First of all, "fuck." Let's just get that out of the way in the beginning, shall we?
Ok, wikipedia is being hacked or something, as it crashed explorer within seconds of opening the page. So, I found around 3.5 ookamillion hits for "free speech primer" on google, and chose this one for no other reason than I clicked on it first.
A little tidbit:
All together, there are six (6) rights guaranteed by the First Amendment -- religion, speech, press, assembly, association, and petition -- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Collectively, they protect what is known as the freedom of expression (technically consisting of assembly, petition, press, and speech). Association is a derivative right from speech, assembly, and petition.
More after the FREEDOM FOLD. (TM)
Too hard to understand? Ok, simply put: the government cannot suppress ideas, religion, religious expression, or criticism of the government. But, then it gets complicated.
Recently there have been some interesting comments about what other people can or cannot say on dkos. I myself found that I was wrong on what I knew about the first amendment. First of all, it's not just about keeping government power in check. It's also about deciding who should take care of what, and what should be taken care of by them.
Interestingly, there are a series of "tests" that are used to find the sublties of freedom of speech, for example:
The Brandenburg test - Merely teaching or advocating unpopular ideas must be distinguished from teaching or advocating the duty, necessity, or propriety of acting on those beliefs. The right to speak and organize cannot be abridged no matter if the group's message and purpose are repugnant to American values (such as KKK speech). In order for government to intervene, the speaker must subjectively intend incitement (imminent evil), use words which are likely to produce action (imminent action), and openly encourage or urge incitement (suggesting, for example, it's a duty to commit a crime).
There is even one for Internet flames:
The Gertz test - from Gertz v. Welch (1974) requires that private individuals who feel defamed in some communications medium must first remedy themselves of every opportunity in that medium for self-help, correcting the error or minimizing its impact on reputation. The Court must balance the need for absolute protection of the medium with consideration for those who lack effective opportunities for rebuttal.
There's a lot more interesting stuff here, like the importance of context, location, other laws in effect, etc. However, I chose this topic for a reason: I think 99% of the people here misinterpret freedom of speech and/or abuse it.
Imho, the basis of much of the recent confusion about what is or is not free speech at dkos can be summed up in this quick list:
Non-Criminal, eg. legitmate examples of freedom of expression:
- Words may be offensive, profane and vulgar...but not be fighting words.
- Words may be insulting and outrageous...but not be fighting words because there was no face-to-face confrontation.
- Words may make a person or audience angry, and be impolite, rude, or insulting...but may be protected by the First Amendment.
- If the person to whom the words are addressed is not angered and an immediate violent response is unlikely, there is no "fighting words" violation.
- Obscenity is a different concept than "fighting words"
- "Fighting words" and obscenity are considered to cause different reactions in people; anger v. sexual arousal.
- Graphic sex scenes and things that are absolutely disgusting...are not necessarily obscene.
- Nudity in itself is not obscene...but a community can regulate it in places where liquor is sold and when local ordinances apply.
#1 appears to be were the most confusion lies: if I feel like punching you in the nose, you must have, somehow, said something that is not free speech.
However, #2 says, by definition, Internet communication, since it is not face-to-face, cannot be considered "fighting words."
Therefore, the key test is: does what this troll say make me angry? If yes, then the next test is: is there any other reason this person could have said this? If yes, WHAT WAS SAID IS PROTECTED FREE SPEECH. IF NO, THEN IT IS NOT.
For example: "I will kill you." Not protected.
"I want to kill Kerry/Bush/Kerrik." Protected.
"I support Kerry/Bush/etc." Protected.
"I support evolution/creationism." Protected.
"Creationism rulz!" Not protected.
"Creationism rules because I hate evolution." Protected.
So, because i am an aggrandizing asshole, I propose The Furious Test: Is there any other possible reason the person said what they did other than to make other people angry? If so, than what that person said is protected. If you happen to get angry, then that does not even qualify for the test. Any comment can be defined as "trollish" if a) it's sole purpose is to generate anger, and b) there is no other discernable purpose.
Possible anger-generating-yet-protected comments (in italics) with an unprotected version:
- Creationism should be taught in schools. vs. Ha ha ha, creationism is going to be taught in all the schools! Eat it you pinheads!
- A woman might not be the best president. vs. You are stupid to think a woman could be president.
- I hate America. vs. I can see YOU hate America.
Interestingly, this leads to another possibility: many of the common comments here that are not from trolls fall into the category of unprotected speech:
- Nobody must say anything negative about Kerry, we're all on the same team.
- You shouldn't say that or else...<insert negative effect here.> (see the "chilling effect", ibid.)
- You are an asshole for thinking <insert idea here.>
I wonder: after looking at this, I think I have seen more troll comments that fall under first amendment protection than "rah-rah/same team/shut yer piehole" comments that aren't protected.
What is scariest, to me: how many people, after reading this, will continue to think they are right about everything, everybody else is wrong, and everybody else should shape up?
It's a mad, mad, mad, mad, sad, sad, sad world.