If tones contain data and data is speech, does that not protect their use for entertainment purposes on free speech grounds?
This seems analogous to the free speech issues over the RSA encryption/decryption algorithms during the 90s.
This seems analogous to the free speech issues over the RSA encryption/decryption algorithms during the 90s.
Words that have the potential to incite imminent lawless action can't rely on free speech as a shield.
https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...
There's also illegal numbers
https://en.wikipedia.org/wiki/Illegal_number
Some math used to be considered a munition and was heavily controlled for export. Some restrictions remain, with advocates for more.
https://en.wikipedia.org/wiki/Export_of_cryptography_from_th...
There's laws that rely on courts to ad hoc determine the artistic validity of work, and thus its restrictions and even legality.
https://en.wikipedia.org/wiki/United_States_obscenity_law
Courts can require you keep secrets or not talk about certain topics.
https://en.wikipedia.org/wiki/Gag_order
You can receive a letter that requires that you surrender information on your customers, but forbids you from telling them.
https://en.wikipedia.org/wiki/National_security_letter
I know not all of those are relevant to this. Just enumerating free speech's cheese holes I can remember to support why I don't think upholding these fines would be hard.
These really aren't "exceptions" to the Free Speech Clause as "freedom of speech" was always a legal term of art. Opinions of precisely what it means vary, even at the time the Constitution was drafted, but it certainly was never equivalent to the mere physical act of communicating. Indeed, speech implies something about the substance and motivation of what's being communicated, which is exactly why performances and many other forms of activity--including abstention--are considered "speech".
More generally, the exercise of any right is always implicitly limited by its effect on others' rights. Here we have a perfect example: the right of the public, through their government, to effectively communicate emergency information in a timely matter would be infringed if anybody could imitate the tones. There's a natural conflict that must be resolved here, and for fairly obvious reasons (even if you don't necessarily agree), it's resolved in favor of the public.
> the right of the public, through their government, to effectively do X via the government would be infringed if anybody could do Y.
Someone could literally substitute anything into X and Y here to justify very bad things. Such as:
> the right of the public, through their government, to effectively forcibly redistribute wealth via the government would be infringed if anybody could refuse to pay taxes.
I know this is a bit of a strawman to illustrate the form of your argument, but the gulf between your statement and my strawmen is a spectrum of X and Y pairs, many of which are legitimately debatable.
Free speech is a negative right, which is a limit on government, which in turn means it cannot be infringed and that it has priority over rights of the government.
However, the rights of others – including the government – are considered when determining the precise meaning and boundaries of "free speech". The courts don't always get this right, but that's what they do. See the usual "fire in a crowded theater" example, which demonstrates not only an appropriate exception to free speech (if taken literally) but also an inappropriate one (if you look at the Supreme Court case it was invented in [1]), both of which were justified by how the speech in question would affect others.
https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...
Saying that it's a negative right only begs the question of what the right actually is. What does "free exercise of religion" mean? In both cases there needs to be an objective, shared understanding of what religion and speech are, and what it means to freely exercise them. Quite obviously the free exercise of religion can't mean anything each individual wishes it to mean. For the same reasons freedom of speech can't mean communicating however, whenever, and whatever by any means you desire.
There's a chapter discussing freedom of discussion in the classic 19th century treatise on English constitutional law, "The Law of the Constitution", by A.V. Dicey. The basic gist is that the author thinks it's a stupid phrase, even though the very concept derives from English legal theory. The TL;DR is basically that in the English conception of government everybody is free to do whatever they want so long as it doesn't interfere with others' rights. Government only intervenes and prohibits activity when it has some legitimate interest, and then it must use a fair means of seeing to that interest. Fair means that, among other things, the government must craft rules of general application that don't unnecessarily single out individuals for arbitrary and capricious treatment. And the executive can only enforce the rules through a separately constituted court system whose basic function is to apply the rules in a fair manner. Likewise for private individuals seeking damages for harm inflicted upon them by others. This is basically Due Process in a nut shell, which all rights in the Anglo-American tradition can be traced back to.
Note that the phrase "freedom of speech" doesn't actually give us any hints about how to gauge the limits of what individuals are free to express, or the limits of how the government can regulate that speech. It's almost entirely context dependent and a function of the extent to which the speech can or does cause harm.
You say that it's a negative right, which I take to imply that we're to construe it as meaning that everything is allowed except when there's justified reasons for not allowing it--an "exception". Well, that's fundamental to Anglo-American law. That's how all rights work in the sense of government's ability to regulate behavior. What Dicey is saying is that there's no need to have an independent concept of "freedom of speech" because for various conceptual and technical reasons we're going to end up applying the same tests as we do for any legitimate government interest and its pursuit generally. And because most speech is essentially harmless--in the Anglo-American tradition we don't consider ideas to be intrinsically harmful--people would naturally have exceptionally wide latitude to say whatever they wished, and the extent and scope of government's legitimate interest would normally be quite narrow. This is actually how it worked in both England and the U.S., at least up until circa 1930s. And, indeed, on the rare occasions we did consider ideas harmful--i.e. communism, incitement to treason, etc--the courts were fairly liberal in permitting government regulation and even censorship.
Arguably the jurisprudence of free speech in the U.S. changed in the mid-part of the 20th century for some interesting reasons. But you could also argue that it didn't change at all, just that that the new jurisprudence was simply more explicit in saying that there's a high bar to meet before we can consider speech harmful. But to the extent there are harmful consequences of the speech, well then naturally the government is free to regulate it, though only to the extent necessary to mitigate the harm.
Contrast that with other rights, like the right to a jury trial. There's no balancing test where we weigh the consequences of exercising that right. You have it, period. For other rights there's more of a grey area. But for freedom of speech, Dicey makes a persuasive point--that throwing around the phrase "freedom of speech" doesn't actually accomplish anything--you're just always begging the question, and you're ultimately going to use generic legal tools and theories to answer the question. Not that I think it's not worthwhile to have it spelled out in our constitution. Americans especially, but also many other countries, do build a complex jurisprudence around the phrase. And it's helpful to be able to put a finger on some specific text when you're resolving a dispute in favor of an individual and against the government, which is pretty much the only reason we have a Bill of Rights anyhow--remember, many people argued it was superfluous and unnecessary.
It's also worth pointing out that though we often claim to hold free speech to be sacrosanct, we rarely bat an eye at the fact that copyrights, patents, and trademarks severely limit the things, including ideas, we're permitted to communicate and how we can communicate them. The FOSS community is maybe more concerned than others, but in any event it's a telling illustration of how we accept that free speech is basically being able to say anything you want to say so long as saying it doesn't impinge upon or "harm" some other legitimate interest--slander, safety, or simply the ability to sell a book at a high markup.
wahern is correct - free speech is a legal term of art.
As such, it isn't "X ... if anybody could do Y". The ability to do X, and the prohibitions on Y, are decided on "strict scrutiny", which is another legal term of art.
https://www.law.cornell.edu/wex/strict_scrutiny - "Strict scrutiny is the highest standard of review which a court will use to evaluate the constitutionality of governmental discrimination." and "To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest."
So the form you should use is: "the right of the public, through their government, to effectively do X = something with a compelling government interest, may prohibit people from doing Y = narrowly tailored action which makes X difficult to do."
"Free speech" cannot be infringed, but not all speech is free speech. Surely you accept that there can be time, place, and manner limits on speech, yes?
Similarly, there are strict rules on who may use the Red Cross symbol, because of the compelling government interest in following the Geneva Convention.
That’s not true in the sense that free speech is not absolute and never has been. Not all speech is protected by the constitutional directive, which is what others are trying to help you understand.
https://en.m.wikipedia.org/wiki/Freedom_of_speech
Make special note of the 3rd paragraph that lists more than a dozen categories of speech to which free speech protections do not apply.
> Someone could literally substitute anything into X and Y here to justify very bad things.
Laws are historical artifacts made by people, they are not math or logic. Though people usually try hard to make them consistent, they cannot be deduced or extrapolated from first principles.
It's merely a call to attention and then you need to listen to and process the subsequent message. The tone itself does not create a clear and present danger, but the subsequent message may.
There's no notion of panic or stampede with this tone, it only communicates "hey, listen up, there's something that may be important for you to know about". I'm sure that many of those living in America on HN have been subject to EAS messages that were not of serious concern since it's used pretty liberally for even minor concerns like a tropical storm.
It's also worth know about the Supreme Court case (Schenck v United States) that lead to Oliver Wendell Holmes, Jr's opinion that lead to this legal test, since the issue at hand in that case would most likely be protected by the 1st amendment today. Furthermore, Holmes eventually reversed his position in Abrams v United States.
https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...
No reasonable person would look at any of the examples where a fine has been issued over use of the EAS signal and conclude that any of those artistic statements were even close to creating a clear and present danger.
False alarms can create a danger because they condition people not to take an alarm seriously.
Even if people are pretty conscientious about treating alarms as if they are real, very few of them will continue doing so against peer pressure.
That'd be a stronger argument if the EAS and its predecessor the EBS were not broadcast with sufficient regularity that people approach such messages with some degree of skepticism already.
I was looking over the Wikipedia article for the EAS and I found one illegal broadcast interesting:
> In February 2011, the morning show of WIZM-FM in La Crosse, Wisconsin played a recording of the aforementioned "dead bodies" EAS hack. It inadvertently triggered the EAS on WKBT-DT, relaying both the message, as well as the hosts' laughter
Not even being able to discuss and listen to related primary material of a recent newsworthy event definitely gets into first amendment violation territory.
https://en.wikipedia.org/wiki/Emergency_Alert_System#Tone_us...
47 CFR 11.31 defines the AFSK signal used for transmitting EAS alerts. The encoder settings are unique enough to not be accidentally used in any regular setting. For emergency planning purposes especially in lessons learned post-Katrina, avoiding alert fatigue was deemed by internal & external evaluators as being critical. The cited code section is here: https://www.law.cornell.edu/cfr/text/47/11.31
As for being artistic, sometimes there are boundaries. This is one that shouldn’t be crossed.
The issue would be "an FCC licensed-station broadcasting the tones to the public on the public airwaves in violation of the rules governing their license". The rule is a technical restriction that's a condition of the broadcast license. Very different.