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 Post subject: Re: The U.S. Constitution--Topic 3: Limits on free speech?
PostPosted: Fri February 22, 2019 7:20 pm 
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Green Habit wrote:
4/5 wrote:
Green Habit wrote:
4/5 wrote:
Can you elaborate on your free press statement? Are you arguing to include press within speech, or are you making a broader point about the correct way to interpret freedom of press? Or something else?

Edit: You linked to an article...let me read that and then maybe I'll understand what you're saying.
Mainly the latter. Journalists obviously engage in speech, and are a very important part of it, but the idea that they somehow enjoy added protection via the First Amendment strikes as all kinds of illogical wrong.
Interesting. I haven't really thought of it like that before. I've always taught the First Amendment as a progression from the freedom to think what you want (religion) to the freedom to share what you think with others (speech) to the freedom to share what you think with a lot of other people that you don't know (press) to the freedom to join together with like minded people and demand that your speech be heard (assembly). But the article you linked to raises some interesting points regarding whether there is some extra speech protection granted to journalists as such a distinction between speech and press could imply.
I actually think the way you describe it is very good, as I'll explain. But before you do, I should expound a bit further on what I've said, as I had to post that quickly before taking off for something else.

I see the "or of the press" phrase as a truism within the Free Speech Clause itself that, again, I think draws justification from what's included between those semicolons. (And spoiler alert: when we get to the Establishment Clause and so called "Free Exercise Clause", I feel the same way, which should be even more intriguing.) Freedom of speech, more accurately, freedom of expression, has very limited use if all that it grants is the ability to physically speak in public spaces. So in order for it to practically work, you also have to guarantee it via all vehicles of transmission, of which have expanded dramatically since the Founding.

The key reason why I think trying to make the "or of the press" phrase anything more than that runs into logical problems would be trying to determine who qualifies as a "journalist". I'll start with myself as a mundane example that's actually highly relevant on this day. Today is when I expect the NFL's compensatory draft picks to be released. I've devised a formula that tries to project what they are, and have written several articles on why I think this is what it's going to be. I don't consider myself a professional journalist by any means, but I have been cited by people who are. Yet I don't believe I have any less of a right under the Constitution to report on comp picks than the people who cite me.

For a more serious example, take expenditures used on campaign messaging (a controversial form of speech that I'm surprised you didn't mention in your list of types of speech you wanted to question), and more specifically the highly controversial Citizens United v. FEC case. This is the case that really opened my eyes to this. Citizens United is a nonprofit corporation whose goal is to express advocacy for their favored forms of government and society. The New York Times is a for-profit company that has an entire section devoted to expressing the same. Yet the idea that the NYT somehow has more legitimacy under the First Amendment to spend on distributing their point of their view than Citizens United makes no sense to me. (You can make the same argument about, say, the ACLU vs. the Wall Street Journal, or whatever combination you want.)

So getting back to what you teach your students, I think that teaching them that "freedom to share what you think with a lot of other people that you don't know" is a very important part of the Free Speech Clause and the First Amendment as a whole, and it should be taught. But I think that explanation helps strengthen the idea that that freedom should be granted to all, and not just those who have professional expertise in it.

I'm inclined to agree with everything you've said. I really hadn't thought that the particular distinction "or of the press" potentially implies a greater degree of protection for journalists than other citizens and I agree that it shouldn't be interpreted that way. Your point regarding Citizens United is a really interesting example of that for a few reasons. For one, I think it is generally viewed as a free speech case, which I've always taken for granted but you've given me something to chew on with the NYT comparison. Similarly, Schenck is a speech case but you could easily make an argument that both were exercising their press rights, Schenck with his pamphlets and Citizens United with their Hillary: The Movie. From my memory Citizens United made a comparison between themselves and Michael Moore as filmmakers and there was debate over whether one was a film (Fahrenheit 9/11) and one was electioneering (HTM), but if I remember correctly, ultimately each was simply considered speech. My Schenck comparison probably falls short because I believe the government actually did go after a few journalists with their powers from the Espionage Act, but it is still an interesting thought experiment to consider.

With Citizens United, the way you frame speech/press I think changes the entire nature of the argument. Instead of arguing whether nonprofits or unions or corporations have free speech to engage in political expenditures it becomes an issue of why some people/corporations by virtue of being considered journalists were allowed free speech in the days leading up to an election when other people/corporations couldn't engage in basically the exact same behavior just because they weren't considered journalists. Maybe comparing themselves to the NYT or FOXNews, etc., would have been a better way for them to have gone. I'm kind of thinking out loud here, but it seems like this path could have saved them from the clunkier "corporations are people" route that the Court ultimately went.

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 Post subject: Re: The U.S. Constitution--Topic 3: Limits on free speech?
PostPosted: Fri February 22, 2019 7:42 pm 
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4/5 wrote:
With Citizens United, the way you frame speech/press I think changes the entire nature of the argument. Instead of arguing whether nonprofits or unions or corporations have free speech to engage in political expenditures it becomes an issue of why some people/corporations by virtue of being considered journalists were allowed free speech in the days leading up to an election when other people/corporations couldn't engage in basically the exact same behavior just because they weren't considered journalists. Maybe comparing themselves to the NYT or FOXNews, etc., would have been a better way for them to have gone. I'm kind of thinking out loud here, but it seems like this path could have saved them from the clunkier "corporations are people" route that the Court ultimately went.
That would have been a narrower way to decide that case, which was criticized for going too quickly on procedural grounds that I'm somewhat sympathetic to. But ultimately, a corporation is at its essence a group of people pooling their resources together for a common goal. They're also very diverse in that regard, and you can't make lazy conclusions about all of them as a whole.


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 Post subject: Re: The Constitution--Topic 3: Should hate speech be protect
PostPosted: Fri February 22, 2019 8:47 pm 
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I agree with you on the personhood/corporation issue. My biggest problem with Citizens United is that the Court pretty blatantly answered a question that wasn’t being asked. It seems like a perfect example of the type of judicial overreach/activism that several of the Justices in the majority typically become apoplectic over.

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 Post subject: Re: The Constitution--Topic 3: Should hate speech be protect
PostPosted: Sat February 23, 2019 12:53 am 
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4/5 wrote:
I agree with you on the personhood/corporation issue. My biggest problem with Citizens United is that the Court pretty blatantly answered a question that wasn’t being asked. It seems like a perfect example of the type of judicial overreach/activism that several of the Justices in the majority typically become apoplectic over.
That's a legitimate concern, but ultimately it was one more over procedure than the merits. Had they ruled narrowly in Citizens United, I have to think that a different PAC was going to bring the the broader question before the Court within a year or two, and the end result would have been the same.


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 Post subject: Re: The Constitution--Topic 3: Should hate speech be protect
PostPosted: Sat February 23, 2019 1:47 am 
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Green Habit wrote:
4/5 wrote:
I agree with you on the personhood/corporation issue. My biggest problem with Citizens United is that the Court pretty blatantly answered a question that wasn’t being asked. It seems like a perfect example of the type of judicial overreach/activism that several of the Justices in the majority typically become apoplectic over.
That's a legitimate concern, but ultimately it was one more over procedure than the merits. Had they ruled narrowly in Citizens United, I have to think that a different PAC was going to bring the the broader question before the Court within a year or two, and the end result would have been the same.

That's probably true. Based on the Court's action in that case it was pretty clear that they wanted this outcome. If I'm not mistaken after the Court heard the case the first time and announced it would be reargued in the following term didn't they essentially signal their desire to change the focus from the original question to the much broader issue?

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 Post subject: Re: The Constitution--Topic 3: Should hate speech be protect
PostPosted: Sat February 23, 2019 2:02 am 
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4/5 wrote:
Green Habit wrote:
4/5 wrote:
I agree with you on the personhood/corporation issue. My biggest problem with Citizens United is that the Court pretty blatantly answered a question that wasn’t being asked. It seems like a perfect example of the type of judicial overreach/activism that several of the Justices in the majority typically become apoplectic over.
That's a legitimate concern, but ultimately it was one more over procedure than the merits. Had they ruled narrowly in Citizens United, I have to think that a different PAC was going to bring the the broader question before the Court within a year or two, and the end result would have been the same.

That's probably true. Based on the Court's action in that case it was pretty clear that they wanted this outcome. If I'm not mistaken after the Court heard the case the first time and announced it would be reargued in the following term didn't they essentially signal their desire to change the focus from the original question to the much broader issue?
Something like that. They had also set up this outcome a few years prior in this case:

https://en.wikipedia.org/wiki/FEC_v._Wi ... _Life,_Inc.


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 Post subject: Re: The Constitution--Topic 3: Should hate speech be protect
PostPosted: Sun February 24, 2019 10:45 pm 
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Since we mentioned this in this thread recently:



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 Post subject: Re: The Constitution--Topic 3: Should hate speech be protect
PostPosted: Mon February 25, 2019 6:14 pm 
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Seeing as we're already talking about it, this is probably as good a time as any to formally direct the conversation towards Citizens United and campaign finance laws more broadly. You mentioned that you support Citizens but not McConnell, maybe we can start there?

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 Post subject: Re: The Constitution--Topic 3: Should hate speech be protect
PostPosted: Mon February 25, 2019 9:40 pm 
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4/5 wrote:
Seeing as we're already talking about it, this is probably as good a time as any to formally direct the conversation towards Citizens United and campaign finance laws more broadly. You mentioned that you support Citizens but not McConnell, maybe we can start there?
I think the place to really start is Buckley v. Valeo, the leading case on the subject back in the 1970s. There's a lot going on there, but the central holding is that restrictions on contributions are allowable under the First Amendment, but restrictions on expenditures are not. I think this bright line distinction makes much sense. Let's take those two aspects one at a time.

As I said earlier with stating that freedom of the (metaphorical printing) press is a truism within the greater concept as a whole, "Freedom of speech [...] has very limited use if all that it grants is the ability to physically speak in public spaces." You can enhance your speech in public speeches by making a sign, or getting a megaphone to make your voice more clearly heard in a crowd that's interested in your speech. You can print out some leaflets to hand out, build a website to transmit your speech digitally, or get some ad time or space. We can certainly concoct more creative ways to enhance speech if we want.

The catch, of course, is that doing any of those things requires spending resources. Usually money, but not always limited to that. So if you place restrictions on what people can spend, you're in effect restricting the enhancements of speech. I think that causes plenty of First Amendment complications, particularly in try to define what kind of spending is or isn't electioneering, as you pointed out earlier with Hillary: The Movie.

With contributions, on the other hand, one is not doing any speaking in such an act, but is instead giving resources to someone to speak on one's behalf. I don't see the First Amendment materially infringed upon here because, given the above, the contributor could spend the resources on one's own behalf. Now, this doesn't mean that contributions are by themselves bad--if one doesn't have much resources, one can get much benefit by pooling together with others similarly situated and united in opinion to form a PAC or something similar. It just means I see them as constitutional to restrict if we so choose.

Practically, this harmoniously aligns with what I see as my ideal policy for campaign finance regulation. If you have the resources, you can spend them however you want, but once you start giving them, what you give can be limited, and you have to disclose what you gave and to whom. (Disclosure requirements, by the way, were given the green light in Buckley, and reaffirmed in Citizens United sans Thomas.) You don't want to go through that, then put your mouth where you money is and campaign yourself.

So that's a long winded explanation of why I think Citizens United, which dealt with expenditures, was correct, while McCutcheon, which dealt with contributions, was incorrect.


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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Wed March 06, 2019 2:35 pm 
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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Wed March 06, 2019 4:14 pm 
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Sorry I haven't replied to your previous post. I should be able to later today I think.

In the meantime, if you're watching Jeopardy by yourself you still have to say your answer out loud for it to count, right? Or is that just me?

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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Wed March 06, 2019 4:16 pm 
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4/5 wrote:
Sorry I haven't replied to your previous post. I should be able to later today I think.

In the meantime, if you're watching Jeopardy by yourself you still have to say your answer out loud for it to count, right? Or is that just me?


It only really counts if you guess correctly from the category alone before the clue comes up.

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lol


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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Wed March 06, 2019 4:30 pm 
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Simple Torture wrote:
4/5 wrote:
Sorry I haven't replied to your previous post. I should be able to later today I think.

In the meantime, if you're watching Jeopardy by yourself you still have to say your answer out loud for it to count, right? Or is that just me?


It only really counts if you guess correctly from the category alone before the clue comes up.

I'm pretty good at that. And when in doubt just guess "Virginia Woolf."

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"I want to see the whole picture--as nearly as I can. I don't want to put on the blinders of 'good and bad,' and limit my vision."-- In Dubious Battle



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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Wed March 06, 2019 4:36 pm 
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4/5 wrote:
Simple Torture wrote:
4/5 wrote:
Sorry I haven't replied to your previous post. I should be able to later today I think.

In the meantime, if you're watching Jeopardy by yourself you still have to say your answer out loud for it to count, right? Or is that just me?


It only really counts if you guess correctly from the category alone before the clue comes up.

I'm pretty good at that. And when in doubt just guess "Virginia Woolf."


My go-tos:

Presidential History: Gerald Ford
Lakes and Rivers: The Black Sea or the Danube
World Capitals: Riga
Geography: the Urals or any country ending in "stan"
Literature: Mark Twain (although VW is a good one)

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McParadigm wrote:
lol


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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Mon March 11, 2019 2:00 pm 
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its nice to see 4/5 relax a bit from posting


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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Mon March 11, 2019 4:06 pm 
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Peeps wrote:
its nice to see 4/5 relax a bit from posting

It was truly becoming overwhelming.

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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Sun March 31, 2019 2:16 pm 
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Not sure where else to post this, but it's a constitutional question about free speech, which is still kind of the topic here I guess.

These signs got posted in a suburb of Boise recently:

Image

Now, I think it should be clear that, as annoying as panhandling may be, banning it clearly violates the First Amendment. However, it's not entirely clear whether the city has actually banned it. So it's had me thinking whether governments can get away with saying that something's not allowed without actually making it a crime. Is there some constitutional provision that would disallow this type of deception, or are governments practicing their own version of speech here? I think a sign that said "Please Don't Give To Panhandlers" or something that gives more a message of discouragement than forbidding wouldn't be as much of a gray area.


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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Sun March 31, 2019 2:58 pm 
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This has been a hot-button issue in Rhode Island and SE MA over the past few years. The ACLU has stepped in a few times on 1st Amendment grounds, so cities are trying their best to sidestep it in creative ways (i.e., banning loitering on traffic islands for safety concerns), but they've gotten wiser to it and started to require permits so fire departments, little leagues, and the like can fundraise in traffic.

https://turnto10.com/news/local/aclu-fi ... anhandlers

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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Sun March 31, 2019 8:27 pm 
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It's an unconstitutional attack on the most vulnerable among us. Stop criminalizing poverty.


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 Post subject: Re: The Constitution--Topic 3.3: Free Speech & Citizens Unit
PostPosted: Sun March 31, 2019 8:29 pm 
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Simple Torture wrote:
This has been a hot-button issue in Rhode Island and SE MA over the past few years. The ACLU has stepped in a few times on 1st Amendment grounds, so cities are trying their best to sidestep it in creative ways (i.e., banning loitering on traffic islands for safety concerns), but they've gotten wiser to it and started to require permits so fire departments, little leagues, and the like can fundraise in traffic.

https://turnto10.com/news/local/aclu-fi ... anhandlers

Yeah you can pass money out of your car at a red light to fund a little league team but not to buy a homeless person a sandwich.


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