On Wednesday, August 15, 2001, at 02:09 PM, Sampo Syreeni wrote:
> On Tue, 14 Aug 2001, Tim May wrote:
>
>> However, in a free society with protections similar to the First
>> Amendment, what people like or dislike is not germane to what
>> government
>> may pass laws about. There is nothing in the First which allows
>> government to regulate speech or music or any other such form of
>> expression based on its offensiveness to some. Nothing.
>
> Maybe, maybe not. I'm the first to agree that porn *should* be treated
> as
> equal to other speech, but considering the strength of the opposite view
> nowadays, I would not be surprised if the First was gutted in this
> regard.
> And I think if you look at the history of the Bill of Rights (which
> Americans naturally know far better than I ever will), one does have
> some
> reason to believe the "speech" in 1A is mostly targeted at political
> speech,
> even if the meaning is implied.
Many of us don't believe this common belief today, that the First is
mainly about political speech, is consistent with the intent of the
Framers. The Framers were well aware that when the King can decide who
can speak, and where, and in front of which others, then the King has
more power than any government should ever have. This would have applied
to whether Ben Franklin coudl publish his electricity research, Patrick
Henry his cure for baldness, or Thomas Jefferson his advertisements for
his fine tobacco products.
The notion that the King's men get to control what is said about
electricity research (pace recent cases in crypto, cloning, etc.) or
what is said about baldness cures (pace FDA, advertising laws, etc.), or
what is said about fine tobacco products (not in front of children, not
on television or radio, and not in increasing numbers of places--and
some of these are the result of "voluntary" (in the Orwellian sense)
deals the tobacco companies agreed to.
The First was designed to stop this kind of intrusion into personal,
political, religious, and commercial speech.
>> (The landmark Supreme Court cases on obscenity, like Miller, have to do
>> with fairly gross obscenity. Not that I agree they were justified, but
>> the
>> "online decency" issue is a long way from what the Supremes have said
>> may
>> be banned.)
>
> So how about the "prevailing community standard" part?
More gnawing away at the First, of course.
Given the notion that a local community may ban certain items because
they violate the "community standards" of the community, one is left
with the inescapable conclusion that a local community could also ban
Mormonism, or Catholicism, or any religious practice they deemed to be
violative of their community standards.
Ditto for community standards for gun ownership (cf. New York,
Washington, California, etc.).
Ditto for community standards for numerous other rights.
A law student recently reminded me that the "incorporation doctrine,"
coupled I presume with the language of the 14th Amendment (esp. the
"equal protection" clause), says that the states (and even smaller
divisions of political units, e.g., cities and counties) are BOUND to
obey the U.S. Constitution. It took a long while for this to be hammered
home with landmark cases, such as ones dealing with New York's version
of press censorship. (The Second is in a peculiar situation, for reasons
I don't have time to write about now.)
I see no reason under this reading why Idaho, for example, would be able
to ban "Playboy." Their "community standards" might be offended by
"Playboy," but then this is just as good a reason to ban Jews. What's
the difference? Either the U.S. Constitution applies in Idaho and
everywhere else, or it doesn't.
We talk a lot here about the Constitution. Strange for two reasons:
first, this is an international list, second, many of us are not exactly
supporters of government in general.
However, practically speaking, history is showing us that only a "robust
kernel," to use some computer science notions, can stop the predations
of the state. Or slow them down. In the legal arena, that is. If
technology or custom push into new regimes, the law may be bypassed or
forced to change.
Countries without a hammered-out series of ironclad (to mix some
metaphors) constitutional prohibitions on what government can do find
themselves with laws like Britain's "R.I.P." laws, or bans on crypto
like in South Africa ("No RSA in RSA!"), Russia, France, etc.
Without the extremely strong language of "Congress shall make no
law....," the U.S. would have had zillions of laws passed by do-gooders
and well-meaning Congresscritters.
(We have it with commercial speech, because the courts went off the
track and bought your theory that the First is about "political" speech,
not "commercial" speech. That, and overbroad interpretations of the
Commerce Clause. I've written too much about this issue already.)
Enough for now.
One last item:
>> Nor is "self labelling" acceptable under the First. My words are my
>> words, my pages are my pages. I don't have to "rate" them for how a
>> Muslim might feel about them, or how Donna Rice might react, or whether
>> I included material "offensive" to Creationists.
>
> Agreed. But I do think self-labelling is a nice gesture, and may even
> afford
> one a direct means of targeting a site specifically for the kind of
> people
> most vocal about banning online speech.
Fuck that noise.
None of the proposals for "voluntary self-labelling" are actually about
any kind of voluntarism except in the Orwellian meaning of the term.
And self-labelling is a foolish idea. No one is "tricked" into learning
that "Tropic of Cancer" has sexual content....Miller did not need to
plaster a warning label across his novel's cover.
As we discussed several years ago when the CDA was being debated, there
are profound problems with self-labelling. Some people will self-label
"incorrectly" for various reasons. Much debated several years ago.
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