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Comment by morsch | Hacker News Reader

A recent article on Ars Technica covers a similar story of a guy publishing threatening tweets, but also emails, to science writers and other people (including, finally and by accident, his local police officials).

http://arstechnica.com/science/news/2011/08/crank-who-target...

What I find annoying is the conflation of free speech as a concept and the protected speech rights many nations have to various degrees. Prohibiting threatening emails and tweets clearly is a violation of free speech. That is not the question. The question is: is it an acceptable violation of free speech? Apparently some people feel that any violation of free speech is unacceptable. I'm not sure that they have thought hard enough about other cases of limiting free speech which they take for granted.

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I dislike the term "free speech" because it leads to misunderstandings as to what US (and other) law actually allows. The French, during their revolution, phrased it as "free communication of ideas and opinions"; the universal declaration of human rights says "freedom of opinion and expression". I believe these more accurately convey the idea, and make more clear why certain restrictions on speech are considered acceptable.

It's common to restrict threats and incitements to violence (ideas should be expressed peacefully; their expression should not make a person fear for their immediate safety) and statements that put people in imminent danger (yelling "fire" in a crowded theater). It's also common to restrict defamation and false advertizing (expressing ideas which are not true in order to harm another, either in reputation or in an economic transaction). Restrictions on the "time, place, and manner" of speech are also common -- while you're entitled to express your ideas, you are not entitled to shout them on a bullhorn at 3 AM on a residential street.

My quip is usually "you're allowed to say whatever you like, but you're not allowed to have everything you say heard."

That's a cute quip, but it seems devoid of content.

In the US, at least, you're not allowed to say whatever you like-- there are certain types of speech that are prohibited-- so the first part of your quip is plainly false.

As for the second, I can't for the life of me figure out what it would mean. I can say something, but some unseen force can prevent others from hearing it?

> As for the second, I can't for the life of me figure out what it would mean

If I understand right, it's better phrased as "you do not have the right to have everything you say heard."

E.g.

Making a website about the God Thor: OK, saying whatever you like.

Preaching about Thor on a street-corner: questionable.

Waking up the neighbours early on Thursday to tell them about Thor: over the line. They don't want to hear it then.

I use the verb "allow" rather than "have a right to" for personal reasons, though you're right that in this case they're more or less the same. And since the government doesn't yet have thought-crime technology, the first part of the quip is of the type "you can think any thought you want. You can speak anything in the privacy of your own company, write anything on your home computer." The second part is a recognition that once you bring other minds into the picture, you better watch what you communicate to them. There are plenty of seen forces which will resist your attempts at communication as well, government being just one.

As far as criminal actions, your three examples demonstrate a great set distinguishing the levels for which criminal prosecution should be considered. The first case, people read it if they want to, hard to make a criminal case except for culturally-hated things like child porn. Second case, depends on what the government allows for public demonstrations. Generally, people may be offended as they pass by but there's no real harm done. (Ignoring the possibility of converting everyone who hears to Thor worshipers who overthrow the government in a bloody revolution.) Third case, people are obviously affected in a negative way with their sleeping disturbed. There's another case which the other post mentioned: false advertising, aka willful lying. To me that deserves the most punishment as a class since people can be seriously harmed by believing a lie. (With the obvious exceptions like personal white-lies and consequentialist lies in the common Nazi-hiding example.)

> Generally, people may be offended as they pass by but there's no real harm done

Which reminds me of another quip: "you do not have the right to never be offended."

e.g if the street-corner preachers don't offend you, the atheist billboards will. Suck it up and move on.

> "you're not allowed to have everything you say heard"

Yes. One type of time-place-manner speech restriction is called "captive audience". This limits your rights to deliver messages in circumstances where your audience has no reasonable way to avoid the message.

These include restrictions on selling legal services at accident scenes or in hospital rooms (the person you're selling to can't avoid your sales pitch), broadcasting political or religious messages on public transportation (many have no viable alternative and therefore can't avoid you), or giving a union election speech to a mass assembly of employees on company time (employees would be risking job loss by skipping out.)

You have the right to say almost anything, but you don't have the right to force anyone to hear what you have to say.

Personally, this seems simple. All speech is protected, you should in fact be able to post over 9000 messages in a threatening or harassing manor, whether the medium be twitter or some other online venue. Context is the tricky part, and no law will ever be able to define the posters contextual intent.

It would be too challenging to police resulting in far too many regulations defining what is/isn't acceptable use of freedom of speech.

Where do you draw the line? Twitter, message boards, email, web page, reporters, etc?

Enacted laws will amount to a game of cat and mouse where the cat is chasing every edge case possible. The First Amendment would be reduced to what the USPTO has become; A joke.

If the recipient feels violated, unsafe, or harassed, they should file a restraining order. They should use the tools that we have had at our disposal since the beginnings of law.

Restraining orders put due burden on the complainant, preventing frivolous complaints clogging our legal system, generating a barrier in which there need be noteworthy substance to the claim. If it is truly trivial, the complainant would not bother to take the time and expense ( http://aol.it/rtzBsd ) to file a restraining order, let alone go through the process of possible embarrassment for being what amounts to a crybaby.

Public figures, with their in place legal teams and massive resources must learn to thicken their skin. Unfortunately, it comes with the territory. A sanitation worker has to deal with less than ideal work as a result of the carer choice they made, the same holds true for those in the public space.

I need a little clarification. Are you essentially arguing that you should be able to say anything anywhere, and be judged at an appropriate date for it, rather than "prematurely"?

Hmm, I guess I am. But isn't that how it is now? Does free speech really have any boundaries? Aside from the oh so taboo one about the President, what is it that you can't say without getting into trouble right off the bat?

Say all you want, there may be repercussions, but that is something that will have to be battles out in a court or some other legal manor. At least, that is how I have always looked at it.

Sure, you don;t want to yell "fire" in a crowded building if there is no fire, but telling someone they are an asshole on twitter should be fine. One may take it literally in that you think they are an asshole as in a literal anus body part, which could defame them in some way, which would be something to deal with in the courts.

If you spit out some nonsense about wanting to harm someone on twitter, most would assume it was in jest, or that it was an extreme way of expressions anger or frustration. Most people don't go around making serious claims of causing someone harm in a public forum, they do so in secret so they can get away with it.

Maybe I am overlooking something, but as I see it, we have always been able to have the freedom to say whatever we want, with some very few restrictions that amount to common sense.

I think there is a relatively well-defined, if somewhat broad, line that borders between free speech and harassment.

For example, suppose that I were to write a couple of articles saying what a bad, unreliable programmer you were. Any time someone asked me what I thought of your programming skills, I would tell them that they're lousy and no one should hire you. Further, I go on to Twitter, Google+, HN, and Facebook and make a few comments about what a bad experience I had working with you. Maybe some of the people I know also know you.

In my understanding, that scenario isn't harassment but it is free speech. I'm not making direct personal attacks against you and I'm not threatening you, although I'm not saying great things about you. There might be a case for civil libel there, but it would be a tough argument and would most likely need to be solved in court via lawsuit.

Now lets take that scenario further. I think you're a shitty, horrible human being. Not only do I write a couple of articles about what a bad programmer you are, I go on to talk about how anyone that knows you should kick you in the ass or push you in front of a car. I start finding out background info like where you live, who your family is, what your phone number is. I start giving out all of your personal information. I start calling your house at odd hours, breathing heavy, and hanging up. I do that 20x a night for weeks on end. You change your number. I find out what your new one is. On Twitter, I create hundreds of fake accounts and send you DM's and @'s with some really awful messages. I start dropping indirect hints that I think you deserve to die. I do the same thing anywhere I can find you online.

Now in that 2nd, really fucked up scenario, that's harassment. I get arrested and my lawyer claims that was my free speech. Total bullshit.

So when I say I believe there's a well-defined but broad line it encompasses those two extremes.

I believe the big defining difference is that if I say or do something to you, that's personal. If I say something about you, it leans towards public. There's of course all kinds of ways I can say stuff about you and have it be very personal though.

So I think that issues like this are going to often be on a case-by-case basis because it can cover a range of scenarios. I might say something about you that you feel is harassment while to any 3rd party observer its obviously free speech, and vice-versa.

And, for this particular instance, standing in a room of 20 people, saying things like,

"You are a terrible person. You make puppies cry. Someone should hurt you."

over and over without actually talking directly "to" that person but with everyone knowing who "You" is is harassment. Being in public does not preclude harassment. Not mentioning a person by name does not preclude harassment.

Note: IANAL. Not sure if this is the "legal" definition but it certainly seems like the right one.

that scenario isn't harassment but it is free speech. I'm not making direct personal attacks against you and I'm not threatening you, although I'm not saying great things about you

Your understanding is not correct. You are discussing territory involving slander/defamation laws. Slander and defamation are crimes. The important thing to know about slander/defamation is that, at least in the US it is not considered slander or defamation if it is provably true.

Now in that 2nd, really fucked up scenario, that's harassment

It's a whole host of things, many of which are wholly unrelated to free speech.

It's also not slander or libel if it can't be proven factually (e.g. "He's a jackass" isn't slander because thete's no concrete fact being communicated) or if it seemed likely enough to be true.

(Note: Not a lawyer, so don't take this as legal advice, but I've spent many years in the newspaper industry, where this stuff comes up regularly.)

This is also radically different in the UK, where someone was successfully sued for slander because he pointed out that medical studies indicated certain techniques were ineffective.

This is also radically different in the UK

Hence the "At least in the US..." caveat! I still can't imagine living in a world where truth is not a defense against libel.

where someone was successfully sued for slander because he pointed out that medical studies indicated certain techniques were ineffective.

Who? When? Where? If you're talking about the Simon Singh case then a) Mr Singh won the cases and b) he wasn't sued for claiming the techniques where ineffective, but for claiming the that BCA was promoting techniques they themselves knew where bogus.

UK libel and slander laws may be fucked, but they're not THAT fucked.

Yes, I meant Singh. Unless my memory is badly failing me, the initial trial judge found him obviously guilty — but then he won the appeal. So you're right, I might have given a slightly false impression, but it's not too far off.

The thing is though that the case never hinged on the effectiveness of the treatment, but basically one whether Mr Singh called the chiropractors who performed the treatment naive and delusional (which would be fine) or cynical con men (which would be slander).

Apparently some people feel that any violation of free speech is unacceptable

My favorite counterexample is, do you believe that disclosing state secrets to your country's enemy to bring about the destruction of your country should be protected by free speech?

As a side note, I get the feeling anymore that people trumpeting absolute free speech aren't exactly staunch defenders of Liberty and Justice; they just see a convenient excuse for why it's O.K. to make other people miserable.

>My favorite counterexample is, do you believe that disclosing state secrets to your country's enemy to bring about the destruction of your country should be protected by free speech?

Assuming that you had not signed an NDA or otherwise took steps to grant yourself additional access to information then yes, you have a right to tell whom ever you fucking want.

That is why certain things are kept secret.

There's also the concern of "Born Secret"[1] in US law, at least, which restricts even independent discovery of the 'secret' in question. Mostly famous for the high profile case of United States v. The Progressive [magazine] regarding publication of independently sourced facts and conjecture about the design of hydrogen bombs.

Under something like that, you'd be required to keep something secret despite not having NDAs, access, etc.

[1] https://secure.wikimedia.org/wikipedia/en/wiki/Born_secret

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