Comment by robkop | Hacker News Reader

Comment by robkop | Hacker News Reader

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For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier this year, and effectively emboldened more of these laws.

Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.

In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.

The oral arguments are worth watching if you want to understand how to grapple with these questions: https://www.youtube.com/watch?v=ckoCJthJEqQ

On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.

Note: IANAL but do enjoy reading many SC transcripts

Law is a strange and possibly the only aspect in human societies where people are by default assumed to know, understand and follow it to the letter when everybody acknowledges that law is open to interpretation. You cannot in most cases claim ignorance as it can be abused by criminals.

But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.

Strange and destructive. I believe comprehensible law is a human right that is critically underacknowledged. Like, up there with the right to speech and a fair trial.

If you cannot understand the law as it applies to you, you cannot possibly be free under that law, because your actions will always be constrained by your uncertainty.

maybe we’re inching towards rule by law vs rule of law by making things so abstruse that you need a multiyear education to understand what is allowed, when and where.

As the complexity of the world increases this may naturally happen

perhaps it then becomes a matter of policy to periodically reformulate the law so it is compact and understandable and illustrated with examples for the general public. i wonder if llms will be able to do this reliably ever.

Seems to be less of an issue in practice, as the level of detail is pretty clear unless you're operating at the "bleeding edge" of legal understanding, in which case I imagine you can afford to hire someone to figure out the details to you.

Perfect understanding of every law and its consequence is not possible anyway, because laws are meant to be contextual and interpreted by humans, to allow for exceptions in unusual cases (contrast that with the monumentally stupid idea of "law as code", which, if implemented, would grind us all under the gears).

In vast majority of cases, people don't need more certainty than they have or can trivially get, because variance of outcome is low. E.g. you don't need to know the exact amount of dollars where shoplifting turns from misdemeanor into a felony - it's usually enough to know that you shouldn't do it, and that stealing some bread once to feed your kids will probably not land you in jail for long, but stealing a TV just might. And by "low variance" in outcomes I mean, there's obvious proportionality and continuity; it's not the case that if you steal bread brand A, you get a fine, but if you steal bread brand B, you go straight to supermax, right away.

This is not to deny the ideal, but rather to point out that practical reality is much more mundane than picking apart unique court cases makes one think.

It's not about "unique court cases". Surely you must have noticed that whenever someone asks online whether it's legal to do some apparently reasonable but tricky thing, the answer is almost always "ask a lawyer"? How many of those people can actually afford a lawyer?

Do you actually think it's ok for freedom to only exist for people who can afford lawyers?

The answer is "ask a lawyer", because giving legal advice on the Internet is opening yourself to significant legal risk. That's true even if you are a lawyer - hence the "I'm a lawyer but not your lawyer" disclaimer.

Fine. You're still missing the point in favor of a technicality. Why does it have to be this way?

One of the awesome things about the American Constitution is that it's not really written in complicated language. Of course this hasn't made things straightforward or easy.

A corollary to your second paragraph is that you can concentrate power if you keep the masses from understanding it fully or able to practice it competently. This is why passing the bar exam is so difficult. What if most criminals were as adept at fighting their charges as they are at physically fighting? (Meaning: won a healthy percentage of the time). The system is designed to crush people and concentrate wealth and power in the hands of a few.

In the end, we are at the mercy of those with power. Laws are just a way to make their decisions appear fair and appease the masses. If you piss off enough the wrong person with power, it doesn't matter what the laws say, you'll get screwed.

Not quite that simple. Laws legitimise and stabilise those in power. If enough people stop believing in the law, it really threatens those in power.

There are other means to gaining power, of course.

> If enough people stop believing in the law, it really threatens those in power.

I think this is why the thing judges hate the most is people admitting when the law gives them an unfair advantage.

A rule that unjustly benefits someone is fine as long as they don't break kayfabe. Big Brother loves you, that's why you can't install apps on your phone, it's to protect you from harm. The incidental monopolization, censorship and surveillance are all totally unintentional and not really even happening. Oceania has always been at war with Eurasia.

Whereas, declare that you're shamelessly exploiting a loophole? Orange jumpsuit.

I agree, but that's the uncharitable interpretation. The charitable one is that intent matters. Those in power being threatened tends to strongly correlate with societal instability and a distinct lack of public safety. I may not always agree with the status quo but I don't want to live in Somalia either.

"Intent matters" is the dodge.

There is an action you can take that does two things. One, it makes it marginally more expensive to commit fraud. Two, it makes it significantly more expensive for your existing customers to patronize a competitor. If you do it, which of these things was it your intent to do?

The answer doesn't change based on whether you announce it. You can fully intend to thwart competition without admitting it. And, of course, if the only way you get punished is if you admit it, what you really have is not a law against intending to do it but a law against saying it out loud. Which is poison, because then people knowingly do it without admitting it and you develop a culture where cheating is widespread and rewarded as long as the cheaters combine it with lying.

Whereas if the law is concerned with knowledge but not "intent" then you'd have a law against thwarting competition and it only matters what anyone would expect to be the result rather than your self-proclaimed unverifiable purpose.

But then it's harder to let powerful people get away with things by pretending they didn't intend the thing that everybody knew would be the result. Which is kind of the point.

FWIW, laws aren't merely abstract tools of oppression, they're what binds groups larger than ~100 people into societies. And the true fabric laws are made of, is one of mutually-recursive belief, everyone's expectation that everyone else expects they're subject to them. Threaten that belief, the system stops working. The system stops working, everyone starves, or worse.

The way you're supposed to do that is by having laws that are actually reasonable and uniformly applied.

Having laws that tilt the playing field and then punishing anyone who admits the emperor has no clothes is just censorship. People still figure it out. Only then they get rewarded for knowing about it and not saying anything, which causes the corruption to spread instead of being opposed, until the rot reaches the foundation. And that's what causes "everyone starves, or worse."

> And that's what causes "everyone starves, or worse."

I disagree. What you've described is certainly bad for much of society, but it represents a change from full participatory democracy to narrower and ultimately aristocratic governance. Many nations moved away from aristocracy and embraced democracy, but the difference in failure mode between "good for the people" and "good for the nation" does nevertheless exist (even when you can avoid the other problem democracy has, that "good for the people" and "popular" are also sometimes different).

When nobody can even "get rewarded for knowing about it and not saying anything", then you get all the examples of groupthink failure. Usually even this is limited to lots of people, rather than everyone, starving, but given the human response to mass starvation is to leave the area, I think this should count as "everyone starves" even if it's not literally everyone.

When everyone knows the rules are optional, or when they think facts and opinions are indistinguishable, then things like speed limits, red lights, which side of the road you're supposed to be on, purchasing goods and services rather than stealing them, all these things become mere suggestions. This is found in anarchies, or a prelude to/consequence of a civil war. There can be colossal losses, large scale displacement of the population to avoid starvation, though I think it would be fair to categorise this as "everyone starves" even if not literally for the same reason as the previous case.

> it represents a change from full participatory democracy to narrower and ultimately aristocratic governance.

I don't think that's the relevant distinction. "Benevolent dictatorship" is still one of the most efficient forms of governance, if you actually have a benevolent dictator.

The real problem is perverse incentives. If you have a situation where 0.1% of people can get 100 times as many resources as the median person through some minimal-overhead transfer mechanism, that's maybe not ideal, but it's a lot better than the thing where 0.1% of people can get 100 times as many resources as the median person by imposing a 90% efficiency cost. In the first case you lost ~10% of your resources so someone else could have 100 times as much, but in the second case you lost >90% of your resources only so that someone else could have 10 times as much as they'd have had to begin with, because now the pie is only 1/10th as big.

But the latter is what happens when corruption is tolerated but not acknowledged, because then someone can't just come out and say "I'm taking this because I can get away with it and if you don't like it then change the law" and instead has to make fanciful excuses for inefficiently blocking off alternative paths in order to herd everyone through their toll booth, at which point they not only get away with it but destroy massive amounts of value in the process.

> Laws legitimise and stabilise those in power. If enough people stop believing in the law, it really threatens those in power.

Not quite that simple.

If enough people stop believing in the law, the society breaks apart, and you have people shooting each other in the streets trying to loot supermarkets and extend their lives for a week or two, before inevitably dying of starvation.

This is serious stuff. Society and civilization are purely abstract, intersubjective constructs. They exist only as long as enough people believe in them -- but then, it's still not that simple. Actually, they exist if enough people believe that enough other people believe in them.

Money, laws, employment, contracts, corporations, even marriages - are mutually recursive beliefs achieving stability as independent abstractions. But they're not independent - they're vulnerable to breaking if large group of people suddenly start to doubt in them.

It’s not the ideal of the system. We shouldn’t have two tiered justice, the top should be being held accountable.

Adams and Jefferson wrestled with another question. J said generations shouldn’t be tied to the decisions of their ancestors. Adams said but surely laws are necessary to maintain stability and order and preserve their fragile democracy for future generations.

Ideal and reality are rarely in alignment, and reality is what we need to be concerned with.

Reality is short term thinking.

Idealism is long term thinking.

If you disregard reality, you will never understand the world around you to make change.

If you disregard idealism, you will only ever be able to react. You will end up dragged around by the nose, and pulled towards someone elses ideal that might not be so good for you.

Thinking that power is inviolable is an idealism that benefits existing power. They don’t want you to think of the countless times power has been overthrown, and a more just society has been built on the ruins of one with benefits for only those with power.

Occam's Razor - this complexity arises from the human nature to try and build consistent abstractions over complex situations. It's exactly what we do in software too. To an outsider it's going to look nonsensical.

I want to share a thought experiment with you - atop an ancient Roman legal case I recall from Gregory Aldrete - The Barbershop Murder.

Suppose a man sends his slave to a barbershop to get a shave. The barbershop is adjacent to an athletic field where two men are throwing a ball back and forth. One throws the ball badly, the other fails to catch it, and the ball flies into the barbershop, hits the barber's hand mid-shave, and cuts the slave's throat-killing him.

The legal question is posed: Who is liable under Roman law?

- Athlete 1 who threw the ball badly

- Athlete 2 who failed to catch it

- The barber who actually cut the throat

- The slave's owner for sending his slave to a barbershop next to a playing field

- The Roman state for zoning a barbershop adjacent to an athletic field

Q: What legal abstractions are required to apply consistent remedies to this case amongst others?

Opinion: You'd need a theory of negligence. A definition of proximate cause. Standards for foreseeability. Rules about contributory fault. A framework for when the state bears regulatory responsibility. Each of those needs edge cases handled, and those edge cases need to be consistent with rulings in other domains.

Now watch these edge cases compound, before long you've got something that looks absurdly complex. But it's actually just a hacky minimum viable solution to the problem space. That doesn't make it fair that citizens bear the burden of navigating it - but the alternative is inequal application of the law

> The legal question is posed: Who is liable under Roman law?

My question is why does anybody have to be liable at all? Most normal people would consider this just to be a freak accident.

Sure, there's learning points that can be taken from it to prevent similar incidents - e.g. erecting a fetch around the field (why didn't you suggest that the field owner be liable) as it can be reasonably foreseen the situation of a ball escaping and being a nuisance to someone else (maybe it just startles someone on the road, maybe it causes a car crash, whatever), or legislating bars or plastic film on the barber's window, etc.

But here nobody seemed to act in any way negligently, nor was there any law or guidance that they failed to follow. It was just the result of lots of normal things happening that normally have no negative consequences and it's so unlikely to happen again that there's nothing useful to be gained by trying to put the blame on someone. It was just an accident.

> nobody seemed to act in any way negligently

The whole point is that there's a legal system that allows a plaintiff to make an argument that there was negligence at play, and OP outlined a logical list of examples of how it could be argued up to the government itself being negligent for zoning. It's the job of the legal system to remove the ambiguity of "seemed", particularly in the context of tort and compensation.

This example just happens to be less obvious than a construction company building a house or bridge that collapses and kills people, and most cases in front of a court are equally ambiguous.

That's such a strange interpretation that disagrees with my intuition.

If the Yankees hit a practice ball out of their stadium and into my house, causing bodily harm to a loved one, I wouldn't be satisfied with any of the reasoning in your comment.

More generally, people are allowed to take on risk as per their own appetite, but legal liability allows risk-hungry individuals to be incentive-aligned with everyone else.

I don't actually find it a particularly strange interpretation.

Here's another lens:

I install cabinets in your kitchen. Your loved one trips, hits the cabinets, breaks their neck and dies.

Should I be liable in this case as well? I did a thing that was involved in harming your loved one... if the cabinet hadn't been there, they might not have died.

---

In both cases, it's pretty clear that there's no intent to harm your loved one. At best you're arguing that it was "foreseeable" that hitting a baseball might harm someone, and that it wasn't "foreseeable" that installing cabinets would harm someone.

But clearly that's ALSO wrong, because we know people have been hurt hitting cabinets before.

So clarify how you'd assign blame in this case, and why it's different from the baseball case?

Basically - your stance is that risk is always a decision someone has made, but I find disagrees with my intuition. Risk is an inherent part of life.

> My question is why does anybody have to be liable at all?

This question mistakes what civil law is doing. A more accurate framing would be, “why does anybody have to bear the loss?”. But of course, somebody must. So the task of civil law here is to determine who. Certain policy choices will align better or worse with a sense of fairness, better or worse with incentives that could reduce future losses, etc.

"The loss" is already performing an abstraction to create something generic that can/must be assigned. The person who died is dead regardless of the creation of that assignable loss.

If there are too many instances of people dying in such situations, then the fundamental way to solve that is to prevent such situations from existing. A specter of civil financial liability is but one way of trying to do this, and having judges create common law theories is but one way of assigning that liability. Relying on those methods to the exclusion of others is not a neutral policy choice.

> Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all.

Ginsberg was about burdens on adults. In that case, New York law prohibited the sale of content containing nude images to minors. The Supreme Court upheld the conviction of a store owner under that law, who had sold magazines containing nude pictures to underage buyers: https://www.oyez.org/cases/1967/47.

Ginsberg acknowledged that the magazines did not qualify as obscenity as to adults--selling the magazines in question to adults was protected First Amendment conduct. So the age checking necessarily required by the law was a burden on those First Amendment protected sales. Ginsberg necessarily found that burden to be a permissible one.

I would read your summaries of legal precedents again, ahead of lots of people who AAL.

Highly recommend the podcast “Advisory Opinions” if you are interested in Supreme Court analysis.

I also recommend that podcast but I would suggest balancing it with '5-4' podcast or 'strict scrutiny'. Sara and David do a very good job explaining both sides and the law but there are times I think advisory opinions could spend more time on the arguments made by the other side or the weaker portions of their supported view.

Strict scrutiny is fantastic

Oof, I couldn't stand to make it through one episode of Strict Scrutiny. It was a political podcast dressed up as if it were a legal podcast. Not interested.

You can’t talk about the Supreme Court/US legal system and just omit politics. They also don’t make any sort of promise to be neutral or objective top to bottom.

They aren’t judges making decisions, they’re talking about the law on a podcast.

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