> often there's posts on HN about how the UK and all other Western European countries are totalitarian because they don't have unrestricted free speech
I haven't seen these posts. Do you have an example handy?
> often there's posts on HN about how the UK and all other Western European countries are totalitarian because they don't have unrestricted free speech
I haven't seen these posts. Do you have an example handy?
here's one from earlier in the week: https://news.ycombinator.com/item?id=36000459
they're pretty common, here's another one: https://news.ycombinator.com/item?id=35617773
> often there's posts on HN about how the UK and all other Western European countries are totalitarian because they don't have unrestricted free speech
I don't see that in the comments you cite - nothing related to totaliterianism, unrestricted free speech, or comparison to the US. The comments just look like critiques of some laws related to speech, similar to critiques of US laws. Maybe I misunderstand.
edit:
https://news.ycombinator.com/item?id=28651811
https://news.ycombinator.com/item?id=28523358 (this entire comment section, probably: https://news.ycombinator.com/item?id=28522599)
Something like 95% of criminal cases are resolved with plea deals and not trials, and legal representation from public defenders has very limited resources.
Cash bail results in many people imprisoned without trial: After arrest, the court requires bail. Poor people can't afford it, so they are jailed until trial, which can be over a year. The impacts go beyond the (very serious) loss of freedom: They lose jobs, their family loses income, dependents (children, elderly) lose caregivers.
Judges now, don't need or required to use cash bails, they choose to, they can release people without cash bail now. either into the person's own recognizance, or even into the care of others.
If a judge doesn't feel the person is likely to return to their following court date, and they can't leverage financial burden as a means to insure it, they are likely just to forego the process and hold them.
Source: https://calmatters.org/justice/2021/03/waiting-for-justice/
I'm not sure whether that's good or bad. I guess it depends on what you are accused of.
It really doesn't, at least in a court of law. Although if the police are interrogating you, they will almost certainly try to convince you that it does.
I don't think you're ever required to any answer any questions from the police, whether avoiding self-incrimination or otherwise. You're only required to answer a question in court, and even then only if the answer wouldn't be self-incriminating (or a few other narrow exceptions I think; the concept of the court not being allowed to compel someone to testify against their spouse is a common trope in media, although I'm honestly not certain how accurate it's portrayed). You also aren't required to take the stand when accused of a crime; while you can choose to do so, you're also free to just have your lawyer make your case via the questioning of witnesses instead of having to answer questions directly yourself.
That said, my understanding is that you're _not_ allowed to plead the 5th if the answer wouldn't actually be self-incriminating, so it's a weird thing where you're only allowed to not answer a question by essentially stipulating that you _did_ do something illegal that would be disclosed if you answered truthfully. If they can prove you weren't actually avoiding answering due to self-incrimination but plead the 5th anyways, I'm pretty sure you can be charged with contempt of court. Having never been on a criminal jury, I can't say I know exactly how it would play out in deliberations, but it's hard for me to imagine that it doesn't affect things at all; even if a jury isn't technically allowed to consider it an admission of guilt, from a legal perspective pleading the 5th seems pretty explicitly either a non-legally-admissible admission of guilt or a crime of contempt of court in itself, so I don't see how the law isn't basically forcing the jury to conclude that you've committed a crime one way or another. The question would then boil down to which of the two crimes the jury thought you had committed (the one you were accused of or contempt of court), and while they're not supposed to be deciding the question of the latter, it seems likely that the jury's view will be tainted by this.
Of course, all of this only applies if you did actually commit a crime; if you genuinely didn't commit any crimes, you wouldn't be lying under oath when stating that instead of pleading the 5th. The jury still might think you did commit the crime though and are just doubling down on lying under oath to try to hide that, though.
If you choose to plead the fifth, the prosecution is absolutely forbidden from bringing that up the courtroom, much less using it to insinuate your guilt.
Any lawyer in the US will tell you not to speak to the police or prosecutor. At all.
The point is: this case was televised to millions and he STILL questioned it.
Honest question, like blibble, I don't really understand it either?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The key phrase "or abridging the freedom of speech, or of the press".As far as I know, this kind of language is absent from other Western nations. For example, Canada jails people for criticizing those of Islamic persuasion. [0] Note, the article doesn't record what the accused actually said. Here's a wikipedia overview of hate speech laws by country [1], though it is wikipedia, so take it with a grain of salt. Here's a somewhat relevant piece from Reason that takes an anti-hate-speech stance [2] where the author details the unconstitutionality of hate speech laws.
"Free speech" as we understand it in the US is unique in the world.
As far as the restrictions at state and federal level, these are considered unconstitutional, and you'll see a large number of them struck down in various courts across the country. Those in power definitely seek to expand their powers and fortunately we have a law that allows the citizenry to push back against that.
[0] https://www.cbc.ca/news/canada/hamilton/muslim-hate-1.614516...
[1] https://en.wikipedia.org/wiki/Hate_speech_laws_by_country
[2] https://reason.com/2021/05/20/teen-arrested-under-connecticu...
This is what the guy was charged with violating (as per https://hamiltonpolice.on.ca/news/hamilton-police-charge-mal... )
Framing it as "Canada jails people for criticizing those of Islamic persuasion" is disingenuous, as if Canada specifically has laws about some specific religion or faith.
Earlier it was listed "..you also can't harass people, threaten them, defraud them, incite violence, distribute copyrighted information.."
So where are these exceptions innumerated? Just purely from a technical point of view, why can defrauding be made illegal, but hate speech can not?
It actually seems the number of exceptions is quite limited - so I never understood why they were not spelled out explicitly (like in an subsequent constitutional amendment for instance). It seems to undermine the authority of the bill of rights. The original text makes no provision for exceptions...
In the case of fraud, it’s not the speech itself, it’s the part where someone gives you money (or other consideration) under some agreement or understanding, and doesn’t actually get what was promised. There’s nothing intrinsically wrong with what you promised, it’s your failure to deliver.
Threatening people? The illegal part is not that you used words at them specifically, it’s that you caused them to credibly fear for their life and safety. You could just as well do that without words, just standing outside their place with a baseball bat making menacing gestures. Harassment similarly may use words, but the objectionable part is often subjecting them to your words or actions or presence directly, to cause distress, instead of leaving them alone in peace.
“Hate speech” as a problem generally is about the content of the speech itself. You might wish to convince people that others in a group are bad and worthy of being considered bad. Your audience is typically people like yourself, or third parties who you wish to sway, and if you are in a public place you are mostly not following around an individual to be hated, or telling them you are about to do them violence. (If you do, it may in fact be harassment or intimidation.)
In all the cases listed, the speech in question is being used to directly and (at least usually) intentionally harm or interfere with another person. I believe this is a case where looking to the Framers' intent rather than the strict wording of the amendment is worthwhile in determining how best to apply it. It seems obvious that they did not intend to make all forms of fraud and threats legal with no recourse (and I imagine there is some jurisprudence that cites specifics to this effect).
Yelling "fire" in a crowded theater, for example [0]. Another comment in this thread talks about the "clear and present danger" doctrine that came from the case. That case was followed by the Brandenburg v. Ohio [2] case in 1969, which instituted the current methodology used for determining what is "allowed" speech. That rule/methodology is called the "imminent lawless action" rule.
[0] https://supreme.justia.com/cases/federal/us/249/47/
[1] https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...
You can be charged with a crime if you knowingly, falsely yell "fire!" in a crowded theater and someone gets hurt as a result.
The case you linked is not actually a ruling on whether you can do this.
In reality, the phrase was an analogy used to justify the conviction of a man who committed the heinous crime of… making and distributing leaflets opposing the draft in World War I. So for all the high minded rhetoric in the First Amendment, it may not provide all that much protection if your speech inconveniences the government sufficiently.
One might also be tempted to draw inferences from the fact that Schenk, the man whose speech was considered not worth protecting, was a socialist pacifist, while Brandenburg, whose free speech was considered more worthy of protection, was a KKK leader promoting violence against Blacks and Jews. In the US, protecting the civil rights of Nazis has become a litmus test of civic virtue across the political spectrum. Unfortunately, that protection is extended far less vigorously and consistently to other political views.
https://en.wikipedia.org/wiki/Schenck_v._United_States
https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
https://en.wikipedia.org/wiki/National_Socialist_Party_of_Am...
First, every court of appeal can strike down a law as unconstitutional. The Supreme Court is only special in that there is no further appeal.
Second, case law absolutely determines the interpretation of each text, and each court is mildly bound by its own precendent (via stare decisis), and completely bound by the precedent of superior courts.
Third, there is no tension between these facts and people being judged individually and being equal before the law. The law must (in principle) be applied equally to everyone.
Any federal court, not just the courts of appeal.
Not even the historical claim holds, as constitutional protections for free speech in France and Sweden predate the American constitution.
> For example, Canada jails people for criticizing those of Islamic persuasion
He was arrested, presented to court, and acquited. Therefore he was not "jailed". Also: the charge was inciting/organising a hate crime, in the wake of a killing of a Muslim father and his 15-year old daughter, not "criticising those of Islamic persuasion".
Don't be a liar, it doesn't help your argument.
True, but we don't know what the man actually said. So whether the charge was true or not remains solely decided by those policing speech.
> He was arrested, presented to court, and acquited.
Thank you for pointing this out. I should have been more careful in my reading of the source material.
A court found him guilty for "groepsbelediging", insulting a part of society, which is a crime. He did not get a punishment.
That's the only example that comes to my mind of something that the courts found not allowed in the Netherlands.
It is a very powerful tool to shut up adversaries and it is extremely harmful for real opinions and real free speech.
But they may also have no hate towards other ethnicities or desire their deaths. If pressed, they might even say that their vision of a "pure" society isn't worth the deaths of minorities that would come about if they tried to implement it.
I think too often we confuse the stereotypical example with the definition. The stereotypical white supremacist hates minorities, but the definition itself doesn't require it (I know of no surveys that would tell us what proportion of white supremacists match the stereotype).
My whole point is that you (and many others) are using a new definition of "hate" which doesn't match the old one. "Hate" used to be an emotion, a feeling, a dislike of something and a wish to see it destroyed.
One can feel superior to something without having any dislike of it or a wish to see it destroyed. I consider myself superior in many respects to the rocks in my back garden, but I neither dislike them nor wish them destroyed.
A supremacist may consider themselves smarter or prettier or taller than some other group, but that does not necessarily mean they want to destroy the other group.
Any left-wing should be allowed, any right-wing stuff should be denied.
Few exceptions exist on the western side, Spain is probably the most remarkable case. Reason why you wouldn't often hear much about what happens there, unless it is something negative to bash the right-wing people there.
It comes across as very dishonest.
There are people who genuinely think the Holocaust was exaggerated or didn't happen at any substantial scale who bear no ill will to Jews, seeing it simply as a question of historical fact of limited relevance to the modern day.
I would really recommend doing a cursory, bare-minimum reading of the associated Wikipedia page [0] and citations. Plenty of historians revise the events surrounding the Holocaust to provide less biased and more nuanced information. Very different from taking an assumption as fact (the holocaust did not happen) and working backwards from that.
Why not just say "we ban speech that says the Holocaust didn't happen"? Why get it classified as hate and then because somehow hate is censorable get it autocensored? It seems somehow disingenuous.
The only reason people deny it is because of anti-semitism.
What does the word "hateful" mean? The old meaning is "full of the emotion of hate". Someone who thinks the Holocaust wasn't real could in theory have no strong feelings about it and think it has no relevance to their lives.
It is not required by definition that Holocaust denial is hateful (using traditional definition of the word "hate"). Nor is it required by human psychology (for example, you could have someone who read an unfortunate sampling of books as a child and took "disbelieve anything the victors of a war say about their enemies" as gospel and never got educated on the details).
"I don't hate them! I just think they got a bit worked up over a few arrests. They're too sensitive. I don't blame them for it, but when you deal with them you've got to remember they can be prone to distorting the truth."
Come _on_
> As far as I know, this kind of language is absent from other Western nations. For example, Canada jails people for criticizing those of Islamic persuasion.
The US is not unique in having constitutional protections of free speech. For example part of the Canadian constitution is the "Canadian Charter of Rights and Freedoms", which forms part of the Constitution Act 1982. Section 2 of which says "Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;" – that's essentially saying the same thing as the US First Amendment.
In Europe, article 9 of the European Convention on Human Rights (ECHR) protects "Freedom of thought, conscience and religion". The Convention is quasi-constitutional in nature – while it is an international treaty whose members are in theory free to leave at any time, in practice quitting it is impossible for many European countries–membership in the ECHR is a requirement for EU membership, so no EU country is going to get away with denouncing it. And many national constitutions have equivalent provisions, such as articles 4 and 5 of the Basic Law of Germany.
One difference – the text of the US constitution doesn't contain any exceptions to the 1st Amendment, whereas the Canadian constitution, the ECHR, Germany's Basic Law, etc, explicitly state that freedom of speech/etc can be subject to limitations. However, in practice, even though the US constitution never explicitly says that the 1st Amendment has exceptions, the Supreme Court has always held that it does, although the scope of these exceptions has varied due to the evolving opinions of the Supreme Court – for the first century of the US's existence, SCOTUS allowed sweeping exceptions to the 1st Amendment; in the 20th century, it narrowed the allowed exceptions significantly, and developed some highly complex case law on which exceptions are allowed.
The real difference is actually nothing to do with the text itself, it is all about case law – since the 20th century, SCOTUS has been very strict in only allowing quite limited exceptions to the 1st Amendment. Courts in Canada, Europe, etc, have always been much more liberal in allowing exceptions to the right of free speech. Now, possibly the difference between a text which provides no explicit exceptions versus a text which does may have influenced that, but I don't think it was decisive. It was not historically inevitable that SCOTUS would start interpreting the 1st Amendment much more strictly in the 20th century, if different justices had been appointed, it easily could have decided to stick with its 19th century case law which allowed greater exceptions to it. Conversely, even though Canadian/European/etc texts explicitly mention exceptions, their courts could have chosen to interpret those explicit exceptions far more narrowly, producing a result much closer to that of the US, if they had wished to do so.
Canadian law on is nowhere near as protective as the US. Defamation has a much lower standard there.
Defamation with public figures in the US is next to impossible to win. That's not true in Canada.
However, there is one interesting difference – under Australia's uniform national defamation law (adopted in 2005), corporations cannot sue for defamation. (There is an exception for small businesses, with less than 10 employees.) So, the recent Dominion vs Fox News lawsuit would have been impossible in Australia.
E.g. german constitution is quite similar:
``` Article 5 [Freedom of expression, arts and sciences]
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour.
(3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution. ```
(2) notes that there _are_ limits, but if I understood the concept of gag orders and also wolverine876's answer correct, thats the same for the US:
``` Civil rights, including those in the First Amendment, are not absolute. Regarding speech, you also can't harass people, threaten them, defraud them, incite violence, ```
In comparison, Nazi symbols are protected hate speech in the US. [2]
The US has tried to ban political parties in the past but eventually courts find that sort of thing unconstitutional. [3]
[1] https://en.wikipedia.org/wiki/Strafgesetzbuch_section_86a
[2] https://en.wikipedia.org/wiki/Bans_on_Nazi_symbols#United_St...
[3] https://en.wikipedia.org/wiki/Communist_Control_Act_of_1954
When you free speech is restricted still seems pretty arbitrary to me [shrug].
They're a response to being sued. If a lawsuit is clearly bogus, you can get it thrown out extremely quickly and the other side usually has to pay your attorneys.
Not all states have them and not all states that have them, have good ones.
Anti-SLAPP suits are filed by the person who said the thing. And yes some states have good anti-slapp protections but that means the rest of Americans don’t enjoy that freedom.
“Police say the man targeted people on social media and promoted hatred against them after an attack in London, Ont., in June, where four members of a family were killed.”
Does that sound like criticism to you? It reads like harassment to me.
^1 In 1990 we got a law called the Bill of Rights Act which included freedom of expression.
Edit: added ^1
Rights afforded by a state are restrictions on a state's power over its subjects. But as the state holds ultimate authority, the only way these rights are upheld in practice is through a system of self-imposed indirection and bureaucracy that mostly exists to limit the power of any one individual operating the state, rather than the state as a whole.
The First Amendment means whatever the state wants it to mean. The Supreme Court can make a case-specific ruling one way or another but it intentionally holds no direct power. A police officer can literally get away with killing you if they can construct a scenario that gives them sufficient justification to do so. The problem with intelligence agency is that by necessity they have less red tape holding them down and they're thus in practice far less limited in how much power they can wield.
States are authoritarian and oppressive by default. They're only held back by self-imposed limitations. But those limitations only exist at the behest of the states themselves. Try and openly plan to dismantle a state (using violence or not) and most states will abandon any pretense of freedom of speech in a second.
That's all true and should be true, but it's also possible to take these limitations too fare, and we have.
Free speech means you can express and advocate for any view point, not that you can make any sounds with your mouth in any context.
For example, someone could not express the viewpoint that 'thebigwinning sexually assaulted coworkers and stole money at their last job'. It would slander you (an exception to free speech that I omitted in the GP) and you would be entitled to damages.
Nor could someone express to an angry crowd the viewpoint that 'the bigwinning should be assaulted', nor could someone selling cryptocurrency express the viewpoint that 'cryptocurrency is a safe, stable investment for unsophisticated investors', etc.
> sing loadly in a movie theatre.
Perfect example. Inappropriately making sounds with your mouth, not holding an illegal belief.
> express to an angry crowd the viewpoint
The issue is the context of the angry crowd, not the content of beliefs. Do you believe the US will penalize me for believing crypto currency is safe and stating that publically?
> thebigwinning sexually assaulted coworkers and stole money at their last job'
They are indeed allowed to believe that. They can't be taken to jail for holding that view of me. Now if they tried to get me fired with false evidence that would be a problem. If they caused damage to my business reputation without evidence that could result in civil damages.
We are talking about speech, not thought - expression, not belief. You said "you can express and advocate for any view point", not that 'you can believe any viewpoint'.
Yes, all speech depends on context. The significance of speech is its impact on other people; it is communication. You can say whatever you want in the shower.
This is more about private property rights, is it not? You can sing loudly in a park until local ordinances (noise, curfew) kick in.
The "movie theater" example I'm familiar with is that you can't scream "fire" in a crowded place.
the fire one is basically anything that incites panic can get you into legal hot water, and if there are injuries or death as a result some form of manslaughter charges probably because ultimately you were responsible.
good point
>threaten them
You absolutely can. It just has to be nonspecific. "Kill all lannisters" is fine. "Kill x lannisters in y mall at z time" is not. See : Brandenburg v Ohio, Schenk v US, Hess v Indiana.
>interfere with others' activities (sing loudly in a movie theater),
lmao what? You can absolutely do that. the theater will kick you out but you can absolutely not be arrested for it. what an absurd claim.
>you also can't harass people
You can absolutely do that, to a degree.
>distribute copyrighted information that isn't yours
Not really related to 1A
>Private entities such as your employer can restrict your speech in many ways.
That's not 1A. 1A specifically applies to the government.
So the First Amendment is basically just the demo. And other western countries, oft criticized, just didn't have as nice a demo as that, but offer more or less the same features and gameplay.
Not great, but not terrible (jail).
It's nice to say "all speech should be free!" in theory but then, when faced with a situation where a mob boss says "please go kill that person" or ringleader whips up a mob into a riot. Should a judge just say "well, he was just exercising his First Amendment rights!" and ensure no consequences befall that person?
A person enters my home and says things I find offensive. Should the First Amendment prevent me from removing that person from my home for that reason?
I decide to leak trade secrets of my employer for profit. Should the First Amendment protect me from being fired and sued for this?
Isn't that covered by actual murder (or conspiracy to commit murder if it isn't seen through) charges, unrelated to free speech?
>A person enters my home and says things I find offensive. Should the First Amendment prevent me from removing that person from my home for that reason?
Isn't that covered by the right to invite (or throw out) whatever guest you want at your home? You have the same right even if they don't say things you find offensive, heck, even if they just tell you pleasant things...
>I decide to leak trade secrets of my employer for profit. Should the First Amendment protect me from being fired and sued for this?
Isn't that covered by copyright law (or similar)?
The point wasn't "practical limits to free speech" regarding a "mob hit" request or some non-existant and never argued obligation to let people in your house if they speak lest you prevent them from expression (?), but how more abstract (or open to interpretation) restrictions can be used to effectively limit actual free speech.
Not to mention "private entities such as your employer can restrict your speech in many ways", like a not so uncommon case of you saying something they don't like on your (unrelated to work) personal social media, in which they can just fire you. Or the social medium itself can censor you.
Making the FA protections kind of moot, in a time when it isn't the government that has to do the censoring anymore, while the public just gathers on 3-4 tech behemoths platforms.
> Isn't that covered by the right to invite (or throw out) whatever guest you want at your home?
> Making the FA protections kind of moot, in a time when it isn't the government that has to do the censoring anymore, while the public just gathers on 3-4 tech behemoths platforms.
I don't understand your points. You're both mixing concerns and splitting them, seemingly at random.
Here's the Cliff Notes version:
The examples you brought up as arguments to why free speech can't be absolute (which I didn't argue for in the first place) are contrived and unrelated to free speech.
They are also already covered by existing laws, such as laws against conspiracy to commit murder, about the right of exclusion, etc. If anything I'm separating concerns, mixed up for no good reason.
As for my statement about FA, it's pointing how its protections are rendered moot, since they don't apply to private businesses and thus don't protect speech (the kind that matters, not mob hits) in places where the public discourse really happens nowadays. So, it's not "sufficient free speech protection" anymore.
I added it to further the discussion, what with FA being the very topic of this subthread, and not some randomly "mixed concern"...
The First Amendment supersedes law by determining whether it can be law at all, so whether it's covered by "law" is actually only half the story.
> The examples you brought up as arguments to why free speech can't be absolute
I started with deliberately stupid examples to make my point: Free Speech was always clearly limited, by necessity.
> it's pointing how its protections are rendered moot
That in itself is debatable. What evidence do you bring that this is somehow worse than it used to be? It used to be the case that, to get _any_ significant speech, you had to get your work published. Now you can just shoot it off on Twitter, Reddit, HN, take your pick.
Which is neither here, nor there. Conspiracy to commit murder, as per the "mob boss gives an order example" would always be illegal regarless of our "free speech" stance, and the First Amendment didn't come into play determining whether that "[could] be law at all".
It was rather the other way around: the First Amendment was drafted with the certainty that such a thing isn't about free speech and will always be illegal.
This isn’t really backing up your point that the First Amendment isn’t sufficiently protecting free speech.
With the mob boss example, wouldn't the charge be something like conspiracy to commit murder rather than prosecuting the instruction itself? i.e. saying the words is not in itself illegal, but the intention to conspire to get the person to commit crime on your behalf is the illegal part and the instruction is evidence.
Absolutely, it is. However, I interpreted the comment I replied to as suggesting the First Amendment is not sufficient free speech protection.
Fun fact: Europe actually has better protections for free speech for employees. Even if you're a hardcore Nazi taking part in actual Nazi rallies, unless you're wearing company clothing or are a high-ranking corporate official, you can't get fired for that. And when you, say, contribute to an open source project in your non-work time on your own computer, your employer doesn't get any rights to that code.