ZymeAddict on 17/3/2010 at 15:38
Quote Posted by dreamcatcher
Never followed one, but always liked exact religious tenants. They're the only ones can manage to pay they rent on time.
Nice.
demagogue on 17/3/2010 at 17:55
*I* wasn't the one saying the US theory was silly ... I was trying to dramatize my German professor's perspective on it (by this time I'm just about jaded & cynical enough to not really have emotions about legal theories much anymore). Obviously there are pros and cons to either approach, depending on what your values are, and of course with any legal discussion you want to keep peeling back the onion layers of analysis since there are always qualifications and deeper layers you have to talk about.
Going back to some things, though ... An issue with the US theory isn't so much the idea that a kind of speech is either a "right" or "no right"... The issue with it is who decides whether it's a 100% right or a 0% no-right? The Supreme Ct. might say things like some speech is obviously "protected" by the 1st Am and other speech is not. But that really just begs the question; the word "protected" by itself doesn't really tell you anything. What's really getting the protecting? And if you look at something like "fighting words" and "defamation" ... it sure looks like speech. So just in jurisprudence terms, it seems a little fishy to invent a category where you get to pick the boundaries ("I know it when I see it."), as opposed to picking a natural category and sticking to it ("speech"), where there's no ambiguity, and then working out what's "proportional" in a sensible way. Of course, just because the Continental approach is more consistent in its logic doesn't make it necessarily "better" for the regime... Might just make Kant's ghost a little happier. I'm not actually trying to take sides and like I said can see pros and cons with both; I was just trying to dramatize the differences.
As for the end effects... That's a little different point. The fact that Germany bans some video games (and all sorts of stuff) isn't so much a problem with the theory itself as political abuse of it. If you were being faithful to the theory, I think you could argue pretty persuasively that that's seriously disproportional to the public interest at stake... The restriction is waaay more onerous than the vanishing possibility that it might literally seriously threaten public safety, not to mention unnecessary (when there are 50-thousand less-restrictive policies you could do, which should be enough to disqualify the restriction by itself.)
CCCToad on 17/3/2010 at 18:55
Quote Posted by demagogue
As for the end effects... That's a little different point. The fact that Germany bans some video games (and all sorts of stuff) isn't so much a problem with the theory itself as political abuse of it. If you were being faithful to the theory, I think you could argue pretty persuasively that that's seriously
disproportional to the public interest at stake... The restriction is waaay more onerous than the vanishing possibility that it might literally seriously threaten public safety, not to mention unnecessary (when there are 50-thousand less-restrictive policies you could do, which should be enough to disqualify the restriction by itself.)
In my opinion, that's the problem with allowing speech to be regulated just because it is in the public interest to do so: the "public interest" is not only subjective, but purely hypothetical in many cases. Case in point, the argument that it is necessary to ban the games because it incites youngin's to violence. Of course, most studies show no link between games and criminality but when the bar for regulating speech is set that low all that's necessary is a semi-logical argument.
demagogue on 17/3/2010 at 22:03
Well the US law restricts speech based on the "public interest" too. But where in Europe it's a sliding scale of "proportional" (the bigger the interest, the more you can restrict), in the US it's tiered... If it's a basic liberty (rational scrutiny; any old law like putting up stop signs), the restriction just has to be "tailored" to meet a "rational" interest. If it's an intermediate right (intermediate scrutiny; like gender-based laws), the restriction needs to be "narrowly-tailored" to an "important interest". And if it's a fundamental right (strict scrutiny; like race-based laws), the restriction has to be "necessary" for a "compelling interest".
IIRC, for speech in the US, if the restriction is content-based it's strict scrutiny (e.g., "You can't say X, but if you're saying Y that's ok."). If it's content-neutral it's intermediate-scrutiny (e.g., "Doesn't matter what you say, you just can't go over X decibels or block traffic"). (edit: (
http://www.personal.psu.edu/faculty/m/x/mxj20/comm381/first%20amendment%20outline.htm) yep)
Anyway, "public interest" gets in there one way or another because some interests really do need protecting (riots, blatant fraud, etc.) The main difference is whether it's tiered with formal categories (US) or on a flexible sliding-scale of proportional (Europe).
I can guess your argument to that might be that the US way is better because it
forces judges to apply an appropriate scrutiny at the right level, and doesn't give them wiggle room to let iffy public-interests have traction (or vice-versa)... whereas the Continental way gives judges a lot more wiggle room to hang themselves with and use a scrutiny that might be "proportional" in their own head but is wildly off the mark to others (video game banning case in point). There's something to that argument, too.
I'm curious to see if there are cases where the American way leads to its own counter-intuitive results *because* judges are forced to apply a rigid scrutiny without flexibility (or maybe judges use really strange arguments to get the result they want; it should be in this box, but judges twist the facts so it ends up in this other box for the sole reason of getting the answer they want). That's just a hunch I have, since I can't think of a case off the top of my head just now.
CCCToad on 17/3/2010 at 22:50
Thanks for the refresher, though I think I phrased it badly.
What I meant to say was that I view it a problem when any public benefit, no matter how questionable or small, is considered as sufficient to forbid certain content.
Quote:
I can guess your argument to that might be that the US way is better because it forces judges to apply an appropriate scrutiny at the right level, and doesn't give them wiggle room to let iffy public-interests have traction (or vice-versa)... whereas the Continental way gives judges a lot more wiggle room to hang themselves with and use a scrutiny that might be "proportional" in their own head but is wildly off the mark to others
Thats basically what I'm getting at. Again, Germany is a good example of what I'm thinking of: Swastika's are outlawed regardless of context. Silent Hunter 5 was banned in spite of the Swastika being used in a historical context, a far cry from the waving it around in public at a hate rally ( or something on a similiar level) that would be required to get in trouble in the U.S.
Thirith on 19/3/2010 at 14:11
If I'm completely honest, a lot of the issue I have with people advocating complete freedom of speech is that you see too much evidence of people undeserving of this right. It's things like this that make me hanker, like a reactionary commie fascist, for a 'speaker's licence' that can be revoked by... dunno... being Glenn Beck or Rush Limbaugh.
PigLick on 19/3/2010 at 14:59
also this is an outrage, fucking outrage i might as well step off this planet right now
(
http://fuckyou.com) boy gets ridiculed for pokemon sticker
CCCToad on 19/3/2010 at 15:41
Quote Posted by Thirith
If I'm completely honest, a lot of the issue I have with people advocating complete freedom of speech is that you see too much evidence of people undeserving of this right. It's things like this that make me hanker, like a reactionary commie fascist, for a 'speaker's licence' that can be revoked by... dunno... being Glenn Beck or Rush Limbaugh.
Maybe, but whats to stop somebody else from deciding that you are too stupid to be deserving of free speech?
june gloom on 19/3/2010 at 17:59
Especially when you say shit like "commie fascist."
I'm sorry, but as repugnant as people like Glenn Beck are, they have the right to make assholes of themselves. Free speech does not mean "only speech I do not find objectionable."
