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What is “Unprotected” in the Realm of Free Speech – Do you Agree?

What is “Unprotected” in the Realm of Free Speech – Do you Agree?

The following is paraphrased from the website of the Encyclopaedia Britannica on free speech and its limitations. Some of this was spot on in my opinion, other parts didn’t quite site well with me. In my self serving arrogance, I’ve inserted my comments below.

The First Amendment provides robust protections to American citizens. However, just as the freedom of speech has its vast landscape, there are also certain boundaries that have been historically set. Let’s explore the types of speech that do not enjoy the shelter of the First Amendment.

  1. Incitement: The government can intervene if the speech is aimed at inciting or leading to imminent illegal actions. For example, rallying a crowd to start a riot or encouraging them to attack a building right then and there is unprotected. This was a point of focus in the Supreme Court case Brandenburg v. Ohio (1969), which stated that speech promoting illegal actions at some unspecified future time is, however, permissible. — I agree with this, but only in the respect that “incitement” leads to immediate and unreasoned emotional response. Yes, inciting to riot, or yelling fire in a crowded theater should not be protected. But if you post something on the internet, and people have time to think about their actions, then it should still be protected. A prime example is President Trump being charged with “inciting” when the actions that were taken (not a riot, in my view) were hours later – it short, not runaway emotion, but with time for deliberation.
  2. Defamation: This encompasses spreading false information about someone which can harm their reputation. Written defamation is termed “libel”, while spoken is “slander”. However, it’s worth noting that merely expressing an opinion, no matter how unpopular or morally questionable, cannot be considered defamatory. – yes, this is a good definition – “false” is the key, and knowingly.
  3. Fraud: Lying or making deceptive statements for personal gain or to harm another is punishable. This can include activities like false advertising or misrepresentation. – yes, and this may not be strict enough. Because of a lack of enforcement, too many people get away with too much fraud.
  4. Obscenity: Not everything considered vulgar or indecent is obscene. The Supreme Court, in Miller v. California (1973), attempted to outline what constitutes as obscenity. While the exact definition remains nebulous, the standard has been quite narrow since the 1980s. – I agree with this principle to a great extent. America was founded on Judeo Christian principles, much of which is designed to allow us to raise our children in a moral manner (moral, meaning according to religious or philosophical principles that we consider acceptable frameworks for our children to grow into “good” adults). Since obscenity in public has an impact on our children, a community has the right to restrict it.
  5. Child Pornography: Materials that depict actual children in explicit or suggestive contexts fall under this category and are illegal. Although adult performers portraying children or fictional depictions of minors might not be classified as child pornography, they could still be flagged as obscenity. yes -this is obscenity, with greater impact. It should not necessarily be singled out since it is part of the above, but it is understandable since people believe it is especially heinous. Obscenity is obscenity.
  6. Fighting Words: These are remarks intended to incite immediate violence or retaliation from the recipient. However, broader discussions on subjects like politics or religion, even if they are controversial or offensive, are protected. What is important is the direct provocation for a fight. – We must be very careful with this, I’m not sure I like it. Someone good with words can cause a fight without seeming to go over the line, but someone less intelligent might cause a fight without being able to avoid this definition. For example, a very intelligent woman can easily incite her less intelligent husband/boyfriend into physical violence to her advantage (a la Mike Tyson), so we know this is a principle unevenly applied. On the other hand, if someone insults my wife or girlfriend, I want to feel free to retaliate physically (and ruthlessly…). I’m not sure I know the answer, but I am uncomfortable with this as Constitutional principle without severe limitations and stricter definitions.
  7. Threats: Personal threats of unlawful acts, such as making a death threat, are illegal. It’s worth noting that generic threats or those that aren’t targeted at a specific person or entity might sometimes find protection under the First Amendment, depending on the context. – yes, I would say this is reasonable, however unevenly applied.
  8. Hate Speech: Contrary to popular belief, hate speech as a category is not automatically unprotected. However, if hate speech morphs into threats or fighting words, then it may be punishable. For instance, general derogatory comments about a racial group might be protected, but directly threatening a person based on their race is not. – “Hate speech” is complete BS in my opinion, it is a category designed to especially protect or benefit certain groups, either you have broken a law via the other principles or you have not. Just because a particular group is sensitive is no cause for adding special protective measure. In fact, any special measures taken in favor of a group is taking away rights from everyone else.

The boundaries to free speech as protected by the 1st Amendment are designed to allow the citizens of the U.S. to have maximum freedom without harming each other. These will always be in a certain state of flux and reinterpretation, because that is in the nature of democracy and evolution. Hopefully, the principles as we know them will survive the constant but fleeting cultural influences and continue to guide us as a free country.

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