FREE SPEECH AND OTHER PRIVILEGES
Oct. 12th, 2011 10:02 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
defrogITEM: New York state senators David Valesky, David Carlucci, Diane Savino, and Jeff Klein are proposing a bill to make online bullying illegal – which would also include flaming, trolling, outing, dissing and pretty much anything that involves saying anything negative about anyone.
To get around the inevitable First Amendment issues such a law might bring up, the senators argue that the 1A is a privilege, not a right.
Which, as you might imagine, irks 1A junkies like me.
The argument goes like this: free speech is “a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated”, namely by causing harm to others. Therefore, it’s a privilege, not an absolute right.
It’s true that Supreme Court rulings have long since established that the 1A is not 100% absolute and is subject to certain limitations, all of them based on the notion of addressing harm – libel, slander, yelling “Fire!” in a crowded theatre, inciting imminent violence, etc. But that doesn't mean the 1A is a privilege that can be taken away, and no court decision establishing exceptions for unprotected speech has ever ruled as such.
It could just be a bad analogy on the part of the senators. But the semantical distinction is important – the existing 1A exceptions were weighed against the fact that they were limiting a constitutional right, which means whoever argued for that exception had to make a very good case for that limitation. If free speech was merely a privilege, it’d be a lot easier to take away.
As for the argument of whether cyberbullying should be unprotected speech, that one has been kicking around for awhile now, and while I agree 110% that bullying – online or off – is a bad thing, I'm not convinced that resorting to censorship legislation is the way to deal with it. Eugene Volokh makes a better (and longer) argument [PDF] than me, but essentially, it comes down to a couple of key points for me:
1. The problem with any censorship law, especially one aimed at Internet communications, has always been ensuring that it only applies to the offending speech (in this case, cyberbullying kids) and not to more general uses of speech. There’s a fine line between cyberbullying and acting like a jerk online, and you can’t always trust a school principal, a DA or a parent to know the difference. This becomes even more problematic when you have to define just what counts as bullying, harassment, etc, particularly with schools implementing zero-tolerance policies that inevitably lead to some really stupid decisions.
2. For my money, the problem isn’t cyberbullying – it’s bullying in general. Cyberbullying is just a 21st century extension of an age-old problem. It’s a social/behavioral issue, not a speech issue. If people are serious about stopping bullying, it needs to be tackled in meatspace at the source of the problem. Banning it online won’t make bullying magically go away.
EDITORIAL NOTE: I’ve noticed that some conservative web sites have making hay of the fact that all four of the NY state senators arguing that the 1A is a privilege, not a right, are Democrats – who, as we all know, are all about taking everyone’s rights away.
That might be meaningful if it wasn’t for the fact that conservatives like Bryan Fischer have used the same “privilege” argument with their own calls for 1A restrictions.
But then Fischer is talking about religion, not speech, and says that the 1A is a right reserved for Christians – for everyone else (by which he means“terrorists” “Muslims”) it’s “a privilege that can be revoked.”
So technically it’s not the same thing, I guess.
Three o’clock high,
This is dF
To get around the inevitable First Amendment issues such a law might bring up, the senators argue that the 1A is a privilege, not a right.
Which, as you might imagine, irks 1A junkies like me.
The argument goes like this: free speech is “a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated”, namely by causing harm to others. Therefore, it’s a privilege, not an absolute right.
It’s true that Supreme Court rulings have long since established that the 1A is not 100% absolute and is subject to certain limitations, all of them based on the notion of addressing harm – libel, slander, yelling “Fire!” in a crowded theatre, inciting imminent violence, etc. But that doesn't mean the 1A is a privilege that can be taken away, and no court decision establishing exceptions for unprotected speech has ever ruled as such.
It could just be a bad analogy on the part of the senators. But the semantical distinction is important – the existing 1A exceptions were weighed against the fact that they were limiting a constitutional right, which means whoever argued for that exception had to make a very good case for that limitation. If free speech was merely a privilege, it’d be a lot easier to take away.
As for the argument of whether cyberbullying should be unprotected speech, that one has been kicking around for awhile now, and while I agree 110% that bullying – online or off – is a bad thing, I'm not convinced that resorting to censorship legislation is the way to deal with it. Eugene Volokh makes a better (and longer) argument [PDF] than me, but essentially, it comes down to a couple of key points for me:
1. The problem with any censorship law, especially one aimed at Internet communications, has always been ensuring that it only applies to the offending speech (in this case, cyberbullying kids) and not to more general uses of speech. There’s a fine line between cyberbullying and acting like a jerk online, and you can’t always trust a school principal, a DA or a parent to know the difference. This becomes even more problematic when you have to define just what counts as bullying, harassment, etc, particularly with schools implementing zero-tolerance policies that inevitably lead to some really stupid decisions.
2. For my money, the problem isn’t cyberbullying – it’s bullying in general. Cyberbullying is just a 21st century extension of an age-old problem. It’s a social/behavioral issue, not a speech issue. If people are serious about stopping bullying, it needs to be tackled in meatspace at the source of the problem. Banning it online won’t make bullying magically go away.
EDITORIAL NOTE: I’ve noticed that some conservative web sites have making hay of the fact that all four of the NY state senators arguing that the 1A is a privilege, not a right, are Democrats – who, as we all know, are all about taking everyone’s rights away.
That might be meaningful if it wasn’t for the fact that conservatives like Bryan Fischer have used the same “privilege” argument with their own calls for 1A restrictions.
But then Fischer is talking about religion, not speech, and says that the 1A is a right reserved for Christians – for everyone else (by which he means
So technically it’s not the same thing, I guess.
Three o’clock high,
This is dF
