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Comment by huntertwo | Hacker News Reader

I don't think it's a question of the medium but a question of the actor doing the censoring. If the feds mandate the censoring on a private medium, I don't think it makes it legal. I think one difference is the enforcement, Google can't censor an individual universally, just on their platform, whereas the government can enforce it universally with force/jail/etc.

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Unfortunately, it becomes virtually universal when a small set of massive companies (with similar censorship ideas) control 99% of all our communications and social media.

I think this evades the spirit of the legal protections here, at least.

Note: I'm not disagreeing with you, and don't really have a solution here. Just pointing out how the current situation feels like dangerous territory.

Ironically, I think one promising solution is the Fediverse.

Or, more generally: given how subjective ideas about acceptable speech are, the only real solution is to break up giant gatekeepers like Google.

> If the feds mandate the censoring on a private medium, I don't think it makes it legal

FCC regulation of TV broadcast comes close, but apparently obscenity isn't protected under the First Amendment (perhaps you can tell I'm not a lawyer, or for that matter an American).

https://www.fcc.gov/consumers/guides/obscene-indecent-and-pr...

Yeah, there is this vague idea that the First Amendment doesn’t apply to certain categories of speech (yelling “Fire” in a crowded theater is the classic example) that get stretched to fit this sort of thing.

And of course, the infamous fire in a crowded theater argument was first coined as a rationale for punishing pamphleteering against the draft: https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...

It's a problem with the drafting – the original authors always meant for there to be exceptions, but decided not to specify explicitly in the text what those exceptions were going to be – thus leaving it up to the courts to decide in practice what exceptions are allowed and what are not.

The obscenity exception was largely non-controversial until the 20th century, because there was a broad societal consensus, among both popular and elite opinion, that obscenity and pornography did not deserve First Amendment protection. It was only in the 20th century that societal consensus broke down, and it was in that context the US Supreme Court decided to reduce the scope of that exception. (It still exists, and is still occasionally enforced.) The original authors and ratifiers of the First Amendment supported laws against obscenity, and didn't believe the First Amendment prohibited them.

Ultimately the courts have to decide what laws mean, even constitutional laws – but they could always have given them more guidance, by being more explicit in the text about which exceptions are valid and which are not

How did that shift in attitudes about obscenity happen?

A super-interesting question that is also an invite for people to flog their own personal theories. People will tell you lots of reasons: increasing incomes, the development of ubiquitous media, increasing diversity, weakened religious control mechanisms, etc.

There is probably at least a little truth to each of those, although I think many of them are also effects of central causes (e.g., religious control over common people's lives declined because of increasing incomes, which increased due in part to advances in communications tech).

Potter Stewart knew it when he saw it.

Of course, being in a crowded theater violates social distancing guidelines, so now you don't need to shout anything :-)

I assume the reason for that is that the FCC grants a government-protected monopoly on wireless spectrum to a single entity. In the granting of a monopoly, they also demand extra "protections", in much the same way that there are regulations on other monopolies.

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