From: rturpin@my-deja.com Subject: What free speech is, and what it isn't Date: 27 Dec 1999 00:00:00 GMT Message-ID: <83tnp4$pjn$1@nnrp1.deja.com> Distribution: world Approved: pw@panix.com Sender: pw@panix.com (Paul Wallich) References: <19991219220502.09861.00000015@ng-ck1.aol.com> X-Complaints-To: abuse@panix.com X-Trace: news.panix.com 946314843 11925 166.84.0.232 (27 Dec 1999 17:14:03 GMT) Organization: Deja.com - Before you buy. NNTP-Posting-Date: 27 Dec 1999 17:14:03 GMT Newsgroups: soc.feminism As begun by Ailc1, and if the moderators permit, I will offer a precis of my view of free speech, as a civil right. I think my views are reasonably orthodox from a civil libertarian point of view. I make no claim that they follow current legal theory. Let me begin with three things free speech is NOT. First, free speech is NOT an escape from obligations voluntarily assumed as part of employment, contractual, or professional relationship. If a soprano agrees to perform the Allelulia at St. Austin's on Christmas eve, she has an obligation to fulfill her contract, and those who paid her may sue for default if she reneges. This is NOT, in my view, a restriction of her freedom to travel, to sing, to dress, to think, or to worship as she wishes. The ability to voluntarily enter such obligations is, in my view, an important expression of such freedoms. Breach of contract, professional obligations to keep clients' secrets, rules against sexual harrassment at the work place, and similar obligations are, in some sense, restrictions on speech. But only in the sense that entering a voluntary agreement can carry subsequent restriction, modulo the consequences spelled out, on almost ANY freedom. Second, free speech does NOT entail an obligation on others to listen, nor create a claim to other people's property as a medium or forum for what you have to say. Graffiti, spam, and specific harrassment are not free speech rights. A person has a right to shut out a speaker they do not want to hear. Moderation of a forum, show, or a conference does not infringe free speech. If you want to be heard, it is up to you to rent the hall and attract the audience. You would be wiser to convince others that they should support what you say, in their forum, getting attention from audience they have already attracted. If you can't do this, you're back to building a forum and audience on your own. That's difficult, but no restriction on your freedom of speech. Third, free speech is not a "get out of jail free" card that can be played because one's participation in a crime was primarily a matter of speech. A bank robber is not excused because his sole act in the crime was to direct the teller to fill the bag with money. A murderer is not excused because his sole role was to direct an underling's actions. In my view, free speech is first and foremost that the laws, criminal and civil, are neutral regarding the CONTENT of speech. It is the legal principle that one can express any viewpoint one desires. Since I do not view free speech as an escape from contractual obligation, nor as a claim to audience or others' property, I am always dumbfounded when people note laws against graffiti, breech of contract, violation of confidentiality, etc. as examples of limitations on free speech. None of these restrict generally *what* one can say -- i.e., content -- but instead either address contexts in which one has voluntarily assumed an obligation, or recognize that your freedom to speak does not create an obligation on others to listen and support. There are parts of current law that I consider restrictions on free speech. I either oppose them outright, or want them to be carefully and narrowly defined. I will note three that have been mentioned in this discussion. (1) Laws restricting obscenity. This is blatantly a restriction on content. I oppose all such laws. (Yes, Virginia, that includes laws against child pornography. I think this problem should be addressed by prosecuting the crimes entailed in the production of child pornography. Child abuse is a crime, whether it is photographed or not. Copyright laws should be altered to give victims copyright claim to any recording of the a severe crime. These things combined give law enforcement the ability to prosecute the creation of child porn, and to prosecute those who distribute or possess it, AS LONG AS there was actual abuse involved in its creation. Similar principles would control snuff films, videotaping of rape, etc. Where there is no ACTUAL crime, no child abuse, no murder, no rape, I believe free speech should protect DEPICTIONS of such things.) (2) Defamation, slander, and libel. These, again, make someone liable for the content of their expression. On the positive side, these laws have narrow focus, concerning only expression about individuals who are positively identified. Nonetheless, I think they are too broad. Many people do not realize the harm that they do. I will offer one example. For decades, patients have complained about the tight-lipped medical community. Physicians and nurses will not publicize other physicians' mistakes or professional flaws. Critics paint a picture of a tight-knit group whose members stick up for each other. This simply is not true, at least, not to the extent that people think. The tight lips are NOT a result of group loyalty or cliquishness. More than anything else, they are a result of the chilling effect of libel and slander laws. (3) Inciting a riot, abetting a crime, etc. Here, the standard has been that the speech involved must be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Brandenburg v. Ohio, 1969.) By this standard, one can write an article encouraging the bombing of federal buildings, and this is protected speech EVEN IF some readers, so inspired go out and bomb federal buildings. The line is crossed when one reads the article to an audience, which in the moment and inflamed by the rhetoric, goes out and wreaks destruction. The Court thought it important to protect speech, even destructive speech that encouraged lawlessness, as long as the context did not lead to imminent illegal action. With the Paladin and Warner Brothers cases, we are now facing a situation where this line may be redrawn. Of these restrictions on free speech, MacKinnon's proposed law is closest to obscenity. Unlike defamation, libel, and slander, it does not concern speech about specific individuals. Unlike inciting a riot, it does not concern speech that leads to imminent lawless acts. Instead, it tries to make authors liable for the harmful actions of viewers or readers inspired by the work, no matter how far removed the author is from the viewer or reader who commits the crime. Such liability would have a chilling effect on what authors, artists, and film makers. Of all the current attacks on free speech, it is the broadest. It is not the most dangerous, because it is unlikely to be enacted, and if enacted, it is unlikely to pass Constitutional muster. But for its scope, for its intent, and fir its potential effect, it is roundly condemned by every civil libertarian and every proponent of free speech. Russell Sent via Deja.com http://www.deja.com/ Before you buy. -- Post articles to soc.feminism, or send email to feminism@ncar.ucar.edu. Questions and comments should be sent to feminism-request@ncar.ucar.edu. This news group is moderated by several people, so please use the mail aliases. Your article should be posted within several days. 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