Except in all of those cases the 'Fighting Words' laws have been deemed non-applicable. Those court cases were not brought to the supreme court to strike down the 1942 ruling on 'Fighting Words', they were brought based upon each case and government bodies attempting to use the Fighting Words ruling to suppress free speech. They didn't uphold the 1942 ruling, they have steadily whittled away at it over the years until its scope has become more and more narrow. They would not invalid it completely unless a case was brought up directly against the ruling itself.
If they didn't uphold the ruling they'd have overturned it. They didn't. Each
time "Fighting Words" has come up before the Supreme Court the Court has reaffirmed that "Fighting Words" exist and are not a protected category of speech. They may refine how it's used and in some circumstances restrict the scope but that in no way weakens or damages the underlying doctrine.
IE someone pushed a case that the ruling itself was unconstitutional. These sorts of laws and rulings are the reason we have unenforced, archaic laws that linger for decades like those in various southern states that prohibit everything from tying alligators to fire hydrants to having sex in anything other than the missionary position with spouse being technically illegal in Georgia. Said law exists on the books, but generally only because no one has brought a case to have it struck down. It's simply not worth the cost to 99% of the population.
1) The "tying alligators to fire hydrants" law doesn't exist. It's an ordnance rather than a law to begin with, it doesn't mention alligators (or any other specific animal), it's simply about keeping fire hydrants unobstructed and it was repealed and replaced.
2) I can find precisely no references to it being illegal to have sex in a position other than missionary in Georgia. There's mention of that being the case in Washington DC but if one tries to verify it rather than simply believe it because it's on the internet one discovers that it's a misreading of a sodomy law in Washington DC that was repealed in 1976. So no, it's not on the books either.
3) If the US Supreme Court wants to overturn a doctrine related to a case they have they will. In Citizens United they overruled Austin even though neither party argued to overturn it... the Supreme Court actually went back to the parties and told them that they needed to argue the point as the Supreme Court wanted to decide on it (the original scope of Citizens United was much narrower). In every case where "Fighting Words" has been raised the Court could decide to overturn it. They haven't... instead they've reinforced that it exists.
This isn't a free speech issue, this is an intellectual property argument which is an entire other massive and thorny issue that we haven't even come close to solving in the digital age. If you acknowledge that individuals can own 'ideas' or the like then this again isn't expression, it's theft.
No, it's a free speech issue (if we want actual, genuine 100% free speech). Ames and Hanssen (the two people I mentioned in this context) weren't prosecuted for intellectual property crimes, they were prosecuted for espionage. Their methods generally involved writing or directly talking to the Soviets. Hence, expression, hence a restriction on freedom of speech.
If you want to extend the discussion to IP laws and how they'd also almost all disappear if we had genuine, 100% free speech that's fine. But if we have genuine, 100% freedom of expression then how can I be prosecuted for what I express... even if that expression is revealing secrets to the Soviets?
Except if money never changes hands, no crime is actually committed.
1) Money doesn't need to change hands for their to be a fraud; pecuniary advantage is enough.
2) If there's no deception there's no crime.
The act of speech isn't the crime, the act of the financial gain related to your speech is the crime.
But my expression is still
being restricted. Lying is still
expressing oneself. If I lie and as a result gain a pecuniary advantage I have still
expressed myself. If the state then prosecutes me for that I am still
having my speech punished. Again, how is preventing me from saying that my company is about to make a $100,000,000 profit when it's actually made a $100,000,000 loss not
restricting what I can say?
Freedom of travel actually doesn't fall under free speech. It's also oddly not one of the rights that are actually in the Bill of Rights. Again this is US centric, but it is still illegal for a US citizen to visit Cuba for example except under some exceptions.
1) Technically it's not illegal to visit Cuba; the restrictions apply to trading or providing money to them.
2) Freedom of travel is certainly a freedom of expression/speech issue when one debates the theory and not the current legal framework. Otherwise a law requiring everyone to stay in the exact spot they currently occupy would have no freedom of expression/speech implications. Clearly it does.
There is some clear dissonance here. 'Expressing yourself' is not a catch phrase for 'do whatever you want'. Also as mentioned above, physical travel is oddly absent from the bill of rights for example. In addition there also has to be some understanding that individual rights can only be applied to that individual. YOU have the right to express yourself.
And that right is being restricted...
That does not give YOU the right to harm or restrict the rights of ANOTHER. (In this case an abused child or someone being stalked).
1) In the child abuse examples I gave the person in question isn't
directly harming the child. They're simply looking at/distributing pictures/video of them.
2) Remember, we're talking about actual, genuine 100% freedom of speech. Complete
freedom of speech. Freedom to speak without
restriction. In such a situation the fact that I'm expressing myself trumps everything
else. If anything else is more important then you're not talking about free
speech, you're talking about some form of regulated and restricted speech. It may be incredibly lightly restricted speech but it is still not free. That's the point. Free speech, much like meritocracy, is a nice sounding concept that virtually everyone wants to support... but when actually looked at it becomes pretty damn dystopian.
As I said before, death threats are the only real grey area but they can also easily fall under personal property and use of public service laws and avoid the free speech issue entirely.
Again, they can't avoid the free speech issue. If there is a restriction on what I say or how I express myself then there is a free speech issue and in a 100%, genuine free speech situation any restriction of it would have to be removed. Trying to lawyer around it doesn't make a difference. If expression is restricted then free speech is being infringed.
You are completely within your rights to say you want to stab John Doe with an icepick in his eye. It's your right to write it down, post it, make a fucking song about it. But if you're sending a letter to John Doe's house about it?
Well either a) you sent it through the postal service, which is illegal or b) you physically went to their house and left a note or something
In situation a) it has nothing to do with free speech, you are using a provided and optional service and they have the right to restrict that. In situation b) you are trespassing on private property and leaving threats.
1) If the postal service was completely privatized then they would have the right to refuse to carry my letters. Whether a non-privatized post service has that right is somewhat more complex. Regardless, the state would still have no right to punish me. The death threat is simply me expressing myself. If you go through the US Code on threats through the mail
for example you'll see that all of the crimes within relate to what is said in the letter... i.e. the expression. That's an open and clear restriction on freedom of speech; I am allowed to write a letter expressing how I dislike someone. I am not allowed to write a letter expressing how I dislike someone and intend to kill them. That's a restriction on what I can express.
2) Criminal trespass generally requires the person in question to have been explicitly refused permission to enter another's property. Until they have been refused permission (or been asked to leave) they are free to go there. This would also only apply in circumstances where the person being stalked/threatened owns where the message could be posted/delivered; if there was a post box or a post room (such as in some apartment blocks) in a public area (or in a communal area that the stalker/threatener also has permission to be in) then it wouldn't apply.
The only area that we truly lack in, and sadly will continue to for some years I suspect, is the digital realm. While you can file a restraining order against someone stalking you or sending you letters, the internet has made it very hard to get away from threats, slander, etc. That's our real grey area that eventually we will have to define where one's personal 'space' in cyberspace begins and ends.
There's nothing fundamentally different about the online world to the offline one. An email is the equivalent to a letter. A post on a forum is the equivalent to putting something in a public correspondence journal. An article on a website is the equivalent to an article in a newspaper. A post on twitter is the equivalent of posting something on a (physical) notice board (and if you @ someone the equivalent of an open letter that you send to the person in question and also post publicly). The scale and ease that things may be seen has changed but the underlying principles remain the same.
Either way waving a flag of 'You don't REALLY want free speech' has nothing to do with the fact that the essential point of this thread is that some people believe they have the right to suppress the speech of another because their personal beliefs are offended. And you are right, we do not have truly completely free speech in the US or anywhere else in the world that I know of.
But it doesn't mean I'm going to sit by and agree that we should legislate that things like Charlie Hebo's cartoons and writings should be made illegal because they are 'provocative' towards religion or anything else.
1) Unless I'm misreading the OP and Kythia's following posts, the essential point of the thread was about whether (in moral rather than legal terms) it was possible to be so offensive that you deserve a punch? Should it be allowed to be that offensive? Should it be allowed to get that punch? And so forth.
2) But it does mean that on in turn can't wave a flag going "freedom of speech" alone as the reason for why someone should be allowed to offend others. There are restrictions on freedom of speech... the very ones I mention here... that virtually everyone agrees with. And once you've agreed that freedom of speech can be rightfully restricted in some circumstances then the question is no longer about freedom of speech itself, it's about where's the correct place to draw the line. And that's a different question.
Indeed, and I've always - to veer off topic for a bit - suspected this is one of the reasons I've never heard a good defence of it, most attempts are kinda stupid. It's because people act as though, and possible believe, they are defending some abstract philosophical principle but what they are actually trying to defend is a considerably more mundane series of compromises with reality. Admitting that means they don't support the philosophical ideal, though, and so consciously or no they try to defend a position they don't hold using language inappropriate to the situation.
Agreed... as I mentioned above "Freedom of Speech" is a nice soundbite that has some emotional power behind it but when one gets behind the flag waving and tendency to die on a hill it turns out actual, genuine, 100%
freedom of speech is actually pretty awful. Do you think it should be a crime to betray your country by telling a rival all your secrets? Do you think it should be a crime to send death threats to someone? Do you think it should be a crime to do the sort of "romance scams" which one sees where someone forges a fake romantic relationship with someone and then repeatedly tries to get them to give them money? Do you think viewing, owning and distributing child porn (albeit not creating) should be a crime? Then you don't believe in actual, genuine, 100%
freedom of speech. You may believe in very, very, very, very, very, very, very
lightly restricted speech... but that's not free speech and it's not as catchy a doctrine to support.
Actually no. I promise I'm not just being deliberately obstructionist here. I've not yet fully decided where I stand on this but I am increasingly leaning towards the "overreaction" viewpoint not the "wrong in principle" viewpoint.
I think we're slightly at cross-purposes here; the "issue" I was pointing out largely follows your own thinking. Once we accept that one can be morally justified in punching someone who insults your child we can no longer argue that it was wrong in principle for people to physically attack the Charlie Hebdo staff. The terms of the discussion have gone beyond whether it was right or wrong for them to do so and instead gone on to whether it was right or wrong for them to attack as severely as they did.
I think I disagree with the intent behind "because something is more justifiable doesn't make it justified". Sticking a "necessarily" in in there to clarify (what I see as your) point.
The intent is basically this; I think it's more justifiable for a battered wife who has put up with years of mental and physical abuse to kill her husband in his sleep then it is for a wife who has been in no way abused or attacked to do so simply because she felt like it... but I do not consider either killing justified. I can have more sympathy for someone who punches someone else after the second person insults their child then I would for someone who punched simply because they felt like it but I can still feel it's wrong to do so.
I'm an offended Muslim, I have a range of options. Terrorist attack on one end, sucking it up on the other. Various stuff in the middle. And as "atrocity-ness" increases in one direction, so "justifiability" increases in the other. I presume we can agree on that.
Somewhat semantically, I actually don't. I think an offended Muslim would be absolutely justified in doing a whole range of actions (generally related to peaceful protest) in relation to Charlie Hebdo that are a long step away from simply sucking it up. There is a point where things become justified... I don't think they can then become "justified+"
You mention that there's a "chilling effect" on speech - defined broadly - if we're to take the offence caused by our words in to effect. But, well, we do. It's part and parcel of not being a fucking dickhead. We phrase things so as not to offend others around us. E has a civility rule. When we're talking with our friends, we might gloss over politics and stick to football because we know we'll disagree. Hundreds of tiny concessions to insult and offence we give every day just because we're a social species.
I generally follow a "don't be a dick" rule in my own life and it serves me fairly well. But even when not
being a dick (or not being a dick deliberately) one can offend people. I've used this example before but some people consider facial hair and Movember offensive. I frequently have facial hair and have taken part in Movember for years. Yet I am offending them. Worse I now know
I'm offending them and yet I'll continue to do it anyway. For me, that passes the "don't be a dick rule". In essence I balance out how deeply I care about something/how much I want to do it vs the offence caused and how legitimately I view the offence.
Your argument seems to expand to call that a "chilling effect" which is nothing short of alarmist. Saying "yeah, he seems nice" on meeting a new boyfriend who doesn't isn't being censored, its being able to hold conversations with actual human beings. We accept that there is an onus on us to do that if we want to have friends.
Yes, there are compromises. And there are some compromises we should not be willing to make. To go with one simple example, if you look at what happened regarding abuse by Muslims of children in the UK prior to the release of the official report and you'll see significant numbers of frequently well-meaning people more worried about how offended Muslims would be then with protecting children. To go with another Life of Brian caused massive amounts of offense... if causing offense was the defining issue then it would never have been made. Animal Farm was offensive to those who supported the Soviet Union... it would never have been written. Harry Potter offended... it would never have been written. I could go on and on and on.
Should we take the amount of offence we cause into account when deciding how to express ourselves? Of course. But it shouldn't be the only or even simply the prime consideration. And basing it on how violently we expect people to react is giving the most violent and reactionary the biggest voice and actively punishing those who don't got to extremes. I may self-censor myself more because I'm scared
of their reaction but that has no moral strength to it; to go back to the first example used I don't believe there is any difference in how morally justified I am in insulting the two daughters of two men both of whom would be equally offended but one of whom I know will punch me and the other of whom I know will take it and possibly even laugh it off (while crying inside).
My "don't be a dick" test is about me, not about the other person. I don't want to offend them because I don't particularly like to offend people, not because I don't want them to be offended. Their beliefs only indirectly cause my self-censorship; the direct cause is my beliefs. And I don't
think it's morally justified to punch someone who insulted your daughter just as I don't think it would have been morally justified for the people who commited the Charlie Hebdo attack to have gone to the office and "just" beaten them up. Reacting to words with violence (outside of words which make me reasonably suspect that violence is about to be inflicted on me) crosses the Rubicon for me. It may be more justifiable but it is not justified. It may be understandable but it is not right.