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Bill of rights discussion: free-speech

EMNofSeattle

EMNofSeattle

No Russian ever called me deplorable
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I hope to start a little discussion about starting a bill of rights in our Constitution. Obviously not binding but I'm just trying to bounce off some ideas and hopefully generate some discussion. I do not expect this particular issue to be controversy old and it should be easy to resolve it.

I am copying Oregons model free speech protection, which do to court decisions I have found is in my opinion the strongest in the country.

Bill of Rights, Article 1

No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.

To me this is strong language that seems non controversial
 
I think it is too specific, which could be used to repress forms of expression that aren't covered. For example, is an abstract dance performance protected? Arguably not.

"but every person shall be responsible for the abuse of this right."
Does that mean that unpopular opinions or forms of expressions that annoy or offend people can be crimes or actionable?

My attempt:
No law shall be passed, nor any governmental action taken, limiting free expression, including, but not limited to, speech, writing, performance and works of art, unless a particular expression creates substantial material harm to others. For the purposes of this amendment, material harm may not include annoyance or offense.

Legalistic wording, but it should be airtight with minimal interpretation required.
 
Hard Truth said:
I think it is too specific, which could be used to repress forms of expression that aren't covered. For example, is an abstract dance performance protected? Arguably not.

"but every person shall be responsible for the abuse of this right."
Does that mean that unpopular opinions or forms of expressions that annoy or offend people can be crimes or actionable?

My attempt:
No law shall be passed, nor any governmental action initiated, limiting free expression, including, but not limited to, speech, writing, performance and works of art, unless a particular expression creates substantial material harm to others. For the purposes of this amendment, material harm may not include annoyance or offense.
Click to expand...

Yours is great too, I c&p oregons provision because courts in oregon have held that language so broadly it even protects pornography Which amendment one does not
 
EMNofSeattle said:
Yours is great too, I c&p oregons provision because courts in oregon have held that language so broadly it even protects pornography Which amendment one does not
Click to expand...

Thanks.

The first amendment should protect obscenity, it does protect most porn.* Obscenity laws are exceptions to the first amendment wrongly allowed by the Supreme Court.

There is no fact-based or logical argument against obscenity, Much of the justification was based on what might happen if it was widely available. Now that it has been widely available for over forty year (and especially so since the internet) and the sky still hasn't fallen, it is not justifiable without a religious or other highly subjective justification.

*The only way to know which particular porn is obscene in a particular jurisdiction is to get arrested.
 
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Free-speech should entail our humanely ways of communicating with each other, be it our voices, our thoughts written out, texted, painted, etc and our movements. Movements does not imply touching another person. Obviously, a person yelling, "He's got a gun," or "I smell gas," or "Fire," in a crowded place when there is no gun, no gas and no fire is problematic and leads often to catastrophic injury to both people and property. Furthermore, the publishing of material either spoken or written that is not of a person's own intellectual property or is of an untrue nature intended to damage a person's character should similarly be touched upon.
 
Jango said:
Free-speech should entail our humanely ways of communicating with each other, be it our voices, our thoughts written out, texted, painted, etc and our movements. Movements does not imply touching another person. Obviously, a person yelling, "He's got a gun," or "I smell gas," or "Fire," in a crowded place when there is no gun, no gas and no fire is problematic and leads often to catastrophic injury to both people and property. Furthermore, the publishing of material either spoken or written that is not of a person's own intellectual property or is of an untrue nature intended to damage a person's character should similarly be touched upon.
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Freedom of speech ought to protect speech (even in the "cry wolf" scenarios). In some circumstances crying wolf may do no harm. The focus should more context and intent basis.

There should be absolute protection of speech. The crimes of fraud, etc should be addressed and not just merely speaking. There are plenty of crimes that involve human speech yet we dont think of them legally as pertaining to freedom of speech. You can legally say whatever you please but if doing so breaks a law then those laws would be where you get in trouble.
 
Hard Truth said:
I think it is too specific, which could be used to repress forms of expression that aren't covered. For example, is an abstract dance performance protected? Arguably not.

"but every person shall be responsible for the abuse of this right."
Does that mean that unpopular opinions or forms of expressions that annoy or offend people can be crimes or actionable?

My attempt:
No law shall be passed, nor any governmental action taken, limiting free expression, including, but not limited to, speech, writing, performance and works of art, unless a particular expression creates substantial material harm to others. For the purposes of this amendment, material harm may not include annoyance or offense.

Legalistic wording, but it should be airtight with minimal interpretation required.
Click to expand...

I would add one additional phrase to include something to the effect that freedom of speech does not disallow establishment of speech codes within branches of government, commerce, media, and/or public or private organizations. In other words, if the boss says you can't cuss or display pornographic images or whatever, then you can't do that with impunity. And will we allow the federal government to continue to prohibit obscenity from being broadcast across state lines?
 
AlbqOwl said:
I would add one additional phrase to include something to the effect that freedom of speech does not disallow establishment of speech codes within branches of government, commerce, media, and/or public or private organizations. In other words, if the boss says you can't cuss or display pornographic images or whatever, then you can't do that with impunity. And will we allow the federal government to continue to prohibit obscenity from being broadcast across state lines?
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A constitution only regulates the government's behavior so private sector workplace rules do not need to be addressed. In my view, the current first amendment and my proposed version (post#2) reasonably allows workplace rules in government settings also because employees conduct is routinely restricted in many ways in the workplace and there is quantifiable harm from workplace harassment etc.

The government never should have allowed to regulate the content of the broadcast media in the first place. The old 'pervasive' influence argument was never sufficient justification in the past, and certainly isn't true now,
 
Hard Truth said:
A constitution only regulates the government's behavior so private sector workplace rules do not need to be addressed. In my view, the current first amendment and my proposed version (post#2) reasonably allows workplace rules in government settings also because employees conduct is routinely restricted in many ways in the workplace and there is quantifiable harm from workplace harassment etc.

The government never should have allowed to regulate the content of the broadcast media in the first place. The old 'pervasive' influence argument was never sufficient justification in the past, and certainly isn't true now,
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That is a reasonable argument EXCEPT that one state, that wants a standard of decency, cannot control what is broadcast from the next state. So it could be argued, in the interest of the general welfare, that a certain standard of decency will be mandated for all broadcasted material. Otherwise, the federal government should have no control over content.

And the reason I personally want it specified and clarified that what is required of or restricted to the federal government does not extend to the states is that those lines have been seriously blurred by the courts, opportunistic politicians and lawyers and activists for far too long. We can't trust them to go by a general understanding that is not clearly spelled out.
 
Hard Truth said:
I think it is too specific, which could be used to repress forms of expression that aren't covered. For example, is an abstract dance performance protected? Arguably not.

"but every person shall be responsible for the abuse of this right."
Does that mean that unpopular opinions or forms of expressions that annoy or offend people can be crimes or actionable?

My attempt:
No law shall be passed, nor any governmental action taken, limiting free expression, including, but not limited to, speech, writing, performance and works of art, unless a particular expression creates substantial material harm to others. For the purposes of this amendment, material harm may not include annoyance or offense.

Legalistic wording, but it should be airtight with minimal interpretation required.
Click to expand...

does a 12 year old getting ahold of child pornography constitute harm?

how about the same kid getting ahold of hustler?

where does offensive stop, and harm begin?
 
AlbqOwl said:
That is a reasonable argument EXCEPT that one state, that wants a standard of decency, cannot control what is broadcast from the next state. So it could be argued, in the interest of the general welfare, that a certain standard of decency will be mandated for all broadcasted material. Otherwise, the federal government should have no control over content.

And the reason I personally want it specified and clarified that what is required of or restricted to the federal government does not extend to the states is that those lines have been seriously blurred by the courts, opportunistic politicians and lawyers and activists for far too long. We can't trust them to go by a general understanding that is not clearly spelled out.
Click to expand...

The Bill of Rights applies to the states and all other levels of government, so individual states do not have a legitimate right to restrict content. The general welfare does not depend on or need government to protect people from being annoyed or offended.
 
gdgyva said:
does a 12 year old getting ahold of child pornography constitute harm?

how about the same kid getting ahold of hustler?

where does offensive stop, and harm begin?
Click to expand...


Child pornography is rightfully banned because creating it requires harming a child. A child accessing does not usually cause harm. It is the responsibility of parents to control the media and content that there children access.
 
Hard Truth said:
I think it is too specific, which could be used to repress forms of expression that aren't covered. For example, is an abstract dance performance protected? Arguably not.

"but every person shall be responsible for the abuse of this right."
Does that mean that unpopular opinions or forms of expressions that annoy or offend people can be crimes or actionable?

My attempt:
No law shall be passed, nor any governmental action taken, limiting free expression, including, but not limited to, speech, writing, performance and works of art, unless a particular expression creates substantial material harm to others. For the purposes of this amendment, material harm may not include annoyance or offense.

Legalistic wording, but it should be airtight with minimal interpretation required.
Click to expand...

This is pretty good; adding "performance" to the Oregon one might also work.

Because this includes material harm, things like shouting "fire" when there isn't one - and causing a stampede that kills people - would not be allowed. (this happened in the 1900s during a labor organization's Christmas party - a bunch of children died in the ensuing rush to flee the building).

I assume slander/libel laws will still be upheld under the "material harm".
 
Hard Truth said:
The Bill of Rights applies to the states and all other levels of government, so individual states do not have a legitimate right to restrict content. The general welfare does not depend on or need government to protect people from being annoyed or offended.
Click to expand...

I disagree that the Bill of Rights was INTENDED to apply to the states and all other levels of government. It was intended to restrict the powers of the federal government only. Which is why the federal government did not interfere in any way with the little theocracies and rigid Puritan rules that existed in some of the colonies at the time the original Constitution was adopted.

And I will fight hard for a new and improved Constitution that recognizes and secures the rights of the people to govern themselves and choose for themselves what rules and policies they will live under. If the people of Mayberry USA do not want Hustler magazine openly displayed or sold within their city limits, they should not be required to allow it. If Deadwood doesn't want any restrictions put on such things, that would be their right. But the federal government cannot dictate where and how Hustler magazine can be sold. But it should have reasonable jurisdiction over obscene content on the airways because neither Mayberry or Deadwood can control that.

Admittedly the tricky part is in the definition of obscene and restrictions in what the federal government is allowed to rule as obscene.
 
AlbqOwl said:
I disagree that the Bill of Rights was INTENDED to apply to the states and all other levels of government. It was intended to restrict the powers of the federal government only. Which is why the federal government did not interfere in any way with the little theocracies and rigid Puritan rules that existed in some of the colonies at the time the original Constitution was adopted.

And I will fight hard for a new and improved Constitution that recognizes and secures the rights of the people to govern themselves and choose for themselves what rules and policies they will live under. If the people of Mayberry USA do not want Hustler magazine openly displayed or sold within their city limits, they should not be required to allow it. If Deadwood doesn't want any restrictions put on such things, that would be their right. But the federal government cannot dictate where and how Hustler magazine can be sold. But it should have reasonable jurisdiction over obscene content on the airways because neither Mayberry or Deadwood can control that.

Admittedly the tricky part is in the definition of obscene and restrictions in what the federal government is allowed to rule as obscene.
Click to expand...

And I have always felt that the constitution gives rights that the states CAN'T override. The first amendment means states can't restrict freedom of speech either. States can't discriminate on race because of the equal protection in the constitution. A state can't keep women from voting, because the federal constitution overrules them.

At the time the constitution was written, compromises had to be made because - as you said - some states had rigid rules they didn't want to give up. But we're at a very different time and place now.
 
paddymcdougall said:
And I have always felt that the constitution gives rights that the states CAN'T override. The first amendment means states can't restrict freedom of speech either. States can't discriminate on race because of the equal protection in the constitution. A state can't keep women from voting, because the federal constitution overrules them.

At the time the constitution was written, compromises had to be made because - as you said - some states had rigid rules they didn't want to give up. But we're at a very different time and place now.
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It is true that there are some basic rights/powers that the Constitutions confers upon the citizens that the states cannot override. Who can vote for President or on other federal matters is one of those rights. But the federal government should leave it up to the people to otherwise determine what the voting rules and regs will be in their respective states.

We either trust the people to govern themselves in their own best interests, or we do not. We either believe the people must have a central power that dictates what society must be and how it must conduct itself, or we do not. What is in the existing Constitution should certainly be considered with a very critical view--what are the benefits each clause has produced? What are the pitfalls? If the clause has proved its worth, we can adopt it in the new version. If it has produced unintended confusion, conflict and/or problems, then let's do it better in the new version.
 
AlbqOwl said:
I disagree that the Bill of Rights was INTENDED to apply to the states and all other levels of government. It was intended to restrict the powers of the federal government only. Which is why the federal government did not interfere in any way with the little theocracies and rigid Puritan rules that existed in some of the colonies at the time the original Constitution was adopted.

And I will fight hard for a new and improved Constitution that recognizes and secures the rights of the people to govern themselves and choose for themselves what rules and policies they will live under. If the people of Mayberry USA do not want Hustler magazine openly displayed or sold within their city limits, they should not be required to allow it. If Deadwood doesn't want any restrictions put on such things, that would be their right. But the federal government cannot dictate where and how Hustler magazine can be sold. But it should have reasonable jurisdiction over obscene content on the airways because neither Mayberry or Deadwood can control that.

Admittedly the tricky part is in the definition of obscene and restrictions in what the federal government is allowed to rule as obscene.
Click to expand...

I disagree. Having the civil liberty protections of the Bill of Rights is a defining characteristic of the United States. Without those protections of our rights our government is no better than any other. No government should have the power to restrict our basic rights, without them the people have no power. Having the ability to vote etc. is useless if the candidates can not speak freely or the voters can't access the information they need to make an informed choice.

Having one's rights change every time you cross a state border could create all sorts of unnecessary and inconvenient complications. Imagine the difficulty of dealing with law enforcement if crossing the state border changes all the rules regarding your right to privacy. (searches) Or finding that your religion is banned in one particular state, requiring one to remove a bumper sticker. Also, the people in a smaller geographic area are more likely to act against the rights of an unpopular minority. With nation-wide human rights protections petty local feuds and small town prejudices are less likely to create harm.


I believe where one lives should not determine the rights that a person is entitled to. If the people of Mayberry USA do not want Hustler magazine openly displayed they should stop buying it or go to another store. If they really feel a need to control what other people can read they can even organize a letter writing campaign or a boycott of the store.
 
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Hard Truth said:
I disagree. Having the civil liberty protections of the Bill of Rights is a defining characteristic of the United States. Without our rights our government is no better than any other. Having one's rights change everytime you cross a state border could create all sorts of unnecessary and inconvenient complications. Imagine the difficulty of dealing with law enforcement if crossing the state border changes all the rules regarding your right to privacy. (searches) Or finding that your religion is banned in one particular state, requiring one to remove a bumper sticker.


I believe where one lives should not determine the rights that a person is entitled to. If the people of Mayberry USA do not want Hustler magazine openly displayed they should stop buying it or go to another store. If they really feel a need to control what other people can read they can even organize a letter writing campaign or a boycott of the store.
Click to expand...

What is your objection to the people having the sort of community they wish to have? The kind of place to live that conforms to their values and is satisfying to them?

I can see a standard placed in a Bill of Rights or the body of the Constitution that would prohibit a local government from discriminating against one and not another. But so long as Mayberry bans all 'girlie' mags, then there is no discrimination. If Mayberry doesn't want to allocate space or permits for any churches that would be their right. But if they let the Catholics or Presbyterians in, they have to let in everybody.

There is always a way to protect everybody's unalienable rights while accommodating the right for each state or community to have the sort of society they wish to have.
 
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AlbqOwl said:
We either trust the people to govern themselves in their own best interests, or we do not.
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People govern in their own best interest, but they do not govern in everyone's best interests. Minorities (not just racial, but religious, cultural and political minorities) need strong protections for their basic rights otherwise "democracy" (representative or not) becomes the proverbial "two wolves and a lamb voting over what to have for dinner."
 
Hard Truth said:
I disagree. Having the civil liberty protections of the Bill of Rights is a defining characteristic of the United States. Without those protections of our rights our government is no better than any other. No government should have the power to restrict our basic rights, without them the people have no power. Having the ability to vote etc. is useless if the candidates can not speak freely or the voters can't access the information they need to make an informed choice.

Having one's rights change every time you cross a state border could create all sorts of unnecessary and inconvenient complications. Imagine the difficulty of dealing with law enforcement if crossing the state border changes all the rules regarding your right to privacy. (searches) Or finding that your religion is banned in one particular state, requiring one to remove a bumper sticker. Also, the people in a smaller geographic area are more likely to act against the rights of an unpopular minority. With nation-wide human rights protections petty local feuds and small town prejudices are less likely to create harm.


I believe where one lives should not determine the rights that a person is entitled to. If the people of Mayberry USA do not want Hustler magazine openly displayed they should stop buying it or go to another store. If they really feel a need to control what other people can read they can even organize a letter writing campaign or a boycott of the store.
Click to expand...


some rights will have to be federalized

others should stay at the local/state level

take Utah...with their predominantly Mormon population

I have zero issue if their laws say you cant sell/buy alcohol, or tobacco in that region

I dont know if they do....i have heard it is a dry state

But shouldnt states be allowed to make their laws based on what their citizenry wants or doesnt want?

Communities should be allowed the same.....

As long as those laws dont go against the basic human rights laws that will have to be federalized
 
AlbqOwl said:
What is your objection to the people having the sort of community they wish to have? The kind of place to live that conforms to their values and is satisfying to them?

I can see a standard placed in a Bill of Rights or the body of the Constitution that would prohibit a local government from discriminating against one and not another. But so long as Mayberry bans all 'girlie' mags, then there is no discrimination. If Mayberry doesn't want to allocate space or permits for any churches that would be their right. But if they let the Catholics or Presbyterians in, they have to let in everybody.

There is always a way to protect everybody's unalienable rights while accommodating the right for each state or community to have the sort of society they wish to have.
Click to expand...

A ban on girlie magazines discriminates against people who want to read girlie magazines. Communities do not have a right to tell people what they can see, write, read or hear. Without freedom of expression all other rights are useless.
 
gdgyva said:
some rights will have to be federalized

others should stay at the local/state level

take Utah...with their predominantly Mormon population

I have zero issue if their laws say you cant sell/buy alcohol, or tobacco in that region

I dont know if they do....i have heard it is a dry state

But shouldnt states be allowed to make their laws based on what their citizenry wants or doesnt want?

Communities should be allowed the same.....

As long as those laws dont go against the basic human rights laws that will have to be federalized
Click to expand...

A right to buy alcohol is not in the constitution, so states can do what they want. States can generally regulate as they want as long as they don't violate the rights of individuals specified in the constitution.
 
Hard Truth said:
I disagree. Having the civil liberty protections of the Bill of Rights is a defining characteristic of the United States. Without those protections of our rights our government is no better than any other. No government should have the power to restrict our basic rights, without them the people have no power. Having the ability to vote etc. is useless if the candidates can not speak freely or the voters can't access the information they need to make an informed choice.

Having one's rights change every time you cross a state border could create all sorts of unnecessary and inconvenient complications. Imagine the difficulty of dealing with law enforcement if crossing the state border changes all the rules regarding your right to privacy. (searches) Or finding that your religion is banned in one particular state, requiring one to remove a bumper sticker. Also, the people in a smaller geographic area are more likely to act against the rights of an unpopular minority. With nation-wide human rights protections petty local feuds and small town prejudices are less likely to create harm.


I believe where one lives should not determine the rights that a person is entitled to. If the people of Mayberry USA do not want Hustler magazine openly displayed they should stop buying it or go to another store. If they really feel a need to control what other people can read they can even organize a letter writing campaign or a boycott of the store.
Click to expand...

You seem to be suggesting that a people left to govern themselves in their own interests will govern poorly while a government given dictatorship powers will govern well. History does not support your suggestion.
 
Hard Truth said:
A right to buy alcohol is not in the constitution, so states can do what they want. States can generally regulate as they want as long as they don't violate the rights of individuals specified in the constitution.
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This forum is not dedicated to what is in the present Constitution. This forum is dedicated to writing a new and presumably a better one that will avoid some or all of the pitfalls in the existing one.
 
Hard Truth said:
A ban on girlie magazines discriminates against people who want to read girlie magazines. Communities do not have a right to tell people what they can see, write, read or hear. Without freedom of expression all other rights are useless.
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It does not in the least discriminate against anybody. It does not suggest that everybody cannot go read girlie magazines anywhere they want elsewhere. It only suggests that the social contract of that community excludes girlie magazines or whatever the people don't wish to have to deal with whether that be open saloons or strip clubs or dog fights or casinos or pyramid schemes. Liberty is the ability to live as we choose and not as somebody else thinks we should.
 
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