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 Topic: Free Speech (Page 1 of 3)
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  Minimalist (Profile)
  128 MB
 
Posted: Mon Mar 10, 2008 8:23 am
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I've been giving some thought to the limits of free speech over the last couple of days. Mostly because it looks very likely that I'm going to be heading to court to defend my rights to free speech, among other things.

An email that I received recently about a U.S. Courts decision to uphold a conviction on spamming got me to thinking about this. I guess that the lawyer for the defendant argued that his client had a right under the First Amendment to free speech, and that sending unsolicited spam emails amounts to nothing more than free speech as protected under the U.S. Constitution. Now I'll be the first to admit that I'm not an American and that I know diddly squat about American law. So I'd really prefer not to make this discussion U.S. centric. I'm really more interested in the general idea of free speech and the implications of having limits on what can be freely expressed and by what means. I'll also concede that I am not a lawyer and that I have no formal education in law. Yet, I don't feel it necessary to have a background in law or even political science in order to offer casual and informal debate and discussion on a topic that, for the most part, effects each and every one of us -- regardless of nationality.

I suppose one must recognize that there exists somewhat of a principle in most free and democratic societies that people should enjoy certain fundamental freedoms. Of these freedoms, free speech and freedom of religion appear to be the ones that get the most press. Although I should also admit that I've not paid particular attention to rights issues prior to encountering rights issues of my very own. It seems that our rights are often taken for granted and are given little thought until they are infringed or denied. Yet, I'm sure we can all agree that there does indeed exist clear limits to what one can say. There are also very clear limits on what instances one can argue free speech as a defense. You wouldn't be able to file a false tax return, for example, and offer free speech in your defense. It is most unlikely that any court of competent jurisdiction would accept free speech or expression as a legitimate excuse for committing tax evasion or fraud. It's also unlikely that you could threaten to kill someone and then offer free speech as your defense. So there's very clear limits.

What I'm particularly interested in is the balance between one person's rights and the rights of another. From looking at Court cases involving rights, I've come to recognize that no court generally accepts that one person's rights trump the rights of another. That is, one person's right to free speech does not give that person the right to silence anyone that disagrees with him or her. So it would seem that rights are intended to be inclusionary as opposed to exclusionary. That is, everyone must be able to enjoy the same rights or no one at all should be entitled to receive the right.

Now, before I continue, I want to stress that there is a very definite distinction between a right and a privilege. A right is something that is usually guaranteed to all persons under law. A privilege is usually something that is available to those who are fortunate enough to receive it, but there is no law that implicitly or explicitly states he or she shall have it for as long as he or she chooses to have it. An example of a right would be the right to free speech or association. An example of a privilege would be the ability to broadcast your speech over the airwaves. Everyone gets the right to speak their minds, but few get the privilege of broadcasting what they think.

Sticking with the idea of a distinction between a right and a 'privilege', it becomes clear to me how it is possible to restrict what a broadcaster may say or do on air without actually infringing the broadcaster's right to free speech or expression. Howard Stern would not be able to sue the FCC for infringing his right to free speech, for example, because Howard Stern has no right to broadcast. He simply has the privilege of being able to broadcast and is able to maintain that privilege by conducting himself within the limits established by the FCC.

I'll continue this more as I give it some more thought...
  
  Lichen Software (Profile)
  128 MB
 
Posted: Mon Mar 10, 2008 3:44 pm
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At this point, all I could say to you wouild be that at law, the first deliniation of your free speach rights is at the constitution level if free speech is explicitely mentioned. Otherwise, free speach begins it's life not as a right but as a privilege. This will vary from country to country.

From there, it will very much depend on the law system in place. If there is a body of common law in place, then the further deliniation is from examination of the actual cases. Even where there is statute law to the contrary, if the statute law conflicts with the constitution, it is possible to challenge any law due to that reason.

Here in Canada, there are hate laws that would challenge free speech. They appear to have been upheld in the courts as a "Necessary Limitation" in the name of the greater good.
  
  Minimalist (Profile)
  128 MB
 
Posted: Wed Mar 12, 2008 5:08 pm
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Lichen Software wrote:


Here in Canada, there are hate laws that would challenge free speech. They appear to have been upheld in the courts as a "Necessary Limitation" in the name of the greater good.


Necessary on what basis? The target's right to life, liberty, and security of the person? The Charter here in Canada actually explicitly offers such a guarantee. I'm sure there can be no argument that hate speech does not impede one's right to life, liberty, and security. Hate speech, after all, is clearly aimed at isolating, alienating, and diminishing another person's quality of life, access to freedom and equal benefit, and their very security. Would you not agree?
  
  dpaanlka (Profile)
  1024 MB
 
Posted: Wed Mar 12, 2008 6:26 pm
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In Germany you can't have Nazi flags or utter the words sieg heil. Imagine that.
  
  Lichen Software (Profile)
  128 MB
 
Posted: Wed Mar 12, 2008 8:44 pm
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Minimalist wrote:

Lichen Software wrote:


Here in Canada, there are hate laws that would challenge free speech. They appear to have been upheld in the courts as a "Necessary Limitation" in the name of the greater good.


Necessary on what basis? The target's right to life, liberty, and security of the person? The Charter here in Canada actually explicitly offers such a guarantee. I'm sure there can be no argument that hate speech does not impede one's right to life, liberty, and security. Hate speech, after all, is clearly aimed at isolating, alienating, and diminishing another person's quality of life, access to freedom and equal benefit, and their very security. Would you not agree?


If I am reading you correctly, you are saying it is a double hit - guarantee under constitution and specific statue law. If so, yup.

The difference is law provides for punishment. Violating the constitution I think just calls for a cease and desist and then you might have the option to sue for damages. The two together have teeth. You do however have to watch that they don't "over bight". Smile
  
  Minimalist (Profile)
  128 MB
 
Posted: Wed Mar 12, 2008 9:52 pm
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dpaanlka wrote:

In Germany you can't have Nazi flags or utter the words sieg heil. Imagine that.


In Germany they want to forget that the Nazi Party was even a part of their past. And who could blame them? In Poland, however, they keep the concentration camps open as a tourist attraction.
  
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