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

[David Stultz]

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

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.

--dave

On Tue, 27 Feb 2001, Jim Choate wrote:

> 
> On Tue, 27 Feb 2001, David Stultz wrote:
> 
> > Just playing the Devil's Advocate here.
> > 
> > Are you allowed to go into a theatre and yell, "FIRE!!!" when there is
> > none?  Nope.  
> > 
> > There *are* restrictions on speech.  If MS's "speech" violated somebody's
> > rights, that speech can be made illegal.
> 
> Speech can't violate rights, only acts against another can. Speech is not
> an act against another.
> 
> Unconstitutional restrictions on speech that is. If there is a fire and I
> don't yell have I commited a crime? If I yell fire and everyone does
> nothing was a crime commited?
> 
> Let's take your example, it only applies if people are in the theatre AND
> they react as if there were a fire. But is it the safety of the theatre
> inhabitants we're concerned about? Clearly not since there are more than
> sufficient legal and civil recoveries for both the theatre owner and the
> patrons if their rights are infringed.
> 
> The reality is that causing a riot, via speech or some other mechanism,
> isn't protected by the 1st. The argument to forward is a straw-man, they
> want to regulate speech when it is convenient to their ends and they hope
> nobody notices they're pulling a fast one to do it. So what they have is a
> nice tasting argument so that you'll accept A PRIORI restraint on speech.
> 
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