Finding And Responding To The Media's Favorite Ridiculous And Misleading Free Speech Tropes
from the join-the-fun dept
A few years ago, Ken "Popehat" White put together a very important and useful post that completely dismantled the old trope that "free speech doesn't mean you can shout fire in a crowded theater." That line, of course, is so frequently used by those who seek to eliminate freedom of expression, and it's problematic beyond just for that reason: it's also wrong. The Popehat post is a really useful way to respond to anyone who makes that argument. A few months ago, the free speech group FIRE (yes the name is important in this context) put up a similarly useful post. And, as we mentioned last week, just recently Andy Sellars put together a great list of all the many times you actually can shout fire in a crowded theater (it's a long list).Either way, while the "fire in a crowded theater" may be the most overused anti-free speech trope, it is hardly the only one. Thus, Ken White is back with another important post detailing that and many other such tropes, especially as they're used in the media. And, importantly, he presents examples of them each being used, explains why they're wrong, and suggests how to counter the arguments. You should read the whole thing, but here are just a couple of the tropes listed:
White tells me he hopes to keep this post updated with new tropes, new examples and new explanations, so help out by heading over to his site and submitting more examples of tropes, and let's help Popehat create the definitive list of such tropes that can then be used to shame the media away from continuing to use these tropes every time they feel like chopping away at the First Amendment.Trope One: "Hate Speech"
Example: "hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it." CNN Anchor Chris Cuomo, on Twitter, February 6, 2015.
Example: "I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would." Edward Schumacher-Matos, NPR, February 6, 2015.In the United States, "hate speech" is an argumentative rhetorical category, not a legal one.
"Hate speech" means many things to many Americans. There's no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no "hate speech" exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase "hate speech" had a recognized legal definition, it would still not carry legal consequences.
This is not a close or ambiguous question of law.
When the media frames a free speech story as an inquiry into whether something is "hate speech," it's asking a question of morals or taste poorly disguised as a question of law. It's the equivalent of asking "is this speech rude?"
[.....]
Trope Five: "Balancing free speech and [social value]"
Example: "The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment." Washington Post, March 3, 2015.
The media's love of "balancing" stories is a variation on its love of "line between" stories, only more misleading.
"Balancing," when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don't weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn't, balancing of its "value" against other interests is almost always prohibited. As the Supreme Court recently said in rejecting the government's request to create new categories of unprotected speech through balancing:
The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178 (1803).
Courts occasionally engage in something that faintly resembles "balancing" when they apply different levels of scrutiny to speech restrictions. For instance, the Supreme Court said that Congress could prohibit the burning of draft cards because the government had a substantial interest in the draft system and the law was narrowly addressed to that legitimate interest, and aimed only at the non-communicative element of the conduct (destroying the card) and not the communicative aspect (doing so to protest the draft). But that analysis doesn't purport to assign a value to the speech. It considers only whether the government has a sufficiently compelling interest in its goal. Moreover, there's very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based — that is, premised on dislike of the speech — no matter how strong the government's interest. The Court has repeatedly rejected calls to do just that, and a focus on the content of disfavored speech (when it's not within an established exception) is almost certainly fatal to the proposed restriction.
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Filed Under: fire in a crowded theater, first amendment, free speech, free speech tropes, journalism
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Garland shooting related to Muhammad cartoons
I believe they have a First Amendment right to draw such cartoons. As to whether Muslims take offense: yes, they can take offense (just as Christians took offense at piss Jesus and shit-stain Mary), but Christians didn't take up arms against those so-called artists.
And despite protests from veterans, I think Under Armour can print its Iwo Jima-basketball t-shirt if it wants to. But it can expect disapproval from some (as well as support from others).
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Re: Garland shooting related to Muhammad cartoons
That miilionariress Jew Pamela Geller deliberately set up a provocation is not within doubt. She's the same one paid for anti-Muslim ads in New York.
The story changed from one valiant security guard (never named) to SWAT team already there. I don't have a link handy, nor would anyone who believes the official story (whatever it currently is) bother taking it. But it's out there.
Those who never question the official story are sheep.
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Re: Re: Garland shooting related to Muhammad cartoons
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Re: Re: Garland shooting related to Muhammad cartoons
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Re: Garland shooting related to Muhammad cartoons
And your point?
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Re: Re: Garland shooting related to Muhammad cartoons
Probably, that iodized salt is needed around the world, or maybe that stupid people, are just plain stupid.
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Re: Re: Garland shooting related to Muhammad cartoons
The fact that one particular group got offended and committed murder where their counterparts didn't is the point.
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Re: Garland shooting related to Muhammad cartoons
What you can't do is control how others respond. If you say “black people suck”, you have a unalienable legal right to do so…but you can’t tell people not to criticize you for saying it.
I think the Draw Muhammad thing is both an expression of free speech and a reprehensible attempt to provoke Muslims into a negative reaction that the press could use to further denigrate Muslims both in the US and abroad. Do I think it’s distasteful? Yes. Do I think it’s illegal? Fuck no.
The First Amendment exists to protect people like those Draw Muhammad cartoonists, because popular speech doesn’t need protection.
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Re: Re: Garland shooting related to Muhammad cartoons
It also is unnecessary. There are enough unprovoked incidents happening around the world for the press to use - if only the press would actually pay attention when the victims aren't white europeans - eg This case
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Re: Re: Re: Garland shooting related to Muhammad cartoons
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Re: Re: Re: Re: Garland shooting related to Muhammad cartoons
No - I said what I said.
I don't go along with your theory.
But it most definitely isn't about "particular groups of human beings" it is about particular ideologies.
If you had siad what you just said about Nazism in the 1930s (and many did) you would now rightly be vilified as an appeaser.
All these attempts to pretend that all ideologies are somehow equal just plays into the hands of the violent extremists.
In Lenin's word you are a "useful idiot".
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Re: Garland shooting related to Muhammad cartoons
If you're referring to Robert Marplethorpe, you're right: no arms were leveled at him.
BUT: he was tried on obscenity charges for that (along with other material, including a partially nude minor). The jury acquitted.
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Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
Instead of yet another piece on what you claim is proven beyond all questions, why don't you go into this?
http://wakeupfromyourslumber.com/how-google-adsense-censors-the-news/
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Re: Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
http://wakeupfromyourslumber.com/how-google-adsense-censors-the-news/
We did cover that.
https://www.techdirt.com/articles/20150325/05504930423/googles-ridiculous-adsense-morality-poli ce-strike-again.shtml
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Re: Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
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Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
Instead of yet another piece on what you claim is proven beyond all questions, why don't you go into this?
http://wakeupfromyourslumber.com/how-google-adsense-censors-the-news/
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Re: Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
Would you consider it censorship if a Christian newspaper refused to accept an advertiser as a client that only runs anti-Christian advertising?
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Re: Re: Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
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Re: Re: Re: Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
Being prevented from using a platform of any kind to express yourself is censorship.
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Re: Re: Re: Re: Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
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Re: Re: Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
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Re: Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
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Re: Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
White's case is of course legalistic, he is a lawyer discussing a legal priciple, that is restrictions on free speech, defined as the general prohibition of the government from punishing you for your speech. Everything he discusses is a matter of common law, so, no common law does not trump it. Common sense might express that specific instances of protected speech will result in non-governmental repercussions, but that does not trump whether the government can restrict that speech. So tell me again how common law and common sense 'trump' the existing common law.
Google adsense is not the biggest advertiser because its google. Google has had many products fail to catch on. If google never posted adsense beyond a google page it would be a big thing. But likely someone else would dominate the ad market, because other websites would have to use something else. No its the biggest advertiser because everyone has decided to use AdSense. If news networks don't use AdSense, AdSense loses market share. In fact, major news networks dont use AdSense as far as I have seen, probably for the reason the article describes. Google is not required to support every website, and has a specific criteria for what websites it will support. Those problems are not specific to AdSense. There is this thing called a TRAQ score that most ad providers use to determine your pay rates. https://medium.com/@obbybreeden/traq-scores-and-you-3f559a96e166 Interestingly enough, apparently the word 'fuck' counts as adult material and not offensive language. But regardless, Ad purveyors jusge your site on its content and will blacklist your site without any possibility for appeal. They wont even send you a nice letter to tell you why like Google does.
Do ad networks need to be retooled to be more friendly to websites? Yes.
Should google be leading the pack on this? Maybe, and in fact I think they are (Photos of Naked prisoners are not family friendly no matter if the photos are newsworthy or not). Google will directly notify you that you aren't being served ads, and explicitly show you why, which is far more then most ad companies do.
Is Google censoring the news? No. Google isn't serving ads to the news. In fact, based on Google's terms and conditions, AdSense is not a good fit for any broad news organization, because you are likely to cover subjects that AdSense is guaranteed not to be associated with.
Could AdSense perhaps make a second ad placement category that serves ads to less family friendly sites? Yes. Should they HAVE to? No. There are other ad networks that cover those markets. Of course, they are likely to be nearly as bad, as a few naked pictures of prisoners are still likely to get you blackballed. Which goes back to the need for reform of the marketplace. Which requires the efforts of companies unrelated to Google.
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Re: Re: Uh huh. But if you do and people are injured, you'll be sanctioned up to jail.
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This is maddening
Lying is not, there is a very clear difference.
Additionally if you think that people drawing Mohamed deserve what they get from the Muslims then you obviously think that women that get raped deserved what they got.
At the end of the day, each person is responsible for their actions, regardless of the activity, words, or visual that made them angry, evil, happy, good, or sad.
It is sickening that we actually have people saying the person expressing their "1st Amendment" rights are the terrible one here ahead of those that sought to take life. Not only do they call them terrible they additionally seek to remove their rights. If you cannot learn to live with people that have different ideas than you then you may not deserve to live at all. Where is all of that fucking tolerance everyone keeps preaching?
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Re: This is maddening
What?!? Please show me where lying is defined in the Constitution and its Amendments as a non-protected classification of speech. Your statement is a classic example of what Ken is talking about! There are tons of lies you can tell that are perfectly protected speech! Fox News even won a court case stating that the "news" they broadcast did not have an obligation to be true!
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Re: Re: This is maddening
http://www.snopes.com/politics/business/foxlies.asp
http://www.politifact.com/punditfact/state ments/2014/sep/10/facebook-posts/facebook-post-claims-fox-admits-they-lie-have-righ/
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Re: This is maddening
Some lying is protected by the First Amendment; other lying is not. Lying in a way that speaks negatively of a specific individual or organization is not protected by the First Amendment--it's defamation and can be enjoined. Lying about having served in the military, or the rank and/or awards you received, is protected by the First Amendment, as the Supreme Court recently held. It is false to categorically state that lying is not protected by the First Amendment.
While those beliefs might be logically consistent, there are almost certain to be logical inconsistencies among the beliefs of any person you may encounter (including yourself).
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Re: Re: This is maddening
But saying that lying is not protected by the first amendment is protected by the first amendment!
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"hate" speech
Especially with the internet, you have a very distinct and ugly school of online bullying that is quite obviously used against women, people of color and other minorities. I do not care for a 1st Amendment that only kicks in when death is mentioned.
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Re: "hate" speech
What is hate speech?
The problem is that certain minorities will regard any criticism as "hate speech", even if is factually true and carries no threat of violence.
It is an inconvenient truth for those who wish to defend minorities that the minorities themselves are not the blameless innocent victims that we would like them to be.
Yesterday's oppressed minority may well be tomorrow's oppressor.
Most people and groups will behave well when they are powerless - the true test is how a group behaves when they become powerful. Most fail that test.
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Re: Re: "hate" speech
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Re: Re: Re: Re: "hate" speech
Hate speech is a term devised by people who want to dismiss somebody else's argument without the need to properly address it.
(Along which the suffices ..phobia, ..deniers).
As such the term "hate speech" is itself (in a sense) hate speech.
If you think someone is saying something bad then do everyone the courtesy of taking on the actual content of what was said and don't resort to the cheap tactic of classifying it as "hate speech".
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Re: "hate" speech
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Re: Re: "hate" speech
So you support a broad reading of the first amendment that protects you in a wide variety of circumstances? I am failing to see how that helps your arguement.
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Not worded well. I meant that the 1st Amendment only kicks into "hey, that's not what the Founders meant" mode when death is mentioned.
The exceptions for commercial speech are clear. And when you're on the receiving end of it (and as a white male Boomer I rarely am), hate speech is a lot more obvious than this site seems to think. I'm not talking nuances, I'm talking Ms. Wu's death threats sitting on an FBI desk gathering dust. Hate speech/gamergate/Pam Geller — there are a lot of people working to necessitate a clarification of the 1st Amendment.
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Re: Re: Re: "hate" speech
I'm not even sure what your last sentence means. Can you clarify?
As for death threats, those are already not protected speech, as discussed. The FBI sitting on such a threat has nothing to do with the First Amendment at all, and nothing to do with "hate speech." You are confusing things greatly.
As for the issue of "hate speech" and "harassment" it's important to understand that you are conflating speech and actions. And that's where it gets dangerous. Most of us can agree that harassment is incredibly troublesome, but that DOES NOT MEAN you throw out the First Amendment when there is speech you don't like. That slope is way way way way too slippery.
I am quite concerned about online harassment, and especially in cases where it drives important voices out of conversations where they are needed. But you are very wrong to make that into an attempt to undermine the First Amendment. We had a long discussion about this at our Copia event a few months ago. I'd pay close attention to what Sarah Jeong and Dave Willner had to say: https://www.techdirt.com/articles/20150326/12252530454/free-speech-censorship-moderation-community-c opia-discussion.shtml
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Re: Re: Re: Re: "hate" speech
I don't have much faith in our Constitution anymore. Words can be used as weapons, and there is a gray area where our Constitution permits those with loud voices to brutalize those without power. Our courts refuse to see the connection between the words and the violence, but clearly some of those words lead to some of that violence.
You can use words to promote revolution without anyone being harmed, but a skilled hatemonger can use words to promote philosophies that result in attacks on whichever "other" is being scapegoated.
But maybe this is really just a debate about how selectively we interpret our laws. A SCOTUS worthy of the name would see that Geller's speech shouldn't be protected. Such a ruling would be of great comfort to me because I live in a violent country where haters constantly urge us on to new wars and more punitive law enforcement.
I do appreciate this site's optimism and belief in our Constitution, but increasingly I think that's a Norman Rockwell picture of an America that doesn't exist anymore, if it ever did.
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Re: Re: Re: Re: Re: "hate" speech
What speech exactly shouldn't be protected? She's said a lot of things.
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Re: "hate" speech
It's not "discounting hate speech" it's a factual observation that US law has no such category of speech.
I do not care for a 1st Amendment that only kicks in when death is mentioned.
Fortunately, we don't have such a 1st Amendment. There's plenty of unprotected speech that doesn't mention death. Did you read the Popehat article?
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Rothbard did this long ago
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Fascist Handbook - the Media
Once upon a time, the Free Press was the bastion - even the very backbone - of American democracy.
Now it is the bane of American democracy, using its ability to "inform" vast swaths of Americans, as a way to dis-inform the American People and undermine the very meaning of American democracy.
Of course, this has nothing whatsoever to do with the notion that the very first thing a fascist regime must do in order to take over a nation, is to secure and transform the nation's media into its propaganda tool and turn the Free Press into a Truth-Free Press.
That's just conspiracy-nut talk.
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Re:
Because the supreme court has recognized there are categories of speech that are not protected by the 1st amendment - in other words, freedom of speech is not absolute, and in some circumstances the government does in fact have authority to abridge speech. You may not like that fact, but that's the state of the law in the US.
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Re:
"Activist judges" was a big phrase when I was growing up. It even vexed the Vatican ("Activist priests").
I don't get it either. One individual "harassing" another individual should've been covered by existing law. Why'd gender need to be dragged in too? Anyone harassing anyone should have been punished equally.
Blame the Seventies (?) for being stupid, I guess.
And blame politicos for their penchant to be bought by special interests, which is the real flaw in the ointment.
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