> Under U.S. law, many falsehoods—even some deliberate lies—receive the full protection of the First Amendment. That is true even though “there is no constitutional value in false statements of fact,” as Justice Lewis Powell Jr. wrote for the Supreme Court in 1974. Nonetheless, the Court has often refused to allow government to penalize speakers for mistakes, sloppy falsehoods, and lies. Political lies are strongly protected; but even private lies sometimes are as well.
Does it? What if the government decides the earth is the center of the universe and imprisons the scientist who has observable proof that it isn’t? What’s if the government decides “encryption with backdoor is unsafe” is a false statement and suppresses all speech that says otherwise?
Slippery slope arguments like this are stupid because a government determined to be a bad actor isn't going to let a constitution stop them. Russia has a constitution, heck, Soviet Russia did.
The reality of having laws against broadcasting lies is that they will be applied sensibly if the rest of the system is sensible - and if it is not, you have worse problems.
Slippery slope arguments take into consideration the very human capacity to become accustomed to a certain boundary, and then seek to push beyond that boundary. For good or ill, look at the progression of rights leading to the current transgender/feminist argument over what constitutes a woman. 50 years ago that would not have even been a discussion.
You would be hard-pressed to ever see a government give ground where once they have asserted authority. Only encroaching further into our rights.
The people who will have control of the system have no incentive to be sensible; they have incentives to do what the executive government tells them to do and situations get very political very quickly. Consider the IRS vs conservative groups under Obama (according to Republicans).
The issue isn't a slippery slope as much as it is centralising power to a single point vulnerable to corruption & allowing politically charged decisions to be hidden behind opaque bureaucratic processes.
The problem with laws is you need people to enforce them.
The problem with law enforcement is you need people to pay them and tell them what laws to enforce.
The problem with lawmakers is you need some means to determine who gets to make the laws.
The answer is the guy with more guns and pointy sticks. The guy with more guns gets to tell you that while you’re in his land, whatever land it is, you’re going to give him money or goods.
Social contract theory mitigates this to a degree, by specifying the method by which you select who the guy with the most guns is. Sometimes it’s more than one guy. Sometimes it is a lot of them, and they all counterbalance each other, but it doesn’t take away from the fact that what keeps them in power is a piece of paper and all the guns they’ll ever need to back up what it says on the paper. Everything else is norms and traditions and processes. This is power.
The problem with social contract theory is that the contract can say anything. You just need enough people with enough guns to agree that this contract serves their interests enough.
Well the US Constitution wasn’t written in a vacuum. It was written by, largely, Englishmen and some other Northern Europeans subject largely to English rule. They already had values and cultural norms and traditions, they just needed the document. Well they had one already, several actually, the Articles of Confederation and the Constitutions of every State. The Articles were not doing the job of serving the interests of the people, in the view of the framers and Madison in particular, and they swapped it out.
Now go read Article I. Examine the structure. There’s a selection process, and there’s minutia about procedure, and there are limitations. The Article I branch is Congress, it is the supreme authority of the government, not coequal with the Presidency or SCOTUS, you were lied to about that, but above them. If Congress were one guy and could speak with one voice, it could do almost anything, impeach and remove the President, any sitting Judge, any Officer of the government, amend the Constitution, and declare war at will.
These are very good reasons why Congress isn’t one voice, and it is many.
Now to get back to what you were saying, the problem with with laws against things like “broadcasting lies” is you don’t know that they will be applied sensibly. The more laws you have to begin with, then more rope you have to hang the citizenry.
The First Amendment, and for that matter the Second and Third, the reason they are as ironclad as they are is specifically to prevent abuses by the Federal Government. It was to appease the faction at the time known as the Anti-Federalists who felt, rightly in my opinion, is that the more guns you give the Federal Government, the more potential abuses for power because there will be (have been and are) who will attempt to co-opt the Federal Government to wield those guns.
Congress doesn’t need the power to determine what is a lie and what isn’t. You don’t need laws to punish liars. If you have faith in sensible systems, then the system you want to have faith in is the people. If you don’t have that, then you can’t have faith in Congress.
Government can't just "decide to be a bad actor", the system wouldn't let it. If they could do it, they all would do it a long time ago (and many have indeed tried, from Watergate to now Trump). Bad actors need to be able to control the regulatory bodies and media first before they can consolidate their absolute power - and the power to censor anyone is one of the necessary steps to get there.
That would be a big problem for religion and indeed science. Religion is largely based on faith so cannot be 'true' or 'false'. Science is based on theory. Scientists may disagree as to what is true.
The UK is infamous for its ruinous libel lawsuits against people who dare to say true things about the rich and powerful. It was so widely abused that the US ended up having to introduce a law blocking our libel suits fronm being enforced over there.
Controversial Suggestion: People discern truth for themselves like they always have and will always continue to do. True and Trustworthy are two very different things when it comes to human instinct. Something that is true but not trustworthy due to lack of feedback may be wrong in the future. Furthermore something that proves to be trustworthy on some subjects might not be the same on others
I think cases like George J. Stinney's prove that it is not a reliable process. Best is to avoid any judgment when it is not necessary, like limiting freedom of expression.
It would be more accurate to say that deliberate lies are sometimes not free speech as decided by the courts. These circumstances include false advertising, libel, and slander.
Even in these cases, 1A does not allow the government to prevent such speech (that is, prior restraint). These are not criminal issues. If you engage in any of these practices you may be liable for civil judgments, but that's the extent of it.
It's true that there are limitations on 1A. But these are very frequently misunderstood. For example, the bit about "shouting fire in a crowded theater" is incorrect.
>Even in these cases, 1A does not allow the government to prevent such speech (that is, prior restraint). These are not criminal issues. If you engage in any of these practices you may be liable for civil judgments, but that's the extent of it.
That's incorrect. There exist many statutes that criminalize certain commercial speech. And 15 states have criminal libel laws on the books. SCOTUS hasn't ruled that criminal liable laws generally violate the 1st amendment even though they have overturned many examples in the past.
And there is no general prohibition against criminalizing speech that isn't protected by the first amendment such as fraudulent or illegal commercial speech.
> The First Amendment is about government suppression of speech
It is exactly that, but that doesn't actually end the real conversation people are trying to have.
Do we support the idea that the govt shouldn't restrict speech, but that we as society should? There are a lot of "chilling" effects seen in history.
On other hand, TOTALLY unrestricted speech is a completely different ball of wax, complete with plenty of hairballs in there. There's the ever-present (yet valid) "what about child porn", but there's also a lot of the issues that are arising in recent years with explicitly false statements and representations designed to influence the average person. Sure, such statements can't survive enough research, but it's easy enough to make it hard to research, to create conventional wisdom that is just wrong. Society where we cannot trust "facts" cannot sustain - it will fracture into separate societies in which trust CAN be held.
And on the gripping hand, we have those that argue for truly unrestricted speech in words, but actually just have confidence that their viewpoint will win out, not by virtue of reason and logic but by virtue of fear and hate.
When I was young, I believed in absolute free speech. I'd quote Voltaire, I'd defend any attempt to allow communication, even that which made me uncomfortable, but I did it for noble reasons. A lot of my more liberal views came about because I supported the efforts of those that made me uncomfortable to express themselves. Nowadays, despite those personal growths, having seen how much we CAN'T handle truly free speech, I'm much more hesitant.
Clearly excessive suppression of speech, be it from the govt or be it from society, is terrible. But now I'm horrified to see that truly restricted speech just empowers demagogues. It ends up not being truly free speech either, as it creates fear of reprisals that can't be proven. It promotes the name of speech while restricting the ideal.
We need to discuss what our true objective is. We can't find the line yet, perhaps we never will, but perhaps we can narrow down the grey area a bit.
But right now, we have the believers in unrestricted speech as a noble ideal, with users of unrestricted speech to restrict ideas hidden among them, arguing with those that are fine with the govt not restricting speech but wanting social protections, with a decently large group that is wondering if keeping the govt out fully and leaving it to social repercussions is perhaps flawed that also joins in.
Saying "the first amendment only restricts the govt" is a fine statement about the current law. It doesn't address anyone's actual concerns though.
