says

    cpast
    May 20, 2015 at 9:52 am

    Out of curiosity, what exception *does* falsely shouting fire in a crowded theater fall under?

    The exception is "The First Amendment is not absolute". Applying that, time, place and manner may be regulated more strictly than content. For example, it's also illegal to shout "movie" in a crowded firehouse. Not only don't the firefighters need the distraction from some comedian, they also work 48 to 72 hours shifts and many of them will be sleeping. Do it in your own home, backyard, beach or public park, buddy.

  40. nk says

    PS. Yes, the Supreme Court, particularly the Progressives, made it up as they went along in the middle part of the 20th century. First Amendment jurisprudence, like the death penalty (and I would say homosexuality too these days), is an outlier. It does not follow the traditional rules of Anglo Saxon/American jurisprudence.

  41. cpast says

    @nk
    The whole point of the blog post is "the First Amendment is not absolute" doesn't cut it as an argument (you need a specific exception for something to be unprotected). Time, place, and manner restrictions are allowed to some degree, but it's hard to argue that punishing falsely shouting "fire" in a crowded theater is one of those, because the government would *not* prosecute someone who stood up and shouted "This is a terrible movie!" (the theater might kick them out, but they wouldn't face criminal prosecution).

    @nyccine
    This post happens to be about the law around free speech. For instance, it actually explicitly says that an issue with quoting law professors is that they sometimes talk about what they want the law to be. Given the actual contents of the blog post, it's not actually unreasonable to approach "why does this argument fail" from a legal standpoint.

  42. nk says

    There really is no heuristic. You need to know the precedents. Such as "clear and present danger", "compelling governmental interest", "Hare Krishnas annoy the Justices at Dulles Airport", stuff like that. Like I said, the Progressives on the Supreme Court took "Congress shall make no law … abridging the freedom of speech, or of the press" as a license to become a permanent Constitutional Convention.

  43. Steve Skubinna says

    You're over thinking this. We don't need to recognize the tropes, save as an intellectual exercise. When the media begins lecturing us on the legalities of free speech, we should just remember the wise words of a prominent American attorney:

    "Everything that guy just said is bullshit."

  44. SDN says

    Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it.

    When the "social sanctions" are backed up by lawfare via EEOC complaint, "hostile environment" lawsuits, and "prosecutorial discretion" on a world of other pettifogging laws and regulations that can be enforced ONLY against those whose speech is disagreed with, "ugly" speech becomes a legal category of censorship in every case. There is nothing under such a legal system that doesn't raise First Amendment questions.

  45. says

    The "balancing" business is particularly pernicious, inasmuch as rights are supposed to be absolute. The whole idea got started with the equally ridiculous notion of a "compelling government interest." Government, an agent rather than a principal, cannot have interests of any sort. Moreover, a "right" that can be suspended by the State for some reason is merely a permission, conditionally granted and therefore impermanent. Thomas Jefferson would have wept.

  46. Bored Lawyer says

    What exactly are the limits on these workplace speech restrictions, why are they not First Amendment violations, and why do you tolerate them when you so fiercely oppose their analogues on university campuses and everywhere else outside the workplace?

    First of all, American law distinguishes between government and private actors. Strictly speaking, the First Amendment only restricts government actors. That includes not only laws and executive actions, but has also been held to include public universities.

    On the private side, one is always legally free to restrict anything you want. Parents do that all the time – they tell their children not to swear or act disrespectfully, for example.

    Nevertheless, there is a strong American tradition (not legally required) of toleration of multiple viewpoints and vigorous public debate. There are limits – if you are a Nazi or the member of the KKK, you still have a First Amendment right to, for example, conduct a march. But everyone else is free to revile you and your ideas, and most people would.

    Still, this tradition varies in time and place. Not every situation lends itself to completely open speech. To take a mundane example, most employers don’t want their employees spending all day talking – they are there to do their work. An employee that spent all day talking about their political views would be fired for wasting time, and any “censorship” arguments would fall flat.

    On the other hand, universities, even private ones, have a strong tradition of robust open debate, and toleration of even oddball and offensive views. Of late, however, universities have tried to squelch this, mostly in the name of “diversity” and “tolerance,” which is rather Orwellian. That is why this is so strongly condemned – because the whole point of a university is open intellectual inquiry, while the whole point of a workplace is doing the work.

  47. David Gillies says

    Point of order: there aren't any poisonous snakes.

    This is an excellent resource. It merits adaptation to flash cards, perhaps a downloadable PDF.

  48. markm says

    "falsely shouting fire in a theatre and causing a panic" was a false analogy even for the case where Holmes wrote it. It implies two elements, neither of which were present in Schenck v. United States:

    1. Falsity: Schenck's pamphlets may well have contained false statements of fact, but that wasn't an element of the alleged crime under the law. It punished any utterances that interfered with the war effort, including opinions and true statements of fact.

    2. Immediate incitement: Schenck mailed the pamphlets to potential draftees.

  49. Mercury says

    @Ken

    "Hate crime laws are not terribly different than any motive-targeting laws."
    ———————————————————
    Perhaps you can point to where you have addressed this before in more detail.

    Hate crime law certainly seems to be a specie of thought crime, a Pandora's Box of liberty destroying excuses and not unrelated at all to the sudden explosion of agitation against "hate speech".

    Since you can't actually read someone's thoughts the qualifying factor(s) for elevating an alleged crime to the new category of hate crime is usually (always?) based on what the perp in question said or wrote…aka speech (absent some larger, organized program directed at the victim(s) in question).

    I can sympathize somewhat with a sort of reasoning that may be behind these tropes and I'm not sure that some of them are all that wide of the mark: hate crimes are now real, hate crime legislation has apparently passed constitutional muster, hate crimes are typically determined by speech, therefore some speech must be tantamount to "hate speech" and by extension, illegal and their prohibition must be constitutionally sound.

    Prohibitions against "hate speech" may not be in the constitution but they are indirectly in laws that are presumably constitutionally sound ("hate speech" can super charge relatively plain crimes into more serious crimes).

  50. Simon Spero says

    @Mercury:

    Hate crime law certainly seems to be a specie of thought crime, a Pandora's Box of liberty destroying excuses and not unrelated at all to the sudden explosion of agitation against "hate speech".

    See Wisconsin v. Mitchell, supra for the details; there are many crimes where motive can be an aggravating factor in sentencing (some of which can literally be the difference between life and death).

  51. says

    @Mercury

    No, hate crimes are not a "thought crime". What was so chilling about 1984's thought crimes is that they truly targeted private thoughts given only the subtlest of expression, and the expression was required only because they didn't have true mind reading even in that dystopian vision.

    Hate crimes in the real world require some actual underlying crime and then adjust the sentence based on motive. This is similar to the fact that we view a killing differently if it was accidental, done intentionally but spontaneously, or pre-plotted. Yes, this generally involves looking at the criminals speech (defined broadly) but that speech is evidence of a specific motived tied to an underlying crime. The punishment is not for the speech itself.

  52. joshuaism says

    @Harry Johnston

    What is the legal definition of obscenity in the US? Is it somehow defined, and the exception justified, in a way that doesn't boil down to "because we don't like it"? Or is this just a historical anomaly?

    The legal definition currently in use is the Miller Test. To find if something is obscene then it must:
    1. As a whole appeal to the prurient interest
    2. Describe sex or bodily excretions in an offensive way
    3. Lack any significant literary, artistic, political, or scientific value (SLAPS).

    In a way it boils down to "because we don't like it", but the SLAPS portion provides a fig leaf of legal protection for the accused.

  53. says

    I just posted up a series of thoughts on hate and "hate speech" at my blog. Part 3 in particular covers the "speech" aspect of "hate speech".

    What's interesting to me is how quickly the talking heads would shut down the very mechanism that counters "hate speech" — that is, the free market of ideas — in an effort to "protect" us from "hate speech". Yes, some ideas are bad. Some speech is upsetting or offensive. The solution is not to censor the bad ideas and offensive speech, but to allow more speech to counter or argue down the bad or offensive bits.

  54. says

    Out of curiosity, what exception *does* falsely shouting fire in a crowded theater fall under?

    @cpast It's an interesting question. Probably worthy of a blog post of its own.

    The state could forbid some manner and means of speech that covered falsely shouting fire in a crowded theater ("It is a felony to shout in a crowded theater in a manner that a reasonable person would know is likely to cause a panic"); such a restriction would be subject to intermediate scrutiny.

    But if the state specifically forbade falsely shouting fire in a crowded theater, that would be a content-based restriction on speech, and would be presumptively invalid and subject to strict scrutiny. The Supreme Court's recent cases dealing with penal content-based restrictions on speech have taken a categorical approach, and "falsely shouting fire in a crowded theater" falls into no recognized category of historically unprotected speech.

    Whoever said "fraud" is wrong—fraud requires an intent to deprive someone of property or to gain.

    Whoever said "incitement" is also wrong—incitement requires the intent that a (non-speech) crime be committed.

  55. SDN says

    "incitement requires the intent that a (non-speech) crime be committed."

    You left out the last element, which is that of the time between speech and action; within the next 2-3 hours makes the grade, within the 2-3 days or longer does not, because the listener has had time to recover from the spell.

  56. Jerry Leichter says

    @Bored Lawyer: You haven't really addressed the points Cabbage made. If the limits on speech in the workplace are entirely the result of decisions of private employers, you analysis is fine: Employers are free to regulate their places of work as they see fit.

    But that's not where employment law is today. Were that all, an owner of a business would be free to say offensive things to and around his employees – after all, it's his business and he gets to set the rules. But any owner who tried that would be subject to complaints and lawsuits by offended employees, and punitive actions by the EEOC or similar government organizations.

    Indeed, as Cabbage points out, on a college campus, say, we tell people "Sorry you're offended, but free speech is a greater value than your hurt feelings". We say the same in public: The Nazi marchers may be completely offensive to you, but they have a right their say. Even my peace in my own home may be disturbed by picketers chanting in ways I find offensive.

    And yet at a place of employment, we say the opposite: "It doesn't matter what you want to say. If it causes offense as perceived by the listener (for certain broad ranges of subjects), then your employer will be sanctioned for not stopping you from saying them (which while, in some abstract sense, doesn't restrict you … well, the actual real world outcome is rather obvious)."

    Now, personally, I find most of the speech that gets banned under these regulations to be inappropriate for a work environment anyway. But that's quite separate from the question of how institutions of both the executive and judicial branches of the government have come to have the right to punish based – let's be clear – strictly on the content of this speech – and through regulations and rulings that are inherently prior restraint on this speech.)

    — Jerry

  57. Mike says

    In Ohio we have:

    2917.31 Inducing panic.
    (A) No person shall cause the evacuation of any public place, or otherwise cause serious public inconvenience or alarm, by doing any of the following:

    (1) Initiating or circulating a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that such report or warning is false;

    (2) Threatening to commit any offense of violence;

    (3) Committing any offense, with reckless disregard of the likelihood that its commission will cause serious public inconvenience or alarm.

  58. Fredo says

    I used to work security for a Major League Baseball team. We had "family friendly" rules,which meant that we could eject anyone using foul language (generally, the 7 Dirty Words), racial slurs, threats, etc. Invariably, the person that we were tossing would invoke his 1st Amendment rights. Our response was that he was on private property (despite the taxpayers having paid for most of the construction) and we were not arresting him, we were making him leave because he violated the house rules. Sometimes that mollified the person, depending on their level of intoxication; most times we were called Nazis.

  59. dee nile says

    on a college campus, say, we tell people "Sorry you're offended, but free speech is a greater value than your hurt feelings".

    Are you looking forward to your 50th class reunion, Mr. Leichter?

    (I assume from your quoted statement that's how long it's been since you were on campus.)

  60. Jerry Leichter says

    @dee nile: Not quite the 50th, but you've misread my statement. "We" is a reference to "proponents of free speech", not to all too many of the denizens of today's institutions of higher learning. As a regular reader of Popehat, and the father of a college student, I'm quite aware of the current atmosphere.

    One of the things I had not previously focused on is the way the past 2-3 decades of employment law have set the stage for today's assaults on free speech. Isn't the whole notion of "providing a safe environment [by eliminating offensive speech]" drawing from exactly the same well as the theory of a "hostile work environment"? The employment law standard that what matters is how whoever was offended understood a comment, not how the comment was meant, is using the same ideas as the current academic notions of "triggering".

    When I started in the workplace, I had a manager who was a great guy – very supportive of everyone, just generally a decent person. But in keeping with the mores of the day, he had a bent for metaphors based on rape. Very funny at the time; we'd probably consider it highly offensive today. That was in an organization that was, by the day's standards, extremely accepting of women, racial minorities, and so on. As a father of two daughters, I'm glad that they will live in academic and work environments much less biased than the one I grew up in. In general, most of the changes have been for the better.

    But … that doesn't change the fact that in some cases, the changes have brought with them other changes that are not at all positive. We've decided that "freedom from offense" is a value more important than "freedom of speech" in the workplace (to some degree, with respect to certain kinds of offense, and with some ambiguous, from-the-side but definitely present, government involvement). Should we be surprised that the same ideas are leaking into other venues?

    I'd really be interested in understanding how a legal line has been drawn that says it's OK for government agencies to penalize private businesses for not suppressing certain forms of what would appear to be protected speech.
    — Jerry

  61. says

    @Mark W. Bennett

    Could expand on why incitement would not be a proper category of unprotected speech to stop the First Amendment from preventing the government from criminalizing shouting fire in a crowded theater? Depending on the final result of that shout, the actual crime charged could potentially be some degree of murder. People have died from the panic in attempts to flee buildings either on fire or falsely believed to be on fire many times in history. At least in the Italian Hall Disaster It is widely believed that the shout was deliberately made with intent to cause harm or deaths. Even if no actual deaths resulted, I suspect the First Amendment would be no defense against a charge against disorderly conduct if the state did not have a specific statute.

    At least some states do have a specific statute though. Section 148.4 of the California penal code makes it a crime to "Willfully and maliciously sends, gives, transmits, or sounds any false alarm of fire, by means of any fire alarm system or signal or by any other means or methods." The degree of the crime varies by the result of this signal, and it seems written broadly enough to encompass just shouting it. I did some very briefly checking and could not find a time that this code has been constitutionally tested in California. I suspect if it were challenged that it would hold up under the Brandenburg test which is essentially incitement, though I would love to hear your point of view if you think it would fail or require some other category of exception.

    You are quite correct that incitement normally refers to urging others to commit a non-speech crime. But the phrase used in Brandenburg v. Ohio is "imminent lawless action". A panic with a high potential for bodily injury or even death, even if no one other than speaker intended to commit a crime, seems to fit that phrase quite well.

  62. barry says

    Trope 22. The First Amendment is why we can never have nice things like privacy.

  63. ANON says

    All of these are based on the exception mechanism, trying to say it already applies or should be expanded to apply. Since people (especially me) have no understanding of where these exceptions come from it's a plausible argument.

  64. says

    Cabbage: You asked why Ken White seems to broadly approve of U.S. sexual harassment law while otherwise favoring free speech.

    Having read the three posts you cite as evidence, I'd say it's more a matter of: "Like it or lump it, it's the law and you don't get to rewrite the laws."

    That and: "Good Lord, some people do some really awful things in the workplace" — things to which the bantering and socializing you mention probably don't compare.

    More broadly, I agree with you about the lengths to which U.S. sexual harassment law sometimes goes — not to mention some employers and colleges even go well beyond *that* just to be safe (or out of ideological conviction, especially on campus). More than once, people — including decision-makers — have literally said to me "If she says it's harassment, it's harassment."

  65. says

    While a bit of a tangent from the original topic, albeit I do feel related, a term that drives me crazy as well is "haters gonna hate". While usually directed at racist assholes, it is ironic because the core of racism is essentially dismissing the humanity and value of a target through racist attitudes and language. Labelling in turn that the racist is simply a "hater", also implies *they* have no value, that they too can be reduced to a negative label.

    While this is more forgivable with actual racists (though it is hard to believe it has any hope of bettering anything by convincing a racist to not be a racist), the term is now used for anyone who happens to vocally disagree. In the end it becomes a coded way of saying, "shut up, your opinion isn't worth anything as you're simply one of *those* people".

    If we want a society that can actually work through our differences, we need to find language that transcends simple stereotypes. Yes, that guy may be a racist asshole, but the truth is he probably has value otherwise and maybe if you can promote those values while diminishing the flaws (eg: racism) you can actually convince rather than alienate. After all, last time I checked saying simply "you're an asshole" or "you're a hater" wasn't a very effective tool at convincing anyone…

  66. MarcdmHaefner says

    Okay, so this hostile work environment/free speech issue bothered me so much I looked up the federal discrimination statute (Title VII) and a bunch of cases to try to find some clarity. I had a great deal of trouble finding relevant cases but in a case from the Michigan appellate court I did find an explanation. In the case, Burns v. City of Detroit, 253 Mich. App. 608, 621-623 (Mich. Ct. App. 2002), the male employees had said the sadly typically horrible things to a female co-worker including calling her a bunch of horrible names. The co-worker/plaintiff sued the company and the First Amendment and Michigan’s equivalent were invoked as a defense.

    The court quoted Chaplinsky on the limited and narrow exceptions to free speech, and then held that verbal abuse directed at a specific co-worker based on gender and using vulgar terms was not protected by the First Amendment. The Court gave the following explanations (the first two were given as holdings and the second two were explicitly given as dicta):

    1) “the comments at issue here were ‘no essential part of any exposition of ideas… .’” But where more “akin to fighting words and essentially constituted a vulgar, vituperative, ad hominem attack against an individual.” “These epithets and this personal abuse, directed toward a particular individual, were not in any proper sense communication of information or opinion safeguarded by the
    Constitution.”

    2) “the United States Supreme Court has noted, albeit in dicta, that the proscription of sexually harassing words by way of sexual discrimination laws is permissible, because the laws are essentially directed against conduct. See RAV v City of St Paul, Minnesota, 505 U.S. 377, 389; 120 L. Ed. 2d 305; 112 S. Ct. 2538 (1992).”

    3) The court also noted that the words could be considered issued at a “captive audience” which reduces the free speech protection because people cannot “vote” in the marketplace of ideas if they cannot avoid the speech (because, they are stuck at work with dirtbags).

    4) Fourth, the court also noted that maybe the compelling interest in eradicating discrimination permitted this level of restriction on free speech. The court said “[a]ccordingly, there must be a balance between eliminating workplace discrimination and safeguarding free speech protections.”

    The case was never appealed on this ground.

  67. says

    We may note the phrasing “abridging the freedom of speech”; the definite article suggests to me that it refers to a pre-existing (and finite) common-law concept of that freedom. What convenient literature discusses that concept?

  68. says

    Here's one that some big name authors (George R.R. Martin, Orson Scott Card, et al.) to block the creativity of fanfiction authors: "I have to aggressively protect my copyright or I will lose it."
    Er, no you don't. It's a copyright, not a trademark. If you decide not to sue 3 million fanfic authors one year, that doesn't stop you suing 300 downloaders the next.

  69. says

    BTW, the above comment should say 'use to block', but the site software is broken and only loads a blank page when I try to edit. *facepalms*

  70. Careless says

    So, is this, with 13 comments, the most recent post anyone else can see on the Popehat main page?

  71. says

    Really? I'll have to try that out once I get access to a physical keyboard, however unlikely that is. Way to lock out mobile device users from an important feature, Popehat. Couldn't be bothered to make a proper menu? *rolls eyes*

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