Neil Gaiman: Why defend freedom of icky speech?
journal.neilgaiman.com
journal.neilgaiman.com
The question, for me, is even if we only save ONE child from rape or attempted rape, or even just lots of uncomfortable hugs from Creepy Uncle Dave, is that not worth leaving a couple naked bodies out of a comic?
This kind of argument comes up all the time in mostly unsupportable "save the children" heart string--tugging arguments (and others), and it is a dangerous and nasty kind of argument that should always be addressed.
"If we only save ONE child, shouldn't we do X?" is equivalent to "let's just assume that even the tiniest positive outcome has more value than any possible negative ones." This isn't really an argument at all; it's a premise concerning the relative values of various outcomes, masquerading as an argument. Moreover, it's stated in a way intended to shame anyone who disagrees with it.
"Even if we only save ONE child", "even if we only stop ONE terrorist", and their ilk smack of dishonesty and intellectual laziness. Sound public policies require careful consideration; arguments such as these are mental roadblocks, nothing more.
(/sarcasm)
And on the other hand, what if leaving these naked bodies in a comic saves TWO children? Would you trade one for two to satisfy your dislike of pictures on paper?
So, the person crying out for reason feels ashamed, and the person asking for a ridiculous zero-tolerance solution feels righteous. Again.
Obviously these perfectly reasonable rhetorical devices also assume that law is framed in terms of utilitarianism rather than inviolable principles[1], and unlike Gaiman assumes that one can do so because those enforcing the law are capable of using enough discretion to determine whether the sentence does more damages than the alleged crime. Either way, I don't think Gaiman's "they used to ban X and even Y on similar grounds, and look where that got us" is a more sophisticated argument.
[1]I think even people defending "icky" things on the basis of "inviolable" rights or principles have a threshold of "ickiness" where it starts conflicting with other inviolable principles they believe in. Presumably most of those who defend objectionable fantasy on the grounds of freedom of speech and expression don't consider the principle so inviolable it cannot be curtailed it when Creepy Uncle Dave moves into teen chatrooms to freely voice his opinion that teens should freely express themselves on webcam for him
And also that I think that prosecuting as "child pornographers" a 16 and 17 year old who were legally able to have sex, because they took a sexual photograph of themselves and emailed it to themselves is utterly, insanely wrong, and a nice example of the law as blunt instrument.
The even more frightening thing is that there are public prosecutors with this view.
Speech is free, period. Once you try to put any restrictions on then the whole thing isn't even a slippery slope, its a frictionless cliff.
[1] http://www.washingtonpost.com/wp-dyn/content/article/2011/03...
I don't disagree with the justifications behind protecting speech, even (and especially) things that I find reprehensible. However, I think it's a bit of a lie to say that law doesn't have fine lines or distinctions.
Now with that said freedom of speech is a special law. And obviously one that cuts both ways. But a key reason why the law should largely exist untampered is that even if you say something I think is offensive, I can rely on a few things:
1) If it's absurd it will be discarded by most people.
2) If it's absurd those people it would convince, probably already believe it.
3) With freedom of speech I can argue the point prior to irreversible damage.
Now there are some cases where freedom of speech don't apply and those are generally cases where the three points above don't apply. For example, the classic of yelling "Fire" in a crowded room. Someone else yelling, "there is no fire" is not likely to be heard and even if "Fire" is seemingly absurd, most people may not discard due to potential harm. Yada yada.
But outside of cases that violate the above, the law should stand. Otherwise the consequences, shutting down opposing speech, will almost certainly be worse.
And yet the various flavors of creationism (all equally absurd by measures of science) have convinced half of the U.S. of their validity.
The issue though isn't a link between speech and action (PE coaches don't violate this although their barks usually directly create action). It's the link between speech and furthering a specific crime.
There is a strong argument against exercising the freedom of speech the way they do. The right to speak freely should not trump the right to stop listening. This is not the case here. Whoever attends the funeral has their right to stop listening seriously limited.
Just as if you announced "mikeryan is going to hell! the Fag!" while chainsawing live babies you're committing a crime. The expressing of your opinion is not a crime, but the fact that you're expressing your opinion doesn't exempt you from other criminal liabilities.
no. I'm not a lawyer, yet i'm pretty sure that what WBC does wouldn't fit harassment criteria. I suppose for the harassment the specific action needs to be targeted at the person being harassed. Without specific targeting, they just express their opinion, wrong opinion at the wrong time and place, yet not illegal.
But by my reasoning, the difference would be legal precedents stating that pickets are legal (irrespective of what you use them to promote) and repeated unsolicited telephone calls are not (irrespective of what you say).
Once you're onto them, they become incredibly easy to ignore, or counter-troll if that's your game. Doing everything you can to piss them off, while still remaining within the bounds of the law, tends to send them scurrying to their next funeral.
If I called you 500 times and simply said "Hello, hello, hello", that is still harassment. The WBC people apply for permits and protest on public property. What they say isn't relevant.
In general, your actions and intent are more germane than the content of your speech. That's a concept critical to free speech -- controversial or offensive is far more important to protect than typical conversation.
The difference is a small, but visible and under appreciated line between free speech and verbal assault.
There is situations when one fundamental right conflicts with another fundamental right. Your statement is that the fundamental right of free speech must always take precedence.
I see how fundamental right of a child for the privacy of his/her body [ note: a child can't give an informed consent to waive the right ] can be given priority over somebody else's fundamental right for free speech.
Unfortunately, in the case of fetish animal torture videos the Supreme Court took the side of the scum.
I don't think the consent argument holds water. We force children to do things without their consent all the time. We make kids go to school. Corporal punishment of children is legal in most states, both by parents and teachers. Children usually don't consent to such things, but we do it them anyway.
Sorry for nitpicking one thing out of your comment, but the "children can't consent" argument really gets to me.
There are certain activities that, by various state and local laws, require consent. Entering into a contract or getting married, for instance. A minor legally cannot consent to these things.
That doesn't extend to everything a child may do or be forced to do.
The law recognizes a wide variety of restrictions. See http://en.wikipedia.org/wiki/Freedom_of_speech_in_the_United... for a few.
For a view that "There is no such thing as free speech" see Stanley Fish, etc.. http://www.australianhumanitiesreview.org/archive/Issue-Febr...
"You can say what you want, but we tell you where to say it."
EDIT: That being said, the US still has a very high bar for freedom of speech.
As it should be. All sorts of things that don't deserve to be protected by Freedom of Speech. For example, treason often takes the form of selling out your country with information- which is just Speech after all.
(This seems in fact quite appropriate to me, because then the punishment is proportional to the extent to which the general misused the privileges given to him. If he was new to the job and they didn't show him much of anything, then they have little to complain about him breaking their trust; if he's spent ten years getting his fingers in all their data with their conditional permission, and now they realize they shouldn't have allowed him, then they have a lot to complain about.)
The case of shouting "fire" in a crowded theater can be handled similarly: Customers agree not to do that sort of thing as a condition of being allowed into the theater, and if they break that, then they are guilty of trespass. You might complain that the customers didn't agree to any such thing, and that implicit contracts are bad. Fine, then the theater can put up a sign that says "You are not allowed to falsely shout 'fire'". As a matter of fact, I have seen many fire alarms in large buildings with a sign that says something like "$NNN fine for spurious triggering of this alarm".
The point is, there is no need to count any of these situations as cases where freedom of speech breaks down. These things can be illegal without allowing any chinks into your free-speech armor; they can be punished, not because they're an illegal form of speech, but because of something else.
Not that I disagree with your premise, but an issue with this is that people like to see punishment that fits the crime - I'd expect public outrage over a misdemeanor prosecution for an infraction that may result in loss of life.
As a matter of fact, I have seen many fire alarms in large buildings with a sign that says something like "$NNN fine for spurious triggering of this alarm".
Those fines are actually due to local ordinances. As such they are an example of government imposition on individual freedom in order to protect the public, and are a bit of a counter-example to your point.
If someone got stomped to death in a stampede triggered by someone's cry of "fire", methinks the person or people who did the stomping would have a lot to answer for. You shouldn't do that even in a real fire. The only difficulty is that it may be hard to identify the culprit(s) if everyone was busy panicking about their own escape routes; and I can see how a mob, with no other targets available, might place all blame on the original "fire"-shouter.
But perhaps this "loss of life" thing is an incidental flourish, and your main point is that people, responding legitimately to a fire alarm (not stomping on people), suffer a lot of inconvenience (they drop whatever they're doing and evacuate), and the "fire"-shouter is responsible for all that and perhaps should pay for it. I agree with that. I don't see a problem with assigning a large punishment to the simple crime of trespass when the trespass has large consequences.
Suppose I gain access to a Toyota plant and press a few buttons or rearrange a few materials in such a way that a batch of several cars comes out ruined. I haven't done anything beyond simple trespassing, but I am responsible for thousands of dollars of property damage, and I can be made to pay for it, right?
So either this is a case where a trespass is a huge crime; or I can be considered responsible for massive property destruction, even though I just pressed some buttons or rearranged stuff (possibly without realizing the implications of my actions), and even though it required the actions of other people in the assembly line to completely carry out the destruction. (In the latter case, what makes me guilty and the others innocent is that I committed a crime--trespass--and they didn't.) These choices seem largely equivalent to me; the former has the drawback that you can no longer hear "trespass" and think "Oh, ah, trespass, a misdemeanor, with maximum punishment X", but perhaps this could be remedied by calling it "trespass causing major property damage". Either way, I think something similar could be made to apply to the case of a false fire alarm.
Those fines are actually due to local ordinances. As such they are an example of government imposition on individual freedom in order to protect the public, and are a bit of a counter-example to your point.
Interesting. I didn't know that. Still, couldn't you call it a form of trespass and still punish it with a fine of approximately that magnitude (see above for further discussion)?
Sure you could get a fine for trespassing, or even imprisonment, but since it's a criminal offense it's at the discretion of the prosecuting jurisdiction rather than the establishment. On the other hand, the trespasser could probably be held civilly liable for damages by the establishment directly.
In fact, going back to the theatre example, I suppose the person who yells fire and causes a stampede could just as well be held liable for injury or wrongful death in a civil suit by the affected individuals, rather than reckless endangerment or manslaughter in a criminal court.
In the end, though, we'd also have to consider the cost and effort involved in individuals conducting civil suits vs. the convenience of having the government handle investigating and prosecuting it as a criminal offense.
Vandalism? Sabotage? You've done more than just trespass if you've interfered with anything in such a way as to cause damage (deliberately or otherwise).
If we were to apply it with no exceptions, there would be NO EXCEPTIONS, and no other laws, rules or agreements would be able to overrule it.
If the U.S. military requires its generals (as a condition of their employment and their access to top-secret info) to not give away top-secret info, and it prosecutes those who break this agreement, this is clearly not Congress making any kind of law and therefore is not prohibited by the above, so in fact a perfectly strict and literal interpretation of the First Amendment would conclude that this is totally legitimate.
I would like it to be illegal for a news organization or an advertisement to lie to or mislead the public.
If you survey 1000 doctors, and 4 say yes, you better not put "4 out of 5 doctors surveyed" in your ad.
Free Speech means that law shouldn't punish communication.
If you write a hate filled article then free speech protects you from lawyers. It does not force your employer to continue employing you, your neighbor to continue smiling at you, or your grocer to continue to sell food to you.
It means government won't persecute you. It does not mean everyone else must treat you the same way as they did before you said anything.
It also does not mean people have to listen to you, or that you've a right to use others property to deliver your message.
"There are more love songs than anything else. If songs could make you do something we'd all love one another."
--Frank Zappa
Speech shouldn't be censored but individuals should choose wisely what they decide to surround themselves with. Thought is father to the deed and the media is actually about implanting ideas and emotions in people -- we should choose carefully that which we let through.
Everyone chooses what to surround themselves with. Perhaps it would be better if people didn't choose quite so narrowly to only listen to the voices they agree with, and try to diversify their surroundings/inputs a bit more. If we all paid a bit more attention to the cultures and interests of other people, perhaps we'd be less inclined to distrust and dehumanise others.
I apologise if I'm assuming/misunderstanding things, but I genuinely don't understand what you are trying to argue for here. Watching horror films evidently doesn't make people do horrible things, so any link between the content of media and its effects on people can't be that simplistic.
Although that's true in a general case, you're making a false dichotomy. All in or all out. However the people who want to ban music are not making claims about specific general moods. They are saying "These words cause people to be killers". They are taking your preposition "music affects feelings" and turning it up to 11.
Classic
"The Reichskulturkammer forbade artists such as Edgar Ende and Emil Nolde from purchasing painting materials. Those who remained in Germany were forbidden to work at universities and were subject to surprise raids by the Gestapo in order to ensure that they were not violating the ban on producing artwork; Nolde secretly carried on painting, but using only watercolors (so as not to be betrayed by the telltale odor of oil paint)"
If you accept -- and I do -- that freedom of speech is important, then you are going to have to defend the indefensible.
Freedom of speech is only valuable when you're willing to accept disgusting, offensive, gross and revolting speech (within limits, i.e. inciting violence comes to mind).
Arguments against bigoted -, racist -, fanatical -, etc. speech should be won on the merits of the argument and not with the sledgehammer of the law.
This is, of course, not totally black and white and it's not an absolute. If you, however, value this freedom it should go a very long way before laws can be employed to stiffle such speech.
If you think the government should suppress an idea the only reason must be that you personally cannot reasonably consider the concept. Banning a subject because you cannot fathom talking about it means you must be willing to impose your internal and personal morals on others, by force if necessary.
edit: While I clearly remember this coming up in at least one of the cases involving DeCSS where a defendant made the argument that their use of DeCSS didn't infringe copyright because they were restructuring the DVD to not play the copyright notices and ads before the copyrighted movie would play, and the MPAA's counter argument that such a change violated the movie studio's 'commercial speech' rights such that the they had produced the DVD and made certain promises to people who had paid consideration and that changing the product like that involved changing the copyrighted work as a whole. The MPAA likened it to re-arranging the order of the scenes in a movie. However searching for a citation in the usual places has yet to yield a docket id, so I withdraw the following statement :
"The whole 'commercial speech' doctrine where a company has an first amendment right to which is violated by me skipping their commercials on a DVD doesn't sit well with me at all."
There are/were services that would make edits of existing films to take out the "naughty bits" and repackage them for sale as a family friendly edit of the original film. These derivative works were not authorized by any of the original copyright holders and the censoring services lost the case (Clean Flicks of Colorado, LLC, et al. v. Steven Soderbergh, et al.) This particular case probably hinged more on how the first sale doctrine worked for digital works, but there were copyright issues raised and the judge did find that the edits were not protected by any fair use claims.
From censoring out tits to skipping commercials is a jump, and this would probably only be applicable to making and distributing copies of dvds that cut out any of the annoying warnings/ads/"coming attractions" (e.g. adding this ability to players or distributing the edits and jumps via an additional channel would not be covered) but it is a precedent to consider...
What about the children that will suffer because a potential child rapist that was was in check because of his lolicon use now has no material to direct his fantasies towards and now needs to look for the real thing? Really, as long as no one get's hurt, what is it with people wanting to shut down everything they regard as obscene or offensive to them when they know that their view is merely an opinion and there are millions of people that think differently?
Ohh think of the children, do we really want our future (our children) to live like robots being told what they can and can't do, what to read and what they can't, where to go and where it's forbidden? It's sad that everything that has to deal with sex is always attacked without mercy by the 'Association of Housewives and Househusbands with nothing else to do with their Time'. Seriously let people live their live's as long as they're not hurting anybody else in the process, and while we're at it, let's defend free speech...
"you only realise how wonderful absolute freedom of speech is the day you lose it."
"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. ”— Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964), regarding possible obscenity in The Lovers.
I call bullshit. I agree, defend freedom, but it's the same with terrorism, if not worse. There has to be intervention to judge it. Somehow that seems to be done better than say the software patent system. Terrorists are being held, or watched, by ways that shouldn't be legal, because what they did isn't illegal, just so very near. Immoral text/images, software patents and terrorists actions all have blurry lines we will take some time to sharpen.
You have to be biologically screwed in the head to rape children or kill people for pleasure. I don't know why people create an impression that average Joe could enjoy 8 year old kid if given a chance.
The lives allegedly saved by suspending liberties should be weighed against all the lived taken by the dictators, who are made more likely as we eat away at the foundations necessary to establish our rights.
Certain restrictions on freedom of speech exist, notably regarding hate speech against any group based on ethnicity, race and creed, and since 2002 also against sexual orientation. Some notable recent cases are Radio Islam and Åke Green.[citation needed]
Saying that all speech has to be completely free no matter what is a bit fundamentalist. Stuff in the real world is grey, not black or white.
Clearly a stupid, offensive app, but it looks like "icky speech" to me.
The problem is that what speech is "icky" depends on the person, and if you ban "icky" speech then you'll be banning all sorts of things others do not find icky. Apple has also removed apps that were basically soft-core porn. But for me, a "gay cure" app is far more offensive than a "girls in bikinis" app, but other people clearly feel the exact reverse.
When you reduce the world to speech which no one finds offensive, then you find yourself using Newspeak, in which you can't communicate meaningfully at all because every offensive thought and image has been eliminated.
If you don't believe in the freedom of "unquestionably wrong" speech, then you don't believe in freedom of speech.
You're suggesting that there's an absolute concept such as "wrong" speech, and that you're somehow capable of defining and legislating that.
I will note that Australia (if I understand it correctly) recently decided that all cartoons are kiddie pron. So if you see a cartoon depiction of two people in their 80s getting it on technically you are considered a sex offender.
Also, they recently decided that all pictures of flat chested women (A cup) are kiddie pron, though I am not aware that they have made any arrests over this (they did claim in the last couple of weeks to have made a lot of arrests and broken up a child pron ring with links to 'Europeans' or something equally dangerous and scary - hopefully no one got hit with the blunt stick that is these two obscenely stupid bits of legislation).
As for comics, I've never even heard of what you assert and presume it similarly false. Child pornography in this country is defined differently in different jurisdictions, however the word "minor" is used in all of them. Comics depicting 80 year old pensioners getting steamy would never fit those definitions.
This kind of low-quality meme regurgitation you have displayed has no place on HN.
"The Australian Classification Board (ACB) has confirmed to Somebody Think Of The Children that a person’s overall appearance is used by the Board to determine whether someone appears to look under the age of 18 in a film or publication.
…
Asked whether breast size was considered by the Board when determining age, McDonald said he had no further comment to make."
and also, according to wikipedia:
"Restrictions on the “X18+” category of videos were tightened[10] in 2000 including the restrictions on portrayal of fetishes, and of actors who appear to be minors, including women with a small bra cup size, after failed attempts by the Howard government to ban the category entirely, and then replace it with a new “NVE” category which would have had similar restrictions."
regarding the cartoons:
"In December 2008, a man from Sydney was convicted with possessing child pornography after sexually explicit pictures of children characters from The Simpsons were found on his computer. The NSW Supreme Court upheld[8] a Local Court decision that the animated Simpsons characters "depicted", and thus "could be considered", real people; however the conviction does not extend to other Australian states and was based on solely the pornography laws within NSW. Many have mistaken this as a Federal nation-wide ban which does not exist.[9] Controversy arose over the perceived ban on small breasted women in pornography after a South Australian court established that if a consenting adult in pornography were 'reasonably' deemed to look under the age of consent, then they could be considered depictions of child pornography. Criteria described stated "small breasts" as one of few examples, leading to the outrage. The classification law is again not Federal or nation-wide and regards only South Australia.[10]"
I had a look at some publicly available legal/governmental stuff, e.g. this briefing paper:
http://www.parliament.nsw.gov.au/prod/parlment/publications....
Interestingly, from the statistics at the end, over half of the criminal cases in SA were for producing child porn (s. 63(a) Produce child pornography), but exactly two thirds of the convictions were for possessing child porn (s. 63A(1)(a) Possess child pornography).
Possession was four times more likely to result in imprisonment than production. Possession was 3 times more likely to result in a suspended sentence than production.
I'm absolutely amazed by this. Basically the cops caught a bunch of people producing kiddie porn, and then the courts let them go, whereas possession of porn means you get the book thrown at you. Honestly I would have thought it was the other way around.
It seems (from the briefing) that the legal justification for this slant is that producing child porn harms 1 child, whereas to possess a large collection of child porn is to participate in the harm of thousands of children.
This legal doctrine is particularly interesting (and hard to justify) in the case of cartoons/manga, because there is no actual child being harmed in those cases (though there is justifiable concern about actual movies of real abuses being 'cartoonised' in order to get around restrictions).
In summary:
The actual laws around this are much murkier than I originally thought. Much is left up to the discretion of the censors on a case by case basis, there have been previous attempts to ban small cup sizes (as far back as 2000 or possibly even earlier), there has been a trend towards larger cup sizes in australian porn because of pressure applied by the censors, and the censors refuse to rule out anything to do with cup size. States have different rules than Federal, and in many cases (as in the simpsons character debacle) what happens in a State court may be mis-attributed as being the rule at the Federal level.
Moreover, if you are accussed of possessing kiddie porn in Australia they will throw the fucking book at you (so don't do it (!!!!)). Whereas actually producing kiddie porn in Australia earns you nothing more than a slap with a wet bus ticket in most cases.
I find your accusations and subsequent downvoting rude and baseless. You may not like the sex party, but they are one of the few organisations in Australian politics devoted to transparency in government (for their particular hot-button issue anyway).
Given that there are documented attempts by the Australian government to ban small cup sizes in porn dating back over a decade, I find their accusations much more plausible than your own.