SD on 16/3/2010 at 12:57
I would always err on the side of free speech in cases like this.
I would also note with amusement that this was never an issue when it was the funerals of homosexuals that Pastor Fred and his hideous mob were disrupting. I very much doubt that these unconstitutional laws would ever have been dreamt up had the Clan Phelps not since graduated to protesting military funerals.
Scots Taffer on 16/3/2010 at 13:09
But God hates fags. God loves the marine corp.
Thirith on 16/3/2010 at 13:17
Quote Posted by Scots Taffer
God loves the marine corp.
But not in a faggy way.
demagogue on 16/3/2010 at 13:58
One thing I was going to say, I don't think the slippery-slope argument is a big part of Free Speech thinking in the US. The reason Americans traditionally tolerate this sort of crap (I think) isn't so much because they're worried the gov't will seriously turn on them someday, but more the idea that a person shouldn't be arrested just for expressing an opinion -- even a repugnant one -- and not hurting anyone (cf. RBJ on "intentional infliction of emotional distress".)
That said, to give a much more detailed answer on the actual difference between US and Europe, I actually took a course on comparative constitutional law (taught by a German constitutional court justice). I'm not used to explaining it, so this might be a bit long and rambling, sorry. But I think this answers a lot.
The punchline is, in the US we think about "rights" (like speech) as so fundamental that in practice they work like an analog switch. A "right" is either "on" and the heavens have to basically fall before you can stop the person, or they are "off" and you can stop them easily, e.g., because it's not "speech" anymore, it's something else.
So for example, in the US we have this elaborate exercise where we call different "speech-like" things speech or not. If they're *talking* about politics or religious-values, that's too much like "traditional speech" so we'll call it "speech" and the "rights switch" is "on" -- can't touch it. If a guy says "fire" in a crowded theatre, or says something that picks an immanent fight, we stop it, and it's not a problem *not* because the speech right isn't important, but because we say "that's not speech at all". It's something else, like "incitement" or "a public risk." Then we have all these categories like "fighting words", "draft-card burning", "pole dancing", a lot of "art exhibitions", etc, etc, that are individually carved out of "speech" so we never have to deal with the First Amendment "Fundamental Right".
Ok, that's the US. In (Continental) Europe it's completely different. There are no "fundamental rights" like it's coming down from the mouth of God. There are rights, of course, but they are *always* balanced with the principle of "proportionality". You can stop the right IF it is a "proportional" (i.e., very narrow) restriction just to meet some very important public interest. None of this crazy talk that it's a FUNDAMENTAL RIGHT BY GOD we can never touch it.
So one effect of the European approach is that they don't go through this silly exercise in the US where they have to carve all these categories individually out of the "speech" block and call them "not speech" -- although a lot of them are very speech-like. In Europe, it's ALL SPEECH. If a person opens his mouth, words are coming out, holy hell it's "speech". The principle of proportionality let's them do it, so they can proportionally restrict *any* speech, but not have to worry that all speech rights are going down the toilet. (Whereas in the US, as I said, rights are "fundamental" in that it has to be an insane and public need to restrict it (I can't even think of a single example right now), so it's easier just to call something "not speech" to restrict it.)
So in Europe, since it's all speech, some kinds of "speech" get restricted and not other kinds and it's not such a big deal, ends up being similar to a lot of US practice in the end, but a few categories get very different treatment, "hate speech" being one of them. In the US it's "speech" (too hard to call it "not speech") so it's too fundamental. In Europe, it's "speech" with the principle of "proportionality", so it's okay to proportionally restrict it just for this one important interest.
Thirith on 16/3/2010 at 14:09
Thanks a lot for that, demagogue - it makes a lot of things much clearer to me (especially the bit about the US concept of fundamental rights - pretty often when the topic comes up, I get the impression that Americans speak a completely different language). :) Definitely will have to think about this as well.
Aerothorn on 17/3/2010 at 00:14
Silly as you might find it, dema, I think the "protected or no" system has a lot of advantages - the result (obviously) is that it tends to disallow governmental censorship that other systems allow. For instance: Pretty much any government in Europe can restrict the sales of video games they deem "harmful" to children, whether or not much research supports their claims. In the USA, the government cannot (as of now) do that.
Of course, this gets very complicated because the government threatens to do it anyway (and the decision would stand for a bit until overturned) and so the industry self-polices a bit, but not to the extent seen in other countries.
I could be a lot more thorough in my defense of the American system (I, too, have dabbled in comparative constitutional law, having taken a free speech course in both England and the USA), but it's hard to tackle such a large topic without a narrower focus on things and I'd just as soon wait for RBJ's longer (and more informed) post to get things rolling. The one thing I will do is respond to Thirith's claim that "there's a relatively clear difference between hate speech and criticism." In short: no. Case in point: satire. My first year, I was involved in a satirical Facebook group that was eventually shut down by my college. Why? Because one person's humor is another person's hate speech. I say this not to argue that the Phelbes stuff ISN'T hate speech, but simply to say that - outside of extreme stuff like this - the distinction (or at least, agreement on such a distinction) is not as clear as you might imagine. A large number of people would like to see the likes of Huckleberry Finn or Blazing Saddles banned as hate speech, not to speak of stuff more extreme.
For a good example of just how complicated this business can get (particularly in regards to hate speech) read Randall Kennedy's Nigger: The Strange Career of a Troublesome Word. It's through, succint, and will really highlight just how tricky this stuff can get (in that case, who gets to say nigger and how can they use it?)
dreamcatcher on 17/3/2010 at 02:03
Quote Posted by ZymeAddict
Unless you follow his exact religious tenants then you believe what he has to say is completely ridiculous anyway, so why are you offended?
Never followed one, but always liked exact religious tenants. They're the only ones can manage to pay they rent on time.
Starrfall on 17/3/2010 at 02:28
(
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=403&invol=15) Cohen v. California is one of the best free speech cases, even if only because of the speech at issue:
Quote:
On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words `Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested.
CCCToad on 17/3/2010 at 03:40
Quote:
(Whereas in the US, as I said, rights are "fundamental" in that it has to be an insane and public need to restrict it (I can't even think of a single example right now), so it's easier just to call something "not speech" to restrict it.)
Looked up last year's notes, and the most important types of speech (relative to hate) that are recognized as controlled speech are Defamation and fighting words. In other words, spreading malicious facts that you know are false can be punished if that person decides to sue and speaking to someone in a manner which tends "to incite an immediate breach of the peace" (315 U.S. 568) can be punished even though it is still considered speech.
Also, there's plenty of other ways that speech can be regulated outside of hate speech. There's plenty of restrictions on commercial speech and advertising (to include political campaigning). Don't ask me for the specifics though, I don't know anything about those areas except that they can be regulated.
Quote:
My first year, I was involved in a satirical Facebook group that was eventually shut down by my college.
Just because I'm curious, do you know how the college go about shutting down the facebook page? and what was the facebook group that they found so offensive?
Thirith on 17/3/2010 at 08:35
Quote Posted by Aerothorn
The one thing I will do is respond to Thirith's claim that "there's a relatively clear difference between hate speech and criticism." In short: no. Case in point: satire. My first year, I was involved in a satirical Facebook group that was eventually shut down by my college. Why? Because one person's humor is another person's hate speech. I say this not to argue that the Phelbes stuff ISN'T hate speech, but simply to say that - outside of extreme stuff like this - the distinction (or at least, agreement on such a distinction) is not as clear as you might imagine. A large number of people would like to see the likes of Huckleberry Finn or Blazing Saddles banned as hate speech, not to speak of stuff more extreme.
Out of interest, what legally acceptable arguments would people bring up when calling
Huckleberry Finn or
Blazing Saddles hate speech? Is it the simple use of the N word? Admittedly, my knowledge of legal matters is slim, so I may very well be completely off on this, but any judge that accepts that this is enough to qualify these works as hate speech is doing a crap job and is biased or has a specific agenda. I agree that extreme satire is a grey area, but that's where I'd imagine (or hope) that appeals come in, as a corrective to over-zealous jurisdiction.
