3 Libertarian Exceptions. . .

Stompwampa

Diabloii.Net Member
3 Libertarian Exceptions. . .

Are there any exceptions to our wonderful First Amendment Rights?
We got to talking about this in my Mass Comm Law class. The prof gave 3 exceptions that have continuously stood up in court, and are approved of by even the mighty Libertarians in all thier glory.

1.) Defamation (Slander/Libel)
2.) Obscenity
The Suprme Court said:
Obscenity Defined As:
1) A thing must be prurient in nature

2) A thing must be completely devoid of scientific, political, educational, or social value

3) A thing must violate the local community standards
The FCC said:
Obscenity As Defined by the FCC
- An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
- The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
- The material, taken as a whole, must lack serious literary, artistic, political, or scientific value
3.) The Right of the Government to Protect Itself - I.E- A Clear and Present Danger

Suprem Court Justice Oliver Wendell Holmes said:
"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right."

What do you think? Are there/should there be any exceptions to our First Amendment rights? There are those purists, such as Justice Hugo Black who would say that under no circumstances should our rights in the First Amendment be refused or overturned in a court of law. And yet, we have these three exceptions that have stood the test of time.

Discuss.
 

Dondrei

Diabloii.Net Member
Don't forget incitement.

I've always disagreed with 2) and 3), and I have grave reservations about 1). I might even be in favour of all three being thrown out.
 

Dondrei

Diabloii.Net Member
I hold those truths to be self-evident. I can't see how else I could justify them; I believe free speech is more important than people getting offended and I also think that no non-tyrannical government needs to "protect itself" from free speech. The whole "it's a war, so shut up and hand over your liberties" thing... well, enough said really.

As for defamation, slander, libel and all that - it's wide open for abuse and indeed it is constantly being used to prosecute people for free speech. I tend to think it is so vulnerable to this that we may well be better off without it entirely.
 

Bordillo

Banned
Stompwampa said:
Are there any exceptions to our wonderful First Amendment Rights?
We got to talking about this in my Mass Comm Law class. The prof gave 3 exceptions that have continuously stood up in court, and are approved of by even the mighty Libertarians in all thier glory.

1.) Defamation (Slander/Libel)
2.) Obscenity


3.) The Right of the Government to Protect Itself - I.E- A Clear and Present Danger


What do you think? Are there/should there be any exceptions to our First Amendment rights? There are those purists, such as Justice Hugo Black who would say that under no circumstances should our rights in the First Amendment be refused or overturned in a court of law. And yet, we have these three exceptions that have stood the test of time.

Discuss.
Yea but you have to realize that we live in a much different time then when the constitution was made. I mean by your thinking lets look at the right to bear arms, should there be no exceptions for that ammendment? Should kids be allowed to bring guns to school, little leage?
 

Moosashi

Diabloii.Net Member
Obscenity hasn't stood the test of time. Our perfectly legal art, porn and figures of speech would be considered obscene fifty years ago.
 

PlagueBearer

Diabloii.Net Member
Bordillo said:
Yea but you have to realize that we live in a much different time then when the constitution was made. I mean by your thinking lets look at the right to bear arms, should there be no exceptions for that ammendment? Should kids be allowed to bring guns to school, little leage?
Children have never had all the rights of an adult. I personally think that no weapon with defensive value should be prohibited from purchase (or made practically impossible to purchase via added tax). Simmilarly, no speach should be prohibited either, on the air waves, print, or otherwise.

(I say "defensive value" to exclude entirely offensive weaponry, such as neuclear explosives)
 

Dondrei

Diabloii.Net Member
Bordillo said:
Yea but you have to realize that we live in a much different time then when the constitution was made.
In some ways we do, in some ways we don't. Guns have changed drastically since those days, and so has the context of that debate in general. Free speech on the other hand, has never been a threat to the running of a non-despotic government in times of crisis or otherwise (and we are certainly not in a time of crisis now, not by any stretch of the imagination). Wasn't then, isn't now.
 

DurfBarian

Diabloii.Net Member
PlagueBearer said:
(I say "defensive value" to exclude entirely offensive weaponry, such as neuclear explosives)
Thanks to the concept of mutually assured destruction, nukes are defensive too! That mugger will think twice about coming after your wallet if he thinks you might turn his entire city into screaming fire.
 

PFS

Diabloii.Net Member
PlagueBearer said:
Children have never had all the rights of an adult. I personally think that no weapon with defensive value should be prohibited from purchase (or made practically impossible to purchase via added tax). Simmilarly, no speach should be prohibited either, on the air waves, print, or otherwise.

(I say "defensive value" to exclude entirely offensive weaponry, such as neuclear explosives)
Landmines?

(Nukes do have a defensive value too - in that people are going to think long and hard about invading you if they know you'll drop a nuke on their country. But admittidly their value for personal use for self defense is pretty limited)
 

Talga Vasternich

Diabloii.Net Member
dondrei said:
In some ways we do, in some ways we don't. Guns have changed drastically since those days, and so has the context of that debate in general. Free speech on the other hand, has never been a threat to the running of a non-despotic government in times of crisis or otherwise (and we are certainly not in a time of crisis now, not by any stretch of the imagination). Wasn't then, isn't now.
I'm too lazy....
When was your Constitution signed, and does it in any way resemble the one in the USA?
 

PFS

Diabloii.Net Member
Talga Vasternich said:
I'm too lazy....
When was your Constitution signed, and does it in any way resemble the one in the USA?
It was done in about 1900.

It's more about the government setup and defining which branch of government can do what.

There's nothing about freedom of speech, gun ownership or the like.

Similar to the UK where all this stuff is done more on a gentlemans agreement between the government and the people. Which is why we can't protest (including a single person peacefully reading out names of war dead) within a 1000yards of Parliament unless the government gives us permission without facing a 2year prison sentence.
 

Merick

Diabloii.Net Member
Which one does "yelling 'fire' in a crowded theatre" fall under then? That's what we always talked about in school.
 

SaroDarksbane

Diabloii.Net Site Pal
Stompwampa said:
Are there any exceptions to our wonderful First Amendment Rights?
I'll take a shot at it:
1.) Defamation (Slander/Libel)
Perhaps, if what they say is provably false. This is, however, not necessarily a first amendment issue, as the plaintiff isn't necessarily the government, nor is it usually a criminal offense.
2.) Obscenity
No way. Obscenity is in the eye of the beholder, and in no way should be punished by the government.
3.) The Right of the Government to Protect Itself - I.E- A Clear and Present Danger
Again, no way. The test of a nation's strength in upholding its core values is measured during times of crisis, not during times of peace.

Otherwise, you get the whole "If you don't agree with the war you must be a traitor!" deal that weak-minded partisans like to spew, and that's just crap.
dondrei said:
Don't forget incitement.
That's a good one too. The line is nice and blurry there.
 

myleftfoot

Diabloii.Net Member
dondrei said:
I hold those truths to be self-evident. I can't see how else I could justify them; I believe free speech is more important than people getting offended and I also think that no non-tyrannical government needs to "protect itself" from free speech. The whole "it's a war, so shut up and hand over your liberties" thing... well, enough said really.

As for defamation, slander, libel and all that - it's wide open for abuse and indeed it is constantly being used to prosecute people for free speech. I tend to think it is so vulnerable to this that we may well be better off without it entirely.
Won't someone think of the children?
 

Dondrei

Diabloii.Net Member
Talga Vasternich said:
I'm too lazy....
When was your Constitution signed, and does it in any way resemble the one in the USA?
Sometimes I get lazy and use the word "we" when referring to Americans.

Our Constitution, bless its little cotton socks, isn't worth the paper it's written on. Like PFS said, we don't even have a Bill of Rights. Nothing ever gets done in this lazy-arse country.

SaroDarksbane said:
That's a good one too. The line is nice and blurry there.
Yeah, although apparently not blurry enough for our government, they recently ramped up our sedition laws...

Merick said:
Which one does "yelling 'fire' in a crowded theatre" fall under then? That's what we always talked about in school.
Good question. I don't think it fits any of them.
 

jimmyboy

Diabloii.Net Member
Stompwampa said:
Are there any exceptions to our wonderful First Amendment Rights?
We got to talking about this in my Mass Comm Law class. The prof gave 3 exceptions that have continuously stood up in court, and are approved of by even the mighty Libertarians in all thier glory.

1.) Defamation (Slander/Libel)
2.) Obscenity


3.) The Right of the Government to Protect Itself - I.E- A Clear and Present Danger


What do you think? Are there/should there be any exceptions to our First Amendment rights? There are those purists, such as Justice Hugo Black who would say that under no circumstances should our rights in the First Amendment be refused or overturned in a court of law. And yet, we have these three exceptions that have stood the test of time.

Discuss.

There's actually a couple of more exceptions- child porn, false advertising, fighting words.

And it also depends on whether the speaker is in a PUBLIC forum or a NON-PUBLIC forum. Makes sense right? You can't drop f-bombs on a public school kindergarden playground during recess.

Besides, it's not really an absolute ban. Like most other Constitutional issues, it's a balancing test... whether your reason is soooo important that it deserves voicing.

I'm in the category that one needs to be flexible about the law. Time changes. Got to flow with it.
 

PlagueBearer

Diabloii.Net Member
PFS said:
Landmines?

(Nukes do have a defensive value too - in that people are going to think long and hard about invading you if they know you'll drop a nuke on their country. But admittidly their value for personal use for self defense is pretty limited)
Landmines have an inherent defensive value, and so, yes, their purchase by American citizens should not be prohibited.

And no, the concept of retaliatory offensive power does not make said offense "defensive" in nature.
 
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