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Comment by pizza234 | Hacker News Reader

Correct, this is the part of the article expressing this concept:

> Despite Tesla's free speech claim, the US and state governments can enforce laws banning deceptive practices that harm consumers. "Beyond the category of common-law fraud, the Supreme Court has also said that false or misleading commercial speech may be prohibited," a Congressional Research Service report last year stated. "For constitutional purposes, commercial speech is speech that does no more than propose a commercial transaction or that relates solely to the speaker's and audience's economic interests. Accordingly, the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) can regulate deceptive commercial speech without violating the First Amendment."

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https://www.law.cornell.edu/wex/commercial_speech

The very first requirement in the Central Hudson test is that the commercial speech not be misleading. This move from Tesla is either done to waste time or get free advertising. It’s certainly accomplished the latter.

"Elon the free speech warrior"...feels like I've heard this tune before.

Though since its not law, as passed by legislation, this current supreme court, if it got the case and decided to hear it, could just as well throw all this out the window no?

They've proven multiple times they're willing to throw away decades of legal precedent over ideological motives already.

It is interesting how widely Constinution and laws can be interpreted. Why not regulate speech that criticizes the government because it causes harm, seeds distrust in government institutions and misleads voters to make the wrong choice.

A good starting point for understanding First Amendment constraints on government power to regulate deception is the U.S. Supreme Court's declaration of "common ground" in Gertz v. Robert Welch, Inc.:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues.

You can read more about Deception and the First Amendment in this UCLA Law Review article: https://www.uclalawreview.org/wp-content/uploads/2019/09/34_...

Of course the problem is that „fact“ is ill-defined. I am sure Iran will agree with above statement, it’s just that their set of facts is different from those of US judges.

> I am sure Iran will agree with above statement, it’s just that their set of facts is different from those of US judges.

For censoring speech, we have before us two options:

Option A is to ban "mistruths", and to go down the philosophical pursuit of determining what is "fact" and what is fiction, which will change based on milieu, sentiment, those in power, etc., and will be argued endlessly. Then we need to get into "unintended mistruths" vs "intentional mistruths", etc.

Option B is to allow most speech and to only focus on tortious fictions (libel/slander).

I think most sane people would choose Option B. And yes, Iran will disagree with the "facts" of the American populace, as I assume a German will disagree as well :)

You can express it however you like, and say "tortious fiction" for false. Doesn't change that in the end, somebody has to decide what is true and false, and this will always be a matter of opinion. So option A and B are not really different. I am sure Germans would also agree that "most speech" is allowed.

By "tortious fiction" I meant that there's an injured party, hence libel and slander being mentioned. I.e, one can say "mistruths" as long as they don't slander another person and cause them measurable harm.

Option A is eager evaluation. Option B is lazy

It’s not slander if it’s true, right?

Tortious *fiction* means it's not true, right?

To the point of a lot of this discussion, isn't Option A already in operation for most commercial purposes?

Contract law often gets into what is a statement of "material fact" vs. what is a statement of opinion. For example, a company can be sued for a statement like "contains 100% beef" and not for "delicious beef flavor" if the item in question has no beef in it. These torts are different from libel or slander, but they are often upheld in court. Misrepresentations can also be classified into honest mistakes or knowingly committing fraud. I think "most sane people" would argue the ability to sue over false claims of material fact are important commercial regulations.

I think - and this is not well expressed elsewhere, so either I'm on to something, or I'm not - but all these regulations are about potentially harmful truth claims. So libel and slander fall into this; so do misleading advertisements. We want people to speak, but we also want people (and far more so, businesses) to tell the truth.

> Why not regulate speech that criticizes the government because it causes harm

Why not use 1'st amendment to protect financial fraud? If Tesla wins, then you can lie about financial products, shares and bonds. Stock market and pensions will collapse withing a week.

> Why not regulate speech that criticizes the government because it causes harm, seeds distrust in government institutions and misleads voters to make the wrong choice.

The answer is extremely, extremely simple actually: because the outcome of that would be bad, while the outcome of controlling misleading advertising is good.

It really is that simple.

Plenty of people around the world (not me) think it would be good

People in other countries can think what they like, but in America the premise of banning criticism of the government would be extremely unpopular.

Criticizing the government is the key thing this clause should allow. Before that criticizing the king could lead to trouble.

Right, but not here, which is why it's not that way here.

> The answer is extremely, extremely simple actually: because the outcome of that would be bad, while the outcome of controlling misleading advertising is good.

I don't think that is how law should work. For some people the outcome of regulating free speech would be bad, many wouldn't care, and for many people (for example, for the President and his team, some of his supporters, members of the government) it would be great.

There is no such thing as "make something better for everyone". It is always "make better for one and worse for another". For example, if you raise minimum salary there will be people upset with that (people who pay the salary; people who see the prices raise).

Also it would be better if the law would be precise and there would be no need to interpret it in someone's favor.

That is how it actually does work. We elect leaders on the basis of them expressing some approximation of our desired future, they appoint judges who express some approximation of our desired future, everyone is constrained by each other and by each others' believable interpretations of some documents, and example case after example case is brought forth and tested on the basis of "will ruling this way yield a positive outcome for society?" where "outright rejection of the court and legislative system" is considered an intrinsically bad outcome.

> Also it would be better if the law would be precise and there would be no need to interpret it in someone's favor.

Sure would! Unfortunately we have no reason to believe this is even theoretically possible.

Let me guess, you have no problem with fraud laws though, right?

Because that's tyranny? The ability to criticize the government is a core tenant of a free society.

The basic principle is that free speech does not include the right to incite or conspire to commit a crime. Misleading commercial statements falls under that principle, while political opinions generally don't, again as long as they're not e.g. a conspiracy to break the law.

There have been some notable lapses in applying this principle in US history though.

The issue is that you can not make a law/regulation that says statement X about products Y is not allowed because its wrong/misleading. A court has to decide if it is wrong/misleading AFTER the fact and someone sued.

30 Years ago any statement about any modern vehicle feature would have been misleading no one had to preemptively make them illegal. Such "laws" should simply not exists.

>The issue is that you can not make a law/regulation that says statement X about products Y is not allowed because its wrong/misleading. A court has to decide if it is wrong/misleading AFTER the fact and someone sued.

Yes you can, and they have. You might like regulations to work that way, but they don't. The government has appointed agencies to determine what is wrong or misleading, and the authority of those agencies has been backed up by the courts.

Individuals and companies that disagree with specific ruling by agencies do have the right to go to court of course, and have done so.

You seem to have trouble understanding. No one questioned that such stupid laws do in fact exists. I was explaining why they _should_ not.

How on earth do you go from “companies probably shouldn’t be allowed to lie to consumers about product details”

“We should restrict speech against the government”

I don't think it's a serious statement, they're just taking it to a ridiculous extreme to demonstrate the point. Or maybe I completely misunderstood, who knows!

The problem is that “slippery slope” arguments don’t demonstrate anything.

Remember when the USA south kept saying “what’s next, marrying animals?!” With regard to legalizing equal marriage?

This shit doesn’t mean anything because rational people are capable of understanding nuance. So they’re literally just here to say stupid things and waste peoples time because we’re obligated to respond to this stupidity to make sure that nobody confuses lack of response with validity.

The Alien and Sedition Acts kind of were an attempt at that.

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