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Comment by drfuchs | Hacker News Reader

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> Defendants don't have an absolute First Amendment right to free speech? Who'd have thought?

I believe you're in on that joke, but nonetheless (in case someone isn't): no, they don't. When one is on bail then one has to abide by the restrictions that the bail conditions impose.

Indeed. Who'd have thought I was being too subtle?

It was clear and not subtle, but my pedantry provoked a more substantial response. This is a topic that will likely be in our discussions going forward considering the former US president has so many outstanding charges against him. But that’s a much stickier situation than just a defendants rights to free speech, considering he’s also the leading Republican candidate for 2024 and the situation is largely unprecedented.

The right to free speech never means freedom from consequences of that speech.

I have always found this refrain about freedom of speech vs freedom from consequences to be grating. I can think of only three categories of things a government can do:

1. Prevent the words from being spoken in the first place. This includes things like gag orders, confiscating computers and internet connections, literally gagging someone, or locking them in jail.

2. Delete the words, once spoken, from the public record.

3. Punish the person for having spoken the words. I.e., the consequences. This includes things like deleting their accounts, placing them in jail, confiscating newspapers, burning books, etc.

When the constitution guarantees freedom of speech, which of these categories of actions do you think it restricts?

IANAL, but my understanding is that the government retains the right to restrict speech through all three categories (for national security, prurient interest, integrity of court trials, etc.), but is broadly restricted from having unabridged power in all of them.

Never? What then does the word “right” mean in this sentence? I thought by definition, if you have the right to do something, the authorities cannot punish you for exercising that right.

No, what’s happening here is that SBF is in pretrial custody, and when a defendant is in that situation, they lose many of their constitutional rights. Courts assume the level of control that they need to ensure a fair trial.

Outside of certain circumstances, the 1st Amendment does mean that you are free from official consequences for your speech, such that it is protected. This is why the NYT will never see government sanction for their publishing Caroline’s diary. SBF obviously has, though.

(FWIW, your comment is usually used to defend consequences imposed by other members of society, not the government)

> The right to free speech never means freedom from consequences of that speech.

To the extent that there is a freedom of speech it is exactly a freedom from government imposed consequences for that speech.

(The statement is true in the context of private social consequences, not government punishment.)

OTOH, being arrested for a crime pending trial, even when released on bail, involves a loss of liberty (with due process of law), and that can include, insofar as is necessary for the administration of justice, limits on free speech.

> To the extent that there is a freedom of speech it is exactly a freedom from government imposed consequences for that speech.

Employees of the government are regularly punished for revealing secrets of the government. Threats to others by private citizens are also punishable by the government.

> OTOH, being arrested for a crime pending trial, even when released on bail, involves a loss of liberty (with due process of law), and that can include, insofar as is necessary for the administration of justice, limits on free speech.

Correct, in the same sense that felons can lose their 2nd amendment (and others, such as voting) rights.

> Employees of the government are regularly punished for revealing secrets of the government.

Yes, because of limits on free speech, not becauase speech can be both within the scope of protected free speech but also have government-imposed consequences.

You're free to speak but I'm free to jail and execute you for it?

edit: this is literally no one's idea of free speech.

You, no. The state according to the established laws? Yes. Terroristic threat, for example.

In this case, SBF had voluntarily limited his speech in order to be out of jail for a crime he was already arrested for.

>Yes. Terroristic threat, for example.

This is such an important point. The PATRIOT Act threw protections for citizens out the window in cases of terrorism (no evidence required). DOD requires no trials, no warrants, only notifying judges with an accompanying gag-order and no input or oversight from them (making it illegal for them to divulge suspected abuses) to wiretap or kill anyone. President Obama used a drone strike to explode a 16 y/o boy (a US citizen) in Yemen[0]. This is only one of the cases we know about, and it’s impossible to know the extent it’s been used. I know that’s not the case here, but it is such a huge problem that needs to be fixed legislatively - I felt it necessary to comment.

[0]https://en.m.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Aw...

Keep in mind I'm not talking about the popular definition of "terrorism". "Terroristic threat" is literally telling someone you are going to hurt them or someone else, and existed well before the events of 9/11. It is a crime punishable at the state level.

https://en.wikipedia.org/wiki/Terroristic_threat

Yes it does. Consequences are the only thing you can be free from.

I'm a naturalized American citizen who figured out what free speech actually means when studying for the civics test. I suggest everyone try it out if only to dispel the popular myth of 'free speech means everyone can say whatever whenever'.

No it doesn’t, you can easily be prevented from speaking in the first place.

Are you talking about cutting people's tongues out, or prior restraint? Because you don't know who to restrain if they haven't already said something. As a consequence of things you've said in the past, or things that you have just said and have not yet been distributed, you can have that distribution limited or prevented.

All of them are consequences.

If your point is causality exists, okay.

If your point is that the 1st amendment is an absolute freedom of speech, you couldn't be more wrong.

And in this case he is being prevented from future speech acts, demonstrating another category of things it doesn't protect you from.

They do. But courts can set bail conditions and actions that explicitly ‘shall not be infringed’ can seemingly be infringed upon by those conditions. Judge ruled his actions violated those conditions and changed the terms of his pre-trial detention to be in a public correctional facility instead of at home.

He will appeal and the courts can decide if his rights are being infringed. If he was already locked up and had someone release this info, I doubt the judge would have charged him with witness tampering or intimidation over this, maybe would have warned him. Judge here just revoked his pre-trial bond/changed those conditions, which is within the judges power to do.

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