Microsoft Trial Judge Based His Break-Up "Remedy" On Flawed Theory, Not Facts

[Jim Choate]

On Tue, 27 Feb 2001, David Stultz wrote:

> I see your point...prior restraint sucks, but I disagree with you that
> speech cannot violate rights.  What about slander or libel?

But that's not the speech but the consequence of the speech. No, you
should be held to an a priori 'no lie' standard. But if by that
lie you are damaging, and intent should aggravage the crime, another
person by the change in behaviour of anonymous 3rd parties then how is
holding the speaker accountable for those consequences a limit on their
speech? How does that justify saying 'you can't lie'? Aren't there times
when lying is the only way not to hurt persons (rare as it is, if it
exists we must allow that if we hold that hurting people is wrong).

> I believe that I have the right not to be publicly ridiculed and to be made 
> the subject of untrue statements against my character.  But that's the limit.
> I think that's about the limit of restriction on speech.  

You're an asshole (not really, keep reading). Ridicule is political speech
and should be protected. Now my stating to another 3rd party that you're a
baby raper and as a consequence you lose your business is a whole other
situation. It's not the speech that should be punished, it should be my
acting with intent to harm. That speech might be involved is really
irrelevant.

> But the reality of it is, prior restraint *does* exist, and seeing as code
> is speech, the same restrictions that apply to speech apply to code.  I am
> pretty much talking out of my ass (because I am not a lawyer), but what I
> just said makes sense.

As long as it exists the work is not done.

It's worth observing that to Hitler, he made sense. (and no, I am NOT
drawing any sort of conclusion, simply saying the 'I and I' is not the end
all).

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