Voluntary Mandatory Self-Ratings and Limits on Speech
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. My self-rating .sig follows: V-CHIP CONTENT WARNING: THIS POST IS RATED: R, V, NPC, RI, S, I13. [For processing by the required-by-1998 V-chips, those reading this post from an archive must set their V-chip to "42-0666." I will not be held responsible for posts incorrectly filtered-out by a V-chip that has been by-passed, hot-chipped, or incorrectly programmed.] ***WARNING!*** It has become necessary to warn potential readers of my messages before they proceed further. This warning may not fully protect me against criminal or civil proceedings, but it may be treated as a positive attempt to obey the various and increasing numbers of laws. * Under the ***TELECOM ACT OF 1996***, minor CHILDREN (under the age of 18) may not read or handle this message under any circumstances. If you are under 18, delete this message NOW. Also, if you are developmentally disabled, irony-impaired, emotionally traumatized, schizophrenic, suffering PMS, affected by Humor Deprivation Syndrom (HDS), or under the care of a doctor, then the TELECOM ACT OF 1996 may apply to you as well, even if you are 18. If you fall into one of these categories and are not considered competent to judge for yourself what you are reading, DELETE this message NOW. * Under the UTAH PROTECTION OF CHILDREN ACT OF 1996, those under the age of 21 may not read this post. All residents of Utah, and Mormons elsewhere, must install the M-Chip. * Under the PROTECTION OF THE REICH laws, residents of Germany may not read this post. * Under the MERCIFUL SHIELD OF ALLAH (Praise be to Him!) holy interpretations of the Koran of the following countries (but not limited to this list) you may not read this post if you are a FEMALE OF ANY AGE: Iran, Iraq, Saudi Arabia, Kuwait, United Arab Emirates, Qatar, Egypt, Jordan, Sudan, Libya, Pakistan, Afghanistan, Algeria, Lebanon, Morocco, Tunisia, Yemen, Oman, Syria, Bahrain, and the Palestinian Authority. Non-female persons may also be barred from reading this post, depending on the settings of your I-Chip. * Under the proposed CHINESE INTERNET laws, covering The People's Republic of China, Formosa, Hong Kong, Macao, Malaysia, and parts of several surrrounding territories, the rules are so nebulous and unspecified that I cannot say whether you are allowed to read this. Thus, you must SUBMIT any post you wish to read to your local authorities for further filtering. * In Singapore, merely be RECEIVING this post you have violated the will of Lee Kwan Yu. Report to your local police office to receive your caning. * Finally, if you are barrred from contact with the Internet, or protected by court order from being disturbed by thoughts which may disturb you, or covered by protective orders, it is up to you to adjust the settings of your V-Chip to ensure that my post does not reach you. *** THANK YOU FOR YOUR PATIENCE IN COMPLYING WITH THESE LAWS ***
On Wed, 15 Aug 2001, Tim May wrote:
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.
Bullshit. The framers made no such distinction. A little thought will demonstrate why such a distinction is specious, and clearly politically motivated. Any speech which is distinguished as political or not raises a question of metric. In particular, who and how. Those questions are political by their very nature. Any speech is political in nature. -- ____________________________________________________________________ natsugusa ya...tsuwamonodomo ga...yume no ato summer grass...those mighty warriors'...dream-tracks Matsuo Basho The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
On Wed, 15 Aug 2001, Tim May wrote:
The First was designed to stop this kind of intrusion into personal, political, religious, and commercial speech.
Mostly agreed, though I still tend to think that there is a gray area where we might argue about the Framers' intent. Regardless of that, broad interpretation of the First is a positive thing.
So how about the "prevailing community standard" part?
More gnawing away at the First, of course.
Sure, but what I meant is that instead of limiting the concept of obscenity to truly repulsive kinds of pornography, the Supreme Court has effectively sidestepped the issue. Obscenity is not a very well defined concept, and anti-porn crusaders are betting on stretching it to cover ordinary pornography.
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.
Not really. Most of the anti-porn crusaders base their rhetoric on some vague idea of harm caused by the material. With most religions, you cannot easily draw the conclusion that they are harmful to the community. And where some people think you can, as is the case with Satanism and the lot, one can see that the public opinion already (mistakenly) sides with regulating them.
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.
I dunno. Constitutions are meant to legislate the state where the rest of the law legislates the state's subjects. It seems just appropriate that anti-government people would concentrate on constitutional issues.
None of the proposals for "voluntary self-labelling" are actually about any kind of voluntarism except in the Orwellian meaning of the term.
Naturally, but why not embrace and extend? The fact is, one of the reasons a good part of the CDA was struck down in the SC is the existence of self-labelling technology. The next time around, it'll probably still be a good idea to have true, voluntary self-labellers around, if not else, then to show off that "self-labelling works".
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.
Yes, I've gone through the archives on that, and plenty of other sources as well. Still, most of the critique is about why self-labelling will never be perfect. It does not render the idea completely useless -- I think of labels as metadata, some of which can be useful even if not perfect for any given use, filtering or finding hardcore S&M. As for misrating, that's a problem of reputation. If you can solve it in an anonymous economy, you can certainly solve it in a non-anonymous rating context. Sampo Syreeni, aka decoy, mailto:decoy@iki.fi, gsm: +358-50-5756111 student/math+cs/helsinki university, http://www.iki.fi/~decoy/front
On Thu, 16 Aug 2001, Sampo Syreeni wrote:
Mostly agreed, though I still tend to think that there is a gray area where we might argue about the Framers' intent.
Where? What in the 1st do you interpret as a gray area? -- ____________________________________________________________________ natsugusa ya...tsuwamonodomo ga...yume no ato summer grass...those mighty warriors'...dream-tracks Matsuo Basho The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
participants (3)
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Jim Choate -
Sampo Syreeni -
Tim May