Day #27 of the 60 Day Gratitude Challenge

[shadowkat]

The prompt is What are you grateful for in your country?

Various freedoms that I've begun to realize that I've taken for granted.
Freedom of speech/expression in particular. Not everyone has it.

I dated a doctor from Shang-Hai, China once and he explained to me that while the health care in his country was admittedly better - they didn't have some of our freedoms. For example, he explained, we wouldn't be having this conversation in China. We couldn't have it. If we did, we'd be thrown in jail for sedition.

The Freedom of Speech/of expression - is a right that we constantly have to defend, and we should not take for granted. It's a pesky one though - because other people get it too. This means, I have to tolerate forms of speech from others that are offensive.

But, it does come with restrictions - hate speech generally speaking is not allowed. I got into an argument once with George RR Martin on Live Journal over this. He insisted it was, I said, no, speech that incites others to kill or maim or hurt falls under hate speech and is not permissible. There's a test, of course, and it's rather rigid, but certain types of hate speech can be prosecuted and are, under the Civil Rights Act, and are not protected under the First Amendment. In addition, pornography isn't permitted, in particular pornography that puts another in danger or is harmful or seditious such as child pornography. (Mapplethorpe is okay.)

Overall though, our freedom of speech is pretty all-encompassing and because of it - I can post entries on the internet critiquing my government without worrying about anyone arresting me. I'm grateful for that. Not everyone has that right.

Comments

[wendelah1]

Though not protected speech, adult (as opposed to child) pornography is perfectly legal, depending on the state in which you live. The adult film industry, located in the San Fernando Valley, is both legal and subject to regulation by the state of California.

Trying to come up with a working definition of "obscenity," which is not protected by the First amendment, has flummoxed the Supreme Court for decades. The infamous "I know it when I see it" is not a working definition by any reasonable measure.

Snuff videos I assume are deemed obscene and not protected even though graphic depiction of violence is protected?

Okay, so hate speech is protected under the Constitution unless it advocates violence. It's perfectly legal to call members of the House of Representatives anti-Semitic, racist, etc. names on Twitter but advocating that those same members be rounded up and put in front of a firing squad is not. Did I get that right?

[shadowkat]

For the most part, yes. The courts keep re-interpreting it, and the definitions continue to be challenged by individuals, courts and the legislature.

There's a really good book about the history of US obscenity laws in the 1920s and 30s, as it affected copyright and publication - entitled "The Most Dangerous Book - the Battle Over James Joyce's Ulysses" - which was banned and censored in the US under the obscenity laws of the time. Those laws have since been overturned.

Another landmark case - which was also done as a film, with Woody Harrleson in the lead, was The People Vs. Larry Flynt - about Flynt's fight to legalize adult pornography.

They still are struggling with when it should be illegal and when it shouldn't be - kind of similar to prostitution, and often determined by state.

Hate speech is tricky. But yep, you are correct - the test is does it incite people to violence? Around 2004 or thereabouts, a fanfic writer on Live Journal posted an insane story about having her home invaded by the FBI and Homeland Security, her computer taken, and investigated - because she was posting about her hatred of GW Bush, and how she thought he should die, and writing snarky comedic posts about the many ways she'd kill him. Someone who didn't like her - notified the FBI and well...

She posted the story as a warning to the rest of us - not to do that.

That was the gist of my argument with GRR Martin. Yes, I can call him an asshole. Yes, I can hate him. Yes, I call him nasty names. No, I can't send him death threats, tell him how I'll kill him, or send information to others that would incite them to do the same - even if in jest. That's not protected under the First Amendment.

The test under the Supreme Court is The Bradenberg Test: "https://www.law.cornell.edu/wex/brandenburg_test".

"he Brandenburg test was established in Brandenburg v. Ohio, 395 US 444 (1969), to determine when inflammatory speech intending to advocate illegal action can be restricted. In the case, a KKK leader gave a speech at a rally to his fellow Klansmen, and after listing a number of derogatory racial slurs, he then said that "it's possible that there might have to be some revengeance [sic] taken." The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:

The speech is “directed to inciting or producing imminent lawless action,” AND
The speech is “likely to incite or produce such action.”"

A classic example is yelling fire in a crowded theater - that incites people to stampede.

Or to incite a lynch mob.

But it's a hard test to prove, and people have found ways to wriggle around it. A lot of it comes down to how the people on the Supreme Court determine it. There's the fear of the slippery slope argument, that if you prohibit certain types of speech, you'll prohibit others.