Monday, January 11, 2021

Let's Talk About Freedom of Speech by Kenneth Quinell on Facebook

 Okay, let's have a talk about freedom of speech. A lot of people, across the spectrum REALLY don't understand the concept, either on a philosophical or practical level.

Starting philosophically, people seem to think that freedom of speech means you can say whatever you want and face no repercussions. No part of that is true. Freedom of speech laws actually are specifically designed to protect political speech from punishment by an opposing government. It's there to prevent government from punishing their opponents, and thus falsely keeping control of government through the use of government power. Freedom of speech laws are EXCLUSIVELY about government and provide no protections in any other context.
So, big picture, the only thing that the First Amendment provides you is protection against the government punishing you for your POLITICAL speech and even that isn't close to being universal.
There is no conception of freedom of speech where you can just say anything you want. There are always things that you can be punished for by just saying them. This has always been the case and it's what we want. Even when a thing is legal to say, the government can limit the time and place where you can say it. To tie these together, you can't walk into a school and graphically describe how you are going to murder children in front of children. And we don't want people to have that freedom. And no law would protect that speech anywhere.
There are some that claim limiting any speech is a slippery slope to worse things. This is utter nonsense. "Slippery slope" is a logical fallacy. What that means, essentially, is that it ISN'T HOW THE REAL WORLD WORKS. 100% of the time when someone says "it's a slippery slope," they have stopped talking logically and are no longer representing reality. Also, we know that this particular slippery slope isn't true. After World War II, Germany banned all Nazi speech and imagery and you know what happened? Everything got better for basically everyone. Germany, the least free country, likely in the world, as of 1945, is now more free than the U.S. and, literally, in every measure-economic, social, etc.-Germany does better than the U.S. now. Banning seditious hate speech can't harm a society and, in fact, helps create a freedom among the population that allows them to thrive. When people aren't constantly afraid of facing off against right-wing, seditious hate speech, it frees them up to do better things than hide in fear.
People are also under the false impression that free speech doesn't come with any responsibility. That's utter bullshit. That's an abusive way of thinking. If you talk someone into committing suicide and they do it, you are responsible for that act. Your speech caused it. Same thing if you incite a riot. Or an insurrection.
The good news, practically speaking, is that what I'm describing here is already how things work. It doesn't really matter what any individual person thinks about it, philosophically, we have laws that determine these things, not personal opinion. So in our system, the freedom of speech is protected by the First Amendment. But that part of the amendment is like three words long, so there's literally no detail on what that phrase means. That has been determined, over the years, by legislation and Supreme Court rulings, with the Supreme Court interpretation being the final say (barring a constitutional amendment to overturn the Court, a thing that has never happened in response to freedom of speech cases).
So here's how it actually works:
-You can say whatever you want, because prior restraint of speech is only legal in certain circumstances and because it's largely impossible to do.
-You are ALWAYS subject to consequences for your speech. There's no such thing as "I can say whatever I want and nobody can do anything about it." No. Others can ALWAYS do something about your speech. At a minimum, they can say nearly anything they want to about you and your speech, because that's literally the same thing, in terms of rights.
-Individuals can always sanction you for your speech. People can say or do anything legal in response to your speech.
-Organizations can always sanction you for your speech, except government. You can be fired. You can be demoted. You can be banned. You can be blocked. You can lose your membership. Whatever. The only reactions to your speech that aren't legal are those reactions that are illegal for other reasons. Like they can't murder you for your speech, but they can say "you should die" as a response to your speech.
-There are no real religious exemptions to this, meaning that saying "in the name of God" before your speech doesn't provide you any additional protection. Religious people don't have more or different speech rights, it's the same for everyone.
-The government can punish you, too. There are a fuckton of exceptions, all determined to exist by the Supreme Court, where the government can punish you. Here are just SOME of the exceptions that definitely already exist right now:
Incitement of criminal activity: If you say something that is LIKELY to incite or produce illegal activity, you can be charged with a crime. "Let's break into this building" while standing in front of it holding a trash can and looking like you're going to throw it through the window would not be protected speech. More recently, it's been determined that inciting someone to suicide is not protected, either.
False statements of fact: This one is a little complicated and you're probably safe in minor contexts, but there are a variety of things that you say that, if false, can be criminalized or be subject to civil penalties. Libel and slander, for instance, are not protected. If I post that "person X is a pedophile" and I'm actually using a real person's name instead of person X, if that person isn't actually a pedophile, then they can sue me and they'll likely win (there are some exceptions, including satire and public figures, to an extent).
Obscenity: Things that are considered obscene can be punishable by law, including pornography. This one is SUPER vague and is completely inconsistent across the country. It's completely left to local standards. So basic pornography could be punishable by law somewhere like, say, Utah, with it's massive Mormon population, and legal in, say, Florida, where there are no laws. The only universally-agreed upon thing that is always obscene in every jurisdiction is child pornography, but ONLY when it's literal. Pretend child porn is protected in some places (although it shouldn't be). I imagine snuff films would be obscene everywhere, too, but most jurisdictions haven't had any snuff film legal cases, so it really hasn't been tested.
Fighting words: If your words legitimately lead people to engaging against violence against other people, that speech isn't protected.
Threatening government officials: It's specifically illegal to threaten anyone in the presidential line of succession. This would include the president, vice president, speaker of the House and all cabinet-level secretaries.
There are others, such as intellectual property restrictions and copyright laws and other things that could be relevant, but I think I've covered most of the relevant political ones.
One caveat, just because speech "isn't protected," doesn't mean it's automatically illegal. A separate law would still have to criminalize it (or provide civil penalties) and that law can't be ex post facto, meaning that if someone took part in activity while it was legal, then it was made illegal and they stop doing it, they can't be punished for doing it when it was legal.
So, in summary, freedom of speech doesn't mean and has never meant "you can say whatever you want." Limitations on speech are not only not illegal, they're common, and banning evil speech is not just legal, it's the morally correct way to go and it produces better outcomes for nearly everyone in society. A BUNCH of people from the failed insurrection engaged in criminal speech, beyond other crimes they committed.
You've actually been duped in believing that speech is the highest freedom. It's not, legally or morally. There are people who claim that they would die to protect the speech of others. So you're saying you would be willing to die to protect the right of a Nazi to call for the extermination of all Jewish people? Or LGBTQ people? Or other such evil speech?
Then you're on the wrong side of the law and the wrong side of morality and you're willing to die for people who want to kill you. That's not honorable, nor is it patriotic. It's called "being a sucker."

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