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Free Speech: what it is and what it isn't
9 years ago
General
Twitter started rolling out some features to help stop harassment on the platform and is going to start banning people for hate speech. Turns out it might not be impossible to polish a turd, but no one wants to buy a shitty platform filled with trolls saying "kill urself"
Aaaanyway, this has of course sparked some people asking such things as "Isn't hate speech protected by the first amendment" and "isn't this against freedom of speech" and the answer to that is a solid no. It's not against free speech. Also hate speech is sort of protected...but also not really, but I'll get to that in a second.
First and foremost. Free Speech does not mean that you can say whatever you want, wherever you want, and face no criticism or consequences. That's just daft. That's never been the case.
So what is free speech? What does it protect? what does it entail?
I'll break it down.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That's the text for the first amendment. It's a single sentence packed with nougatty goodness of 4 explicit legal rights. Freedom of religion, freedom of speech, freedom of the press, and right to peaceful assembly. (there's also freedom of association, clarified by a later SCOTUS ruling)
We'll focus on Freedom of speech. The text above says you are protected from LAWS which would limit what it is you could say. the background of this amendment was so citizens could be free to question and criticize government without disappearing to jail, or execution, or whatever else.
An important thing to note here is LAWS not "policies from a private company or service"
FA can ban you for saying "Dragoneer looks like a left handed octopus at prom", Twitter can make a rule that says "if you say Voldemort, you're banned" and it's completely legal and these private organizations are not violating anything. A business is not obligated to offer you resources to make your message heard. you are not entitled to a service for your speech.
This goes into the nature of rights in the US, are they negative or positive rights? Positive rights mean that you have the right to do something, and are entitled to the means to accomplish this. Negative rights means you have the right to do something, but no one is obligated to help you achieve that goal. Some examples for the U.S.
Education is a positive right in the U.S.. You are entitled to an education from k-12 and we pay taxes as a society to accomplish this. Safety (from fire, theft, etc) is a positive right, we are obligated to help protect citizens by paying taxes and such.
Freedom of religion is a negative right. I cannot stop you from praying, but I am not obligated to provide you crosses. The right to bear arms is a negative right, in an oversimplified sense if you have a gun it cannot be taken (with some notable exceptions like felonies) but that doesn't mean you are entitled to a gun. It's not the government's job to hand everyone a pistol at 18.
Freedom of speech is a negative right. you cannot be stopped by law from saying your opinions but society is not obligated to give you the resources to speak, not obligated to listen, or give a shit at all.
so private organizations do not fall under "Freedom of speech" rules.
Now that being said there are some exceptions and this is where "hate speech" gets that "sort of"
The types of speech that are not protected by the first amendment are: fighting words, threats, obscenity, child pornography, inciting imminent lawless action, defamation, and various restrictions related to speech by government.
The government ones are interesting, the government if fact has no right to free speech and that's why things like license plates can be regulated (a state can deny putting the stars and bars on a license plate for a group, because the plates are ultimately state speech.) I won't go into all the details cause chances are if this effects you, you know already.
Obscenity. You are not protected if you are using obscenity. This is why radio stations or TV may get fined by the FCC. Anyone remember when a bunch of radio stations got hacked and started playing a recorded episode of the furcast podcast? due to obscenity they were subject to fines (the furries were in the clear, since they didn't violate anything) Were obscenity not an exception, the stations could not be fined as the speech would be protected.
what is obscenity? well this is an infamously vague term that once got the answer "I'll know it when I see it" but currently there is the "Miller Test". to be considered obscene an expression of speech must meet these 3 characteristics
"Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value"
Still super fucking vague...but you know, there's a good shot that if you're out in public proclaiming a love of hot furry dick, it's not protected speech or at least it'd be a court case to give a more clear answer. aaaaanyway
Child porn, is on the list because it doesn't have to meet the miller test, the test is irrelevant to child porn, CP is not protected speech.
Okay, Threats, fighting words, and imminent harm. This is what will effect most people reading this, and this is what is most connected to hate speech.
Threats are not protected speech. If you get a phone call, email, whatever from a person that is threatening your life or safety that is illegal and the person can be arrested for that (yay)
In the context for the point of the first amendment saying "I think the president has critically flawed policy" or "the president is a poo poo head" is protected speech. Saying "I will harm the president for this policy" is not, that's a threat not criticism of the government.
For threats, content is important.
Fighting words: If you are instigating a fight you can be arrested. This is why you can't be in public and just start cursing in someone's face. In this case it is not the content that is egregious but the actions. This is notable because it leads into the imminent harm part.
It was once the case that "clear and present danger" was the bar for exception, but in a later case it was changed to the higher "imminent danger' standard. This relates to hate speech as much of the hate speech would fall under the former but not the later (and the case in which the standard was changed was regarding the kkk)
so sadly, most hate speech is protected as it may present a danger, but unless it is advocating for immediate harm it is not an exception. Examples
"I hope all Gizzywigs are killed" is protected speech. It's shitty, but not illegal because advocating for harm is not advocating immediate harm. "Go out and stab gizzywigs today" could be an exception as it's advocating that one immediately goes out to harm people.
Shitty standard but it's worth noting this is all determined pre-internet, and legal philosophy is starting to debate if, in the internet age, because everything is so connected and moves so fast, clear and present danger and imminent harm are closer now than previous, or instances which in the past were not risk of imminent harm, now may be.
Anyway that was a lot of words so here's a super simple list.
Freedom of speech IS:
Protection to criticize government without legal repercussions.
Protection to express yourself without legal repercussions.
(*except in the cases of exception, as previously mentioned)
Freedom of Speech IS NOT:
Freedom of speech without consequences
Freedom to say anything on a private platform
Freedom to use threats
Freedom to advocate immediate harm
Freedom to use or express obscenities in a public forum
Entitlement to whatever resources needed to get your message across.
A magic spell that makes it so people have to listen to or give a shit about your awful fucking opinions.
Aaaanyway, this has of course sparked some people asking such things as "Isn't hate speech protected by the first amendment" and "isn't this against freedom of speech" and the answer to that is a solid no. It's not against free speech. Also hate speech is sort of protected...but also not really, but I'll get to that in a second.
First and foremost. Free Speech does not mean that you can say whatever you want, wherever you want, and face no criticism or consequences. That's just daft. That's never been the case.
So what is free speech? What does it protect? what does it entail?
I'll break it down.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That's the text for the first amendment. It's a single sentence packed with nougatty goodness of 4 explicit legal rights. Freedom of religion, freedom of speech, freedom of the press, and right to peaceful assembly. (there's also freedom of association, clarified by a later SCOTUS ruling)
We'll focus on Freedom of speech. The text above says you are protected from LAWS which would limit what it is you could say. the background of this amendment was so citizens could be free to question and criticize government without disappearing to jail, or execution, or whatever else.
An important thing to note here is LAWS not "policies from a private company or service"
FA can ban you for saying "Dragoneer looks like a left handed octopus at prom", Twitter can make a rule that says "if you say Voldemort, you're banned" and it's completely legal and these private organizations are not violating anything. A business is not obligated to offer you resources to make your message heard. you are not entitled to a service for your speech.
This goes into the nature of rights in the US, are they negative or positive rights? Positive rights mean that you have the right to do something, and are entitled to the means to accomplish this. Negative rights means you have the right to do something, but no one is obligated to help you achieve that goal. Some examples for the U.S.
Education is a positive right in the U.S.. You are entitled to an education from k-12 and we pay taxes as a society to accomplish this. Safety (from fire, theft, etc) is a positive right, we are obligated to help protect citizens by paying taxes and such.
Freedom of religion is a negative right. I cannot stop you from praying, but I am not obligated to provide you crosses. The right to bear arms is a negative right, in an oversimplified sense if you have a gun it cannot be taken (with some notable exceptions like felonies) but that doesn't mean you are entitled to a gun. It's not the government's job to hand everyone a pistol at 18.
Freedom of speech is a negative right. you cannot be stopped by law from saying your opinions but society is not obligated to give you the resources to speak, not obligated to listen, or give a shit at all.
so private organizations do not fall under "Freedom of speech" rules.
Now that being said there are some exceptions and this is where "hate speech" gets that "sort of"
The types of speech that are not protected by the first amendment are: fighting words, threats, obscenity, child pornography, inciting imminent lawless action, defamation, and various restrictions related to speech by government.
The government ones are interesting, the government if fact has no right to free speech and that's why things like license plates can be regulated (a state can deny putting the stars and bars on a license plate for a group, because the plates are ultimately state speech.) I won't go into all the details cause chances are if this effects you, you know already.
Obscenity. You are not protected if you are using obscenity. This is why radio stations or TV may get fined by the FCC. Anyone remember when a bunch of radio stations got hacked and started playing a recorded episode of the furcast podcast? due to obscenity they were subject to fines (the furries were in the clear, since they didn't violate anything) Were obscenity not an exception, the stations could not be fined as the speech would be protected.
what is obscenity? well this is an infamously vague term that once got the answer "I'll know it when I see it" but currently there is the "Miller Test". to be considered obscene an expression of speech must meet these 3 characteristics
"Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value"
Still super fucking vague...but you know, there's a good shot that if you're out in public proclaiming a love of hot furry dick, it's not protected speech or at least it'd be a court case to give a more clear answer. aaaaanyway
Child porn, is on the list because it doesn't have to meet the miller test, the test is irrelevant to child porn, CP is not protected speech.
Okay, Threats, fighting words, and imminent harm. This is what will effect most people reading this, and this is what is most connected to hate speech.
Threats are not protected speech. If you get a phone call, email, whatever from a person that is threatening your life or safety that is illegal and the person can be arrested for that (yay)
In the context for the point of the first amendment saying "I think the president has critically flawed policy" or "the president is a poo poo head" is protected speech. Saying "I will harm the president for this policy" is not, that's a threat not criticism of the government.
For threats, content is important.
Fighting words: If you are instigating a fight you can be arrested. This is why you can't be in public and just start cursing in someone's face. In this case it is not the content that is egregious but the actions. This is notable because it leads into the imminent harm part.
It was once the case that "clear and present danger" was the bar for exception, but in a later case it was changed to the higher "imminent danger' standard. This relates to hate speech as much of the hate speech would fall under the former but not the later (and the case in which the standard was changed was regarding the kkk)
so sadly, most hate speech is protected as it may present a danger, but unless it is advocating for immediate harm it is not an exception. Examples
"I hope all Gizzywigs are killed" is protected speech. It's shitty, but not illegal because advocating for harm is not advocating immediate harm. "Go out and stab gizzywigs today" could be an exception as it's advocating that one immediately goes out to harm people.
Shitty standard but it's worth noting this is all determined pre-internet, and legal philosophy is starting to debate if, in the internet age, because everything is so connected and moves so fast, clear and present danger and imminent harm are closer now than previous, or instances which in the past were not risk of imminent harm, now may be.
Anyway that was a lot of words so here's a super simple list.
Freedom of speech IS:
Protection to criticize government without legal repercussions.
Protection to express yourself without legal repercussions.
(*except in the cases of exception, as previously mentioned)
Freedom of Speech IS NOT:
Freedom of speech without consequences
Freedom to say anything on a private platform
Freedom to use threats
Freedom to advocate immediate harm
Freedom to use or express obscenities in a public forum
Entitlement to whatever resources needed to get your message across.
A magic spell that makes it so people have to listen to or give a shit about your awful fucking opinions.
A magic spell that makes it so people have to listen to or give a shit about your awful fucking opinions.
Finally someone else gets it.
foxYankee ass. Lucky for you we only burned the Whitehouse and didn't take it all back.Imagine Mentova as a Canuck!
*confurs honorary Cancku status on Mentova and FayV*
...I think
Generally, Canadians do NOT enjoy:
Property rights. Citizens are subjects of the Crown, and anything can be expropriated without compensation at the governments' pleasure.
Firearms rights. There are none. Its a privilege here.
Freedom of association is allowed, but freedom NOT to associate is forbidden. Although women and status indians enjoy special status in the Charter and are named expressly, where as men are not.
Our "Miranda rights" are similar, but quite different https://en.wikipedia.org/wiki/Miran.....arning#Canada. Although you are guaranteed to have the same rights in both French and English. Quebec uses the Napoleonic code as their basis of law, the RoC uses common-law.
Double jeopardy rights. The Crown can try you as often as they want if you are acquitted, until they get a conviction.
Freedom not to incriminate one self or testify against a spouse. Section 13 of the charter is similar to the US 5th amendment, but you HAVE to testify truethfully; it just cant be used against you in THAT specific trial. And there are some specific criminal codes, where you must give evidence against yourself. Typically the firearms act, hate speech and various forms of indecent pornography.
And of course, a government or provincial government can invoke the notwithstanding clause to opt out of any section of the Charter they don't like. Quebec has used it to persecute English speaking citizens living in that province with Bill 101.
That's the Coles notes version. If you're just visiting and you don't run afoul of the law, you have little to fear.
Regardless, in the end, its probably best to ignore the ramblings of ancient old otter...you two need to follow your hearts'. And communicate, communicate, communicate with each other. You'll make the correct decision.
https://xkcd.com/1357/