Authored by: JIMO on Tuesday, July 05 2005 @ 06:17 PM

"if hardcore porn is actually unprotected speech"

I often find myself alone making this argument, but there is no such thing as unprotected speech or unprotected expression. You should be able to say anything or express yourself in any way you like. And I mean ANY way. Otherwise you end up with a government making selective judgements and selective enforcements, another thing the Constitution was written to prohibit strictly. Start encroaching on speech and expression even the slightest bit and you violate the laws this country founded on, and basic common sense rights, not once but TWICE.

---
There's always gotta be a reason for something.

[ Reply to This | # ]

Authored by: billsimmon on Tuesday, July 05 2005 @ 06:58 PM

"...there is no such thing as unprotected speech or unprotected expression. You should be able to say anything or express yourself in any way you like."

You may disagree with the Supreme Court (as I often do), but they are pretty clear on this point: not all speech is protected by the Constitution. Examples of unprotected speech include copyright infringement, slander, incitement to riot (that whole yelling "fire" in a crowded movie theater thing), threatening the President and "obscenity." I put "obscenity" in quotes because I mean it in its legal sense and as oppsed to "indecency," whis is protected by the Constitution. Whether or not a given bit of speech crosses the line from indecency to obscenity is a tricky legal question that seems to rely on a SCOTUS decision called Miller vs. the state of California, in which a test was laid out to determine obscenity. In making a determination, the court must consider...

* Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, * Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, * Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The work is considered obscene only if all three conditions are satisfied.

Of course all of this is beside the point because no one at VCAM is qualified to administer the test, so we must ask the powers that be what they think. Tomorrow I get to call up the ACLU and the state's attorney's office. Yay for me.

[ Reply to This | # ]

Authored by: JIMO on Tuesday, July 05 2005 @ 07:44 PM

You may disagree with the Supreme Court (as I often do), but they are pretty clear on this point: not all speech is protected by the Constitution.

I do often disagree, and never stronger than in this instance.

copyright infringement
Why this gets bundled in with speech, I have no idea. Saying what you want, and selling someone else's original material like it's your own, or like you're just "expressing" yourself, are 2 totally different things.

slander
Libel, slander, defamation, calumny, whatever you want to call it, has done wonders for keeping lawyers, judges, and other related law enforcement personnel in business for centuries now. Little else. If we've built a society that so holds precious impressions of the truth, rather than the truth, well, I think we have a lot more to worry about than the National Enquirer's accusations about Tom Cruise's sexual tendencies.

incitement to riot (that whole yelling "fire" in a crowded movie theater thing)
Funny, Bush can yell fire in a theatre on a global level (i.e.: WMDs! WMDs! WMDs!) and get tens of thousands of people killed and maimed for no reason, but we're more concerned about a riot here or there. Again, the government will selectively enforce hogwash like this, which the Constitution strictly prohibits.

threatening the President
I'll just extend this to threatening anyone, and respond that it is better to know when some asshole has it out for you. Let people say what they want. The statement is not the fucking problem, the bullet is.

obscenity...prurient interest
What a bunch of vague garbage. "Appealing to unusual sexual desire" and such. Who the hell can say what is unusual? Some old fart in a judge's robe is now going to publish a guide book for USUAL sexual desires?

"Unprotected speech" is horse shit plain and simple, or, fine, go ahead and trample the Constitution and turn us into Iran, but stop saying "freedom and democracy" over and over, like we're any less authoritarian than all those other "unfree" countries out there. By regulating speech in any way, the SCOTUS does nothing but prove where they come from, and who they wish to keep in business: LAWYERS. It doesn't do their ilk much good to make all speech free. Gosh, a lot of people might have to find REAL jobs, should that happen.

Anyway, I thought this wasn't supposed to be a political blog. Way to go, Bill, you've got me started.

---
There's always gotta be a reason for something.

[ Reply to This | # ]

Authored by: billsimmon on Tuesday, July 05 2005 @ 08:22 PM

JIMO,

I'm not saying I disagree with you (though some of the finer points ignored in your diatribe might be interesting to pursue), but you cannot deny that "some speech is unprotected." If the SCOTUS is not protecting slander, then slander is in fact "unprotected." This is a separate question from whether or not slander should be protected.

The SCOTUS may rule in ways you or I personally wish that they wouldn't, but they are doing the job that was set for them by the FFs. You saying that "By regulating speech in any way, the SCOTUS does nothing but prove where they come from, and who they wish to keep in business: LAWYERS" sounds an awful lot like GWB's "activist judges" rhetoric. We're not all supposed to like every ruling that gets handed down--it's not their job to agree with our personal interpretations of the Constitution, it's their job to interpret the big C themselves, based upon their expertise and the rule of law, and that's what they do, whether you agree with them or not.

As Flameape is so fond of saying, "them's the rules."

[ Reply to This | # ]

Authored by: billsimmon on Tuesday, July 05 2005 @ 09:28 PM

Speaking of copyright infringement, you should all go and read this fantastic Onion AV Club interview with my heroes, Negativland.

[ Reply to This | # ]

Authored by: JIMO on Tuesday, July 05 2005 @ 09:30 PM

"cannot deny that 'some speech is unprotected.' If the SCOTUS is not protecting slander, then slander is in fact 'unprotected.'"

Understood. I was not criticizing YOU, dearest Bill, for using the phrase "unprotected speech," just the fact that there IS unprotected speech.

"'By regulating speech in any way, the SCOTUS does nothing but prove where they come from, and who they wish to keep in business: LAWYERS' sounds an awful lot like GWB's 'activist judges' rhetoric."

If you're saying we're like opposite faces of the same coin, or that I'm the Anti-Bush, fine, guilty as charged. However, if my side of the extremist coin comes up, freedoms are PRESERVED in secular fashion, not ELIMINATED in Bible Belt fashion. That's the difference.

"We're not all supposed to like every ruling that gets handed down--it's not their job to agree with our personal interpretations of the Constitution, it's their job to interpret the big C themselves, based upon their expertise and the rule of law, and that's what they do, whether you agree with them or not. As Flameape is so fond of saying, 'them's the rules.'"

And when Bush or another Republican gets a couple more Scalia's on the SCOTUS and it reverses, say, Roe v. Wade, leaving it up to the states to decide, will you still say "them's the rules" as comfortably? There are times when you can look at any authority figure and see beyond the supposed expert, principled, unbiased arbiter straight to the foibles, ego, and self-interest. The SCOTUS judges are human after all, not some emotionless robots. Declaring some speech protected, and some unprotected is precisely one of these glaring moments.

---
There's always gotta be a reason for something.

[ Reply to This | # ]

Authored by: billsimmon on Tuesday, July 05 2005 @ 09:59 PM

"And when Bush or another Republican gets a couple more Scalia's on the SCOTUS and it reverses, say, Roe v. Wade, leaving it up to the states to decide, will you still say "them's the rules" as comfortably? etc."

Fortunately the FFs were really smart and put in place checks and balances to take care of all that nasty human fallibilty. That's why the Senate has to confirm justice appointments. It's why there are nine justices and not 3 and why an appointment is a life-term.

To answer your question, yes, I will still comfortably say "them's the rules" even if RvW gets overturned. The system exists for a reason and so far, the system works pretty good (attempts to undermine it notwithstanding).

Things are getting better, not worse, w/r/t civil liberties. You may think that this age of the PATRIOT ACT and GWB and a potentially stacked SCOTUS is a downslide toward the abyss, but remember that during WWI you could be jailed for saying bad things about the President--and the Oliver Wendel Holmes SCOTUS upheld that decision. Women have only had the vote a short time. Gay people can get married in MA and by the United Church of Christ. In general, things are looking seriously up, from a secular humanist's point of view (and seriously down from a conservative Christian's POV). We're winning. This recent bend to the right is tiny compared to the huge leftward progress of this country's history.

If you want to hear a great extemporaneous talk about our current political situation and its place in the larger history of America, rent "The Hunting of the President" and watch the special feature of President Clinton speaking after the film's premiere. It's F-ing great.

[ Reply to This | # ]

Authored by: Anonymous on Tuesday, July 05 2005 @ 10:35 PM

Cos my reaction here to the comments thus far is, "good shit". It makes me happy to see.

"This recent bend to the right is tiny compared to the huge leftward progress of this country's history."

Well yknow, I'm pretty apolitical in the sense that I believe there is very little difference between the two big parties at the top, but hey. I would interpret this to mean "human beings at large may in fact have spent their vowel money on a cluex4, and may at large be gradually becoming more accepting of other specific human beings who aren't wearing the same t-shirt". And in that sense, I think YEA BAYBEE.

Carry on.

Debatably geekier than you but feeling as though this particular emperor is not undressed,

T

[ Reply to This | # ]

Authored by: JIMO on Tuesday, July 05 2005 @ 11:13 PM

I would share your optimism about the left vs. right struggle, but there's an elephant in this room: corporations. And I think we know which side goes to battle for them more often, and how the battles turn out...

The FFs also set aside certain inalienable rights, which the government, even through a system of checks and balances, could not touch. First among them was free speech. Yet, here we are being told by a bunch of people who have a vested interest in unprotected speech that we have limited access to speech. As Tommie from Car Talk says, BOH-OH-GUS.

As for the Negativland boys, I love 'em, but, sorry, their issue is not a free speech issue. It's whether or not sampling amounts to copyright infringement. I tend to think it does NOT, but if rappers can't do it, I don't know why they should be able to.

---
There's always gotta be a reason for something.

[ Reply to This | # ]

Authored by: billsimmon on Wednesday, July 06 2005 @ 12:28 AM

Okay, I normally would have walked away from this discussion long ago, but it's the end of my work day and I got nothing better to do except edit a podcast so...

I would share your optimism about the left vs. right struggle, but there's an elephant in this room: corporations. And I think we know which side goes to battle for them more often, and how the battles turn out...

yeah, corporations have too much power and yeah, it's the right that likes to keep it that way, but that's beside the point I'm making about the country's journey toward progressive ideals in general, which is mostly a point about social issues rather than economic ones (yes I know they are interelated somewhat). We have a ways to go to catch up to Europe and we have this weird fixation on Jesus, but by and large the prevailing wind blows left is all I'm saying.

The FFs also set aside certain inalienable rights, which the government, even through a system of checks and balances, could not touch. First among them was free speech. Yet, here we are being told by a bunch of people who have a vested interest in unprotected speech that we have limited access to speech. As Tommie from Car Talk says, BOH-OH-GUS.

Well not exactly. The inalienable rights thing is from the DoI, which is not a law-making document. The constitution lists particular rights at all only over the objections of Alexander Hamilton, who thought that as soon as you start listing rights that govt. cannot abridge, you imply that there are other rights that govt. CAN abridge (see federalist paper #41--thanks NTodd!)

We can argue until we're blue in the face over whether or not the FF's meant ALL speech should be permitted (including making false medical claims, threatening your children with a knife, publishing state secrets, etc.) but you and I aren't constitutional scholars. The SC justices are (apologies for this blatant appeal to authority). I disagree with their calls a lot, but I'm also not about to get appointed to a seat on the bench (at least I don't think I am...). I do, however, have the ability to endorse, canvass for, donate to, and vote for candidates that will help get justices who agree with me nominated to the bench. So do you, so quit whining. :)

As for the Negativland boys, I love 'em, but, sorry, their issue is not a free speech issue. It's whether or not sampling amounts to copyright infringement. I tend to think it does NOT, but if rappers can't do it, I don't know why they should be able to.

How is it not a free speech issue? Their whole point is that we live in a media-drenched culture and we are prevented from making art that directly comments on that culture by restrictive copyright laws. Copyright infringement is "unprotected speech." Isn't this what you've been arguing against?

[ Reply to This | # ]

Authored by: billsimmon on Wednesday, July 06 2005 @ 12:49 AM

Where the hell are you, NTodd? Get your ass in on this.

Jim, A larger point about checks and balances: they were designed to prevent abuse of power. The legislative branch can make laws, the executive can veto, the judicial can overturn, etc. Even in this climate, with the all three branches of govt. controlled by one party, the republicans can't get there SS crap through & can't get most of their nominations confirmed--because of the checks and balances.

T, glad you're having fun, nude emperor or no.

[ Reply to This | # ]

Authored by: Ntodd on Wednesday, July 06 2005 @ 09:28 AM

Debates about free speech are so pre-9/11.

---
Don't mess with a man with a Wayback Machine. I can make it so you were never born.

[ Reply to This | # ]

Authored by: JIMO on Wednesday, July 06 2005 @ 06:37 PM

Well not exactly. The inalienable rights thing is from the DoI

Actually, no. The DoI covers UNalienable rights, life, liberty, pursuit of happiness, which cannot be forfeit no matter what. INalienable rights, such as those covered by the Bill of Rights, can be forfeit, but only by a willing individual, not by an outside force, such as the government. Picky difference, but I guess the FFs wished to make that difference, so you could join the military, a religion, or something similar, by choice, give up certain rights, and be bossed around for awhile.

We can argue until we're blue in the face over whether or not the FF's meant ALL speech should be permitted (including making false medical claims, threatening your children with a knife, publishing state secrets, etc.)

False medical claims are fraud, not free speech. Threatening someone with a knife is endangerment, not free speech. And publishing state secrets--even though the planet would be a whole lot better off if all countries allowed this--is treason, depending on the severity, not free speech.

How is [Negativland] not a free speech issue? Their whole point is that we live in a media-drenched culture and we are prevented from making art that directly comments on that culture by restrictive copyright laws.

Copyright infringement is not about free speech. It's about taking someone else's original material without paying for the license and profiting from it. From what I've heard of Negativland, they sample stuff and work it into their otherwise original compositions. I don't know if taking blurbs or parts of a work is a copyright violation. Sampling is a weird thing, and I'd probably side with them and rap/hip-hop artists in the end, and say it is not. They could comment all they want about the state of culture and society in their art without sampling, however, so it's fairly bogus to say their right to free speech has been violated because they can't directly copy some part of a pop song into their art. If one of Edge's guitar licks injected at the right moment makes their work funnier, well, maybe he deserves reimbursement, I don't know. They should stick with the idea that sampling is not copyright infringement, if they want Bono and the U2 boys' lawyers off their arses. Or, failing that, they could pay licensing fees and make the same art.

---
There's always gotta be a reason for something.

[ Reply to This | # ]

Authored by: billsimmon on Thursday, July 07 2005 @ 04:45 PM

The distinction between unalienable and inalienable seems pretty bogus to me. Did Jefferson just make up "unalienable" for the DoI or did the word exist before then? And if the distiction has to do with divine creation, why did Jefferson even need to write "endowed by their creator...?" Isn't it redundant? Spine, any thoughts?

"False medical claims are fraud, not free speech. Threatening someone with a knife is endangerment, not free speech. And publishing state secrets--even though the planet would be a whole lot better off if all countries allowed this--is treason, depending on the severity, not free speech."

Um, Nudity is indecent exposure, not free speech. Yelling fire in crowded movie house is public endangerment, not free speech. Slander is... slander, not free speech. You see my point? That these types of speech are limited by the existence of other laws doesn't automatically mean the limitation of that type of speech is okay. Either the limitations placed upon free speech are arbitrary and tyranical, or they're not. There is no distinction between the excuses you list above and the ones I just typed. Same goes for copyright infringement--it's not free speech, it's theft. Except copyright infringing speech is a type of speech that is not protected by the constitution and therefore it is a free speech issue.

I hear this all the time at my job when people call up to complain about a show they saw that they think "crosses the line." "I'm all in favor of free speech, but (there's always a "but") this isn't free speech, it's treason (or fill in your offence here)! " Sorry, Charlie. If the show you don't like isn't protected speech, then call the cops and have the producer arrested or shut up and change the channel.

[ Reply to This | # ]

Authored by: JIMO on Thursday, July 07 2005 @ 11:37 PM

Here's a Wikipedia link to inalienable vs. unalienable rights. But, as you mentioned, the DoI had no real teeth, and was really just a promise of things to come. The inalienable Bill of Rights that followed is really all that matters.

Um, Nudity is indecent exposure, not free speech.

Yes, nudity in public in front of an unsuspecting victim would be indecent exposure, depending on your sensibilities about the proximity of a naked human body you did not ask to see. Nudity in a porno film, however, that someone elects to purchase of his or her own free will would not be indecent exposure.

Yelling fire in crowded movie house is public endangerment, not free speech.

As per my earlier post, the problem with policing this type of speech is some guys are given free passes, even when their unnecessary alarm bell results in thousands of deaths. If authorities in this country lack the ability to enforce these violations without bias, this type of speech must be open to everyone, and not just to those in power who have escape routes set up that common folk do not.

Slander is... slander, not free speech.

If shown legite cases, I could change my mind here, but I seriously doubt livelihood is ever actually threatened. Slander is rich people trying to get revenge against other rich people, regardless of whether the statements in question were true or merely opinions. Overall it's had the overall award-winningly pointless effect of employing lawyers. Especially when you can just turn around and call the slanderer an idiot too and be done with it.

You see my point? That these types of speech are limited by the existence of other laws doesn't automatically mean the limitation of that type of speech is okay.

If existing laws protect real victims, or prevent tangible, concrete dangers without selective enforcement, the limitation is founded.

There is no distinction between the excuses you list above and the ones I just typed.

I think there is.

Same goes for copyright infringement--it's not free speech, it's theft. Except copyright infringing speech is a type of speech that is not protected by the constitution and therefore it is a free speech issue.

Violating copyright law is not a speech issue just because people guilty of it try to hide behind the First Amendment. This is like taking seriously a murderer's defense that he was expressing himself freely. And it belittles people with REAL free speech issues merely trying to make a living selling original material that a judge has determined illegal for no good reason.

If the show you don't like isn't protected speech, then call the cops and have the producer arrested or shut up and change the channel.

An original show should always be protected speech, regardless of content, and cops are violating the simplest of our rights by arresting people. Or if not, fine, our authorities have managed to turn America into Iran. Swell.

---
There's always gotta be a reason for something.

[ Reply to This | # ]