How Free Speech Works

your door, then it's not a door. So one by one I've been replacing them with wood, solid doors. And I went and did that for our bedroom, and man, oh man, was it frustrating. Oh hanging them because they didn't want to hang. It's the worst, like nothing straight, like, oh, that looks good, and then it goes to shutting like whack. Well, I'm sure it was straight, you know, a hundred years ago, you know, and then over time the house settled in and now it's it's doing its own thing. So I

had to shave the door in so many places. It looks like a doctor seue store. Oh cool, you should plant one of those weird doctor Seue's palm trees in your yard. To really complete it, it's called marijuana. So I'm glad you just said marijuana, chuck, because you have every right to say the word marijuana in this country. It's a free country. You can say the name of a plant, you know, people, people do say and have long said, this is a free country. I can say

whatever I want. And free speech is one of the basic hallmarks of what makes America free country. Freedom of speech. Um. But America is not the only country that enshrines a freedom of speech protection and it's charter. Yeah, there are varying degrees of it in many many countries. In some countries there's not very much. In other countries, there's a lot. In the US is arguably one of the leaders, although some people point to Europe's and we'll talk about those later.

But some people point to Europe's free speech protections and say, there, those people know what they're doing. Um. In the US, if you look at free speech, you go to the Bill of Rights. Typically it's a great place to start, and you will find you will find in the First Amendment of the Constitution, which is the first part of the Bill of Rights. It says in there specifically that Congress will make no law right abridging the freedom of speech.

It's as simple as that. It doesn't say unless speech says this, unless somebody says that, unless you really don't like the guy there is no. It's absolute. It's an absolute protection of freedom of speech. Yeah, and that goes on. I think, Uh, it's pertinent to mention abridging the freedom of speech or of the press, or the right of the people to peaceably to assemble founding Father JFK and

to petition the government for a redress of grievances. I'm sorry that on those, Ted Kennedy, because we're all very important, you know, sure they are, Oh yeah, right to a symbol, it's a pretty important one. Well yeah, And because we had just left the country, uh one independence from Britain, who at the time was like no, no, no no, we we very much want to squash any dissenting opinions about the ground. Uh. And people are getting thrown in jail

for that kind of stuff in the colonies. They were trying to quash a rebellion, and that's a pretty important part of it. If you're if you're a monarchy, an absolute monarchy that wants to keep the rebels in check. You just say you can't say certain things, and if you do, we're going to throw you in jail. It has a freezing effect. Yeah, or they're weird punishments, like

when they said stick a sock in it. They went, yeah, okay, and they went no, really, stick a sock in it by law for eight months and tape it, tape it shut. With my dirty sock in your mouth, my dirty sock, my wool sock from my wet boots. Um. Quickly though, I think we should point out that as we were going through this, like I realized you could have an entire podcast called the Ins and Outs of Free Speech. Yeah, like a series, a whole show. You have a whole

show about it, not just an episode. So this is you know, this is an overview as we do that is going to pick and you know, talk about various court cases over the years, rulings and writings of judges, um That are pertinent. But man, it's deep and wide. Yeah, it is, especially considering that again, when you go to the Bill of Rights, it just says Congress can't pass any laws that abridge the freedom of speech. They're like,

why does he keep writing right there? And chuck. Not only though, was it this in retaliation reaction to um, the British monarchy. It was also a big part of Enlightenment thinking as well. The protection of freedom of speech was a huge aspect of the Enlightenment. And you know, obviously the United States was founded during the Enlightenment and in as part of the Enlightenment. It was an Enlightenment experiment, right, Yeah,

like we don't want to restrict thought or expression. Um. And you know, some might say that if if the Britain hadn't been so intent on squashing dissenting opinion, then we might not have been so Enlightenment aside, so uh, heck bent on ensuring those rights. So maybe it all worked out for the best. Yeah, I think so, And Britain came around. Right. You can still get a sock thrown in your mouth, can you? I don't know, man, it's on the book still. I just don't know if

they do it anymore. This socks are much nicer now, that's right. They're a happy socks. So since you have this very broad um protection of freedom of speech, right, but then there's nothing more to be said about anybody can say anything they want. Not quite true. It isn't true because we have three branches of government here in the US. We do. Yeah, it turns out I thought that was just one. You got the executive branch, which

is the one I think you're thinking. Uh. Then you have the legislative branch Congress, okay, which is actually separate. And then you have the third branch, the judicial branch. Yes, they are equal and important branch. And with um the

congressional the legislative branch. They pass laws, people go out and break laws, People get convicted, people appeal their convictions, and in some cases those convictions and the laws are questionable enough or interesting enough that it will eventually make it to a high enough court that the court will rule on whether or not that law holds up to any constitutional standard. Over time, freedom of speech has been shaped and expanded and paired away, um by the courts

here in the United States. Yeah. Like maybe more so than any other kind of segment of law, or maybe not. But I'm gonna just as as an complete um armchair attorney, I'm gonna say that perhaps free speeches has been challenge more and whittled down and defined more than maybe any other aspect of law. Yeah, because one of the big things that the courts did with freedom of speech was to really expand the definition of speech. Yeah, it's not

just words that come out of your mouth or even right. No, Like it can be a T shirt that says f the police, or could say um, um uh yeah, hug the police. Sure, somebody might find that offensive. Who knows, thank you for coming to my rescue this thing. It could be a billboard, it could be um, it could be a pamphlet you hand out, it could be an act, symbolic act, flag burning, that was a big one, remember

that in the eighties. Absolutely or or refusing to say the pledge allegiance that was in the I think World War two, Yeah, which is actually now protected as because free speech can also mean the freedom to not speech. Yeah, because up until I think in the Supreme Court ruled on kids were being forced to say the pledge whether they wanted to or not. In the Supreme couiside, no, we think freedom of speech is really freedom of expression. And if you don't feel like saying the pledge, you're

free to express yourself in that way. Yeah. And as you'll find Um. Throughout the show will kind of probably say this over and over. Freedom of speech doesn't have a lot to do with something you might find offensive or repugnant. Um. Generally, the US has sided on protecting that right regardless of whether or not you're offended or

you think it's awful. And that's kind of what makes America great in a lot of ways, is you know what, who are we to decide what ud you know, to legislate morality essentially and what we'll get into all this with obscenity and all that stuff and pornography. But um, even when it comes to like, you know, I don't want to say the pledge because of this reason, the courts have said, you know what, that that you're right, this is America. We may not like it, but that

you're right. Yeah. And the whole reason behind this too, it's it's easy to just take it for granted, especially if you were raised in the United States, that you have that right. Who cares what the basis of it is. You can say basically whatever you want, you know, Um, But when you really dig into why the founders sought to protect this and why it's been upheld and defended

so much, over the years. Is because the idea is that if you are free to speak your mind without fear of being put in jail or killed or beaten by a mob, um, that you are going to introduce new ideas to the marketplace of ideas. And through this you're gonna have an exchange with other people, and a lot of times it's going to be contentious and it's going to be ugly, but over time things can evolve and get better and change for the better through this

exchange of ideas. And to ensure that the engine of cultural evolution continues unabated, you have to have the free exchange of ideas. And to have the free exchange of ideas, you have to have protection of free speech. Yeah, because if not, you have the government being the one saying, well, no, here are all the ideas right exactly, and um, don't worry about having any of your own. Yeah, these are these, these are the ones. Yeah. And in a lot of cases,

those things can come across as really great ideas. UM. Here in the US, up until the UH, I think the mid fifties or early sixties, there were laws on the books where it said you can't you can't speak ill of groups like you can't say anything about um, Jewish people or Muslim people or any group. You can't say these things. It's speech was not protected rights. It

was called group libel. And that actually sounds pretty good in a lot of in a lot of senses, like, yeah, we shouldn't be talking trash about entire groups of people, because it does it can lead to two problems. But that same prohibition on speech came to be exploited by white Southerners who were in power in the fifties, who said, Martin Luther King, he's trying to incite violent social change with his his radical ideas. Somebody needs to uh put a duct tape over that guy's mouth, stick a sock

in it. He doesn't have the freedom to say this. And actually, our right to say hateful things about other people was a direct result in the United States of the Civil rights movement UM being protected by the courts against white Southerners who sought to UM to uh squash their their speech. So hate speech, yeah, is due in part in part to Dr Martin Luther King and and trying to advance civil rights. In a weird turn of events, Yeah, it really was. Uh. And in Europe, and we'll talk

about this a little more. Um. Like you said, some people say they have nailed it. They don't protect hate speech, and you can't be uh, you can't deny the Holocaust publicly, and you can't um say, you know Jewish people, you know x y z or this group of people are like this. Um. Some people say that's you know, that's kind of right on the money. We have taken a

different tech here in the US. Right in Europe does that because they have a pretty recent example of what can happen if you do have freedom of speech, and that totalitarian government can hijack that freedom of speech and use it as propaganda to incite hatred amongst an entire population um or even as as um this this one author put it to prepare them for extermination, just basically saying like, hey, everybody, get those guys. There are the

reasons you don't have jobs. They're the rapists. They're the people who are who are going to kill you and steal your your family's wealth and well being. So get rid of them. Turn on them. And that's the whole point of saying, nobody can incite hatred through speech. In its these European democracies. Um, because the state has done it before. Yeah, and we all see what happened there. Um, should we take a break. I feel like that's a

good intro, broad, all encompassing, passionate, all encompassingly. All right, Well, we'll come back here in a minute and get down to the nitty gritty of some of these court cases. Okay, sk alright, trend um. So if you want to go back a little bit to Justice Oliver Wendell Holmes, Jr.

Son of one of the famous Justices the United States. Uh, in a lot of ways, but very specifically because everyone has sort of heard the the old thing that, Um, you can't yell fire in a movie theater and say that's free speech, because that will in the case of in the nineteen nineteen case Shink the United States, UM, Charles Schenk was arrested for distributing material basically that said, hey, um, don't the the US draft military draft is bs um,

don't do it. Fight against it. Uh. And they said, you know what, that's that's espionage actually, And that went all the way to Supreme Court, and they did not protect that right because, in the words of Oliver one to Holmes, they said, did the words create a clear and present danger that they will bring about substantive evils? Congress has a right to prevent and that sort of

in line. And later on in the same ruling, is talking about yelling fire in a theater as an example, like, you know, you can't do that because I don't in sight panic if people get stomped. Right, And and in this case this kind of set the precedent for or the tone for all free speech cases to follow. Um is weighing the the individual right versus the public good or in this case, the individual right versus UM creating

some problem or evil. As he put it, that Congress has a right and an interest to prevent a danger to the country, right. UM. In this case, really what they were saying was they were suppressing criticism of a government program, the Draft. Um. And then but Holmes was fine with that. But within a year I think he saw his UM his test, you know, does it present a clear and present danger being used in a way just to squaw dissent when a bunch of anarchists who

were just generally advocating the overthrow of the government. Um, rather than need to do this on this date at this time, Um, they were used, they were convicted under the test that Homes created. So he took what was called the Great Dissent and actually dissented against his own former test and said, no, it has to present a clear and present danger, present meaning like it's about to happen or you know the time that it's going to happen, and it's a clear danger, like this is what's going

to happen. Because this person said that, So that that ultimately became the format for um what we'll talk about in a little bit, which is inciting violence. Yeah, and that's not to say that, um like the ruling there, like you said, was about a clear and present danger, not necessarily the fact that Charles Schenk was against the war, because we have a long history in this country of being able to uh be a wartime dissenter and talk

about it and be protected. Um. During Vietnam War, there was a man who had he went to an l A courthouse and he had a jacket that said, you know, F the draft, but it was really spelled out, it's so ironic that we're censoring ourselves in this one. But uh F the draft and they um, as you will always almost always see here. These people are, like you said, usually arrested, convicted, and then that's when they're well, maybe hippies,

you never know. And then that's when the courts take it up and potentially either protect or don't protect the speech. In this case, the court said, no, you're within your right because someone could see your jacket and then not look at it, right, And that's a good point. Like you you can just look away from the guy's jacket, right. You can also not take the pamphlet that the guy's handing you. You can also you can also not rent the movie that um that you find offensive. You can

also turn the TV station. You can also turn the radio down. You can also not go to the website. You can turn our podcast off. To me, well, you shouldn't, so you could. To me, the alternative of not not receiving some speech that you find offensive like being able to get away from it. That to me is the ultimate test for for whether speech should be restricted or not. And since you can in virtually any situation get away from speech except maybe skywriting, we should probably really regulate

sky riding pretty pretty toughly. You can look down at the ground, but I guess you could. Yeah, so as long as you can get away from it, or more to the point, shear shield your children from it. I don't think it should be. I don't see any reason for it to be um entailed for skywriting. You would have to argue in court that it is such a delight to children that they can't help but look like you would have to physically restrain them and put blinders

on them, exactly, and that's unreasonable, your honor right. You write a curse word and then do a drawing a barney, and that would satisfy that is Barney still a thing? So I think barney will always be a thing. I don't know. Uh So. Over the years have been, like we said, a lot of court cases that have kind of whittled away and defined not whittled away, you know, because that molded shaped, molded and shaped. Uh So. Marvin Old Marv ran an adult book business, and he what

he did was he sent out mailer's. He liked to send out a mailer right, and um these mailers would show up at houses where you know, something, my kid might read it, or someone easily offended might read it, or not so easily offended might read it. Uh. And there was a mom who uh this was her adult son. Yeah, it was a mom and her grown son who's the manager of I guess the family restaurant. And they childlike

maybe he was his eyes were burning. Um, I don't know, maybe his mom was just just treated him like a kid. Who knows. But they said, you know what, you know, this guy shouldn't be mailing these randomly to just whoever. We certainly don't want it, so we're gonna call and complaint. And Marvin Miller ended up getting arrested for um obscenity. And this is a huge This turned out to be a huge case. Yeah, and went all the way to the Supreme Court, and um, yeah, it was. It was

what you call a um, what do you call that? Landmark? Landmark watershed? Watershed. I couldn't think of it. I was like, we did a podcast on it recently. It's an Indigo Girls song. That's right. It was a watershed case. Miller v. California, And I'm gonna say V instead of versus. I think we've talked about that before, right, Um, it makes you sound more legal easy, yeah, and everyone likes being legal eazy. Uh.

In nineteen seventy three. Like I said, the Supreme Court heard the case and they found that his speech did not qualify for for protection. Um. But here's the hitch. They didn't rule on the obscenity. They ruled that, hey, we're protecting kids, and you can't just mail this stuff to a house because kids live in houses, and so it was an appropriate content for children. Um. And what it did as well is is it specified a test

for defining obscenity. Which, boy, over the years, this has been a really tough thing, and it seems like over the years of courts round me don't want any part of that. Now. If there's one thing too that as far as restricting free speech goes, that drives me up the wall, it's obscenity. The Court should not have anything to do with obscenity, and mostly they don't wanting on it. Right.

There's this great quote from Hugo Black, who as of this podcast has become my favorite Supreme Court justice of

all time. He said in Michigan versus State of New York, Um, I wish once more to express my this is my Hugo Black, By the way, I wish once more to ex pressed my objections to saddling this court with the irksome and an inevitably unpopular and unwholesome task of finally deciding, by a case by case, site by site personal judgment of the members of this court what pornography whatever that

means is too hardcore for people to see or read. Yeah, basically, they were tired of sitting in court and looking at like pictures of bestiality at least, and ruling on this stuff like what about this one? What about this one? What about this? The thing is they were looking at like pulp pulp books, Like Michigan was a guy who had a publishing house of pulp books that showed like B D S. M or lesbianism or masturbation or whatever on the cover. He's like, this is this is actually

pretty nice? Right, They're like, man, it's a perk of the job, but we shouldn't have to do it anyway. And so the idea that that um, the Court is ruling what is obscene is and what is not is it's legislating morality, clear and just clearly it's legislating morality. And I don't think the Court has any any right to that at all, but they have they have a long tradition of it, and over time they've actually come

to protect pornography. Um, with the exception of child pornography, which you're not really gonna You're gonna be hard pressed to find anybody who argues for freedom of speech as far as child pornography goes. UM. And then obscenity, which is which came out of this, the three pronged tests to determine what's obscene came out of that Miller the

California case, and it says this. It says that if the average person using contemporary community standards can look at something and says that this arouses the prurient interest, does it meaning sexy time? Yeah? Uh, that's that's the wronged one. And you have to satisfy all three of them. Is this patently offensive sexual content or patently either one? I say patently and I got that from Mr Burns. Oh well, I say, I say patently like Mr Burns does. Yeah.

And then the final one is a big one. Uh, it's whether the work, taken as a whole, lack serious literary, artistic, or potentially or political or scientific value. Right. That's that's subjective, extremely subjective, Like who who it literally says if it's artistic, right? Who who says what's art and what's not? Yeah, and very famously, uh Justice Potter Stewart the very very famous line when asking about obscenity or pornography said I know

what when I see it? Right? But they they have long said like we we one of them said, we may be trying to define the indefinable. Yeah, it is indefinable. You ask a hundred people what pornography is and you'll get a hundred different answers. And so as a result, some courts have said, uh, yeah, this community, the jurors decided that this is obscene. So people go to jail for depicting sexual acts or something like that that some

jurors in that town found um distasteful. And as America has has long had a very puritanical hang up with sex and nudity. H violence, bring it on, but yeah, nude bodies, shame, shame. I think that's probably my issue with it too, is we're super like, we'll expose kids to violence, extreme violence at a very young age. But sexuality, Hey, you wait until you're you wait until your parents are dead.

You understand wonders for the therapy industry. Though. That's true, So hold on check there's one other thing, the other part that the other problem I have with the um defining obscenity is that there's no national standard. The courts even said it would be impossible to come up with a national standard. So if Miller had been tried in a community of swingers who are like into that stuff, um,

he probably would have gotten off right. But because he was tried in a community that decided that no, this is this is obscene, it was deemed obscene, whereas in another community it may not have been deemed obscene. That's no test. Well yeah, and that that became a big deal at one point because they basically, um, the law said that community standards are like, you can't have a national standard because what what the someone thinks in Skoky,

Illinois is not what in Sin City, Las Vegas. They have an entirely different definition of obscenity and pornography, you know, And they're right. Yeah, I guess they are right, which is which is why I you I to me, it's one or the other. Either get rid of anything that could possibly be considered obscene or you allow it all. So obscenity. It's obscene. It is. Well, we'll get more into a sinity too, But um, there are a lot of other facets of free speech that you might not

really think about. In two thousand thirteen, that was a case Bland v. Roberts, where there were these two dudes, um that work for a sheriff department. You know, sheriff's are elected. They were running for office, and they were fired for commenting and liking um on an opponent's Facebook page, which you know, this gets into in the digital age and the Internet age, a whole different slew of questions to be answered, and they appealed that case and then

in one actually yeah, Bland v. Roberts. As a result, Facebook likes are considered protective protected free speech under the First Amendment. Now yeah, but ibronic, well maybe not ironically, but Facebook and social media in general you can also I mean it's at their discretion whether or not they take something down, and you can't say, well, that's free speech, and it's like, no, this is our our private room. Essentially is our home. And inside a private home you

can tell someone to shut up private home. Private companies. Yeah, social media platform like if you show up to work in h F the police shirt. They can fire you or tell you to change it. And if you say no, no, no, like this is my free speech, so go no, this is my business. This is not a free speech. So like like the mall, yeah, oh yeah, that's right, poor Victor Gruing Uh. And here's the thing too is and this isn't really section in our notes. But I get

kind of a riffin here. I get kind of bugged these days with I think a lot of people have the notion that freedom of speech means also freedom from consequence, and those are two different things. Like freedom of speech means that you were not going to be well, you might even be arrested and convicted, but eventually it will

be overturned. You'll be vindicated. But if a business or a comedian or a TV show does something that people find offensive or provocateur YouTube and someone wants to pick at them and shut them down or boycott them, and they cry free speech, it's like, you know, you know, you said that you got away with it. You're not in jail, doesn't mean it won't be consequences. Well, yeah, the right to protest is enshrined in the same amendment free speech. But I think, yeah, I hear a lot.

It seems like more and more of these days where people, um, people whine about the consequences of their own free speech and that's not enshrined in the Constitution. There there very likely will be consequences, right, people will hate you maybe, But it's like you said, though you know the the the it's there to protect the unpopular opinion. There's this guy, Um who's a an expert on free speech at Penn State.

I believe um. He said, we have a first Amendment to protect unpopular expression or the minority viewpoint, because we don't need a constitution to protect the majority what the majority thinks. The majority takes care of itself. It's good point. It's the people who everybody else hates and what they have to say. Um, that is protected by the constitution. Yeah. And uh, Harvard law professor Noah Feldman, in a very Unharvard law like way, said, Uh, if your feelings are hurt,

then that's your problem, snowflake. You didn't say Harvard like JFK. He didn't say snowflake. I was kidding, no, but he he. What he was pointing out was basically the sentiment behind free speech in the United States that as long as you are not physically harming somebody, you like, emotional harm is whatever. We're not even gonna it's not even gonna register. Well, although that one article you sent that op ed there there was the guy that argued that emotional harm was

worse than physical harm and had a longer lasting impact. Um, So you know there are two sides to every argument there. Well, that's one of the reasons why Europe has said no hate speech. It's harmful. Yeah, yeah, Like even if it isn't physically harmful, it's emotionally it's an intellectually harmful. It's it's not good. All right, So we've dabbled in an obscenity. Uh, one of the other and we'll talk a little bit

more about it. But one of the other things that um, you can you can have insulting speech, but that there's something called fighting words, um that is not protected and it's can be difficult to determine. And again over the years the courts have tried to do so. But in nineteen sixty nine that was kind of a landmark case Brandenburg v. Ohio, where Clarence Brandenburg was at a clan rally in Ohio and said, we are we're not a

revengeent organization. But if our president, our Congress, our Supreme Court continues to suppress the white Caucasian race, please, it's possible that there might have to be some revengeance taken. So they should have jailed him for grammar. Revengeance is, of course not a real word. Make neither us revenge it. Although I think it's in a video game now. Someone said, yeah, uh, revengeance too, don't. I don't think it's called that. Revengeance two or parentheses? S I C. Right? What does that

stand for? Again? Uh? Sick? I can't remember, Like that's so sick. They got it wrong, right, I don't. I don't know how. Yeah, somebody will send it in, people who tend to write it after the stuff we right, we don't usually use it ourselves. Yeah, it's funny, though, I have this thing, you know, just the weird quirky things that everyone sort of does in their head in life.

Whenever I see s I C. Written in an article, I always try and think of what word either they got wrong or were replacing in the article, you know, to make make more sense. Well, no, they use it too, because well, if it's a misspelling, or if it's not a word, it's basically the writer or the editor saying, this guy got it wrong, not me, yeah yeah, but or am I thinking of a different was it? What is it? When they um, that's just when they put it in brackets and they put like there or something

like oh okay. The person lets it out sick also goes in brackets, but it's basically saying I'm aware that this is misspelled, to show what a dummy this guy is. I think I do it in both cases, like if it's a made up word, I'll try and think of what like they meant, or like the other one where there's just a parentheses and they just basically add something to make it more sense, I try and think of, like what did they say to begin with? It's a

weird thing. No, I know what I mean in my head right now I have for your eyes only you're trying to figure out what I'm thinking. The brains brain does some terrible stuff. I have that in my head now too, because you came in singing it for your Why do you It doesn't make any sense? It doesn't. I haven't heard the song in decades, a week long ear worm from a song you haven't heard in decades? Was it in a dream? I don't think so. You're

dreaming about she and Easton Again. That's a good movie though, Uh, that's the Connery one on it? No, No, that was Roger Moore. Are you sure? Yeah? Sure, I'm thinking was Sean Connery's last one? Yeah? All right? Maybe right here go to the map for that one. All right, um, all right, Getting back to Brandenburg, the the clan member who who didn't know how to talk right, Um, he didn't talk good. He was arrested for advocating violence, and

he won. Supreme Court decided in his favor, and thus began the history, the long history of the United States, saying, you know what, the clan wants to have a rally out in the public town square and they apply for their permit, you gotta let him do it. But again that actually that the clans hate speech being protected was lumped together and came out of the civil rights movements

freedom of speech being protected as well. Yeah, because they were like, well, hey man, stokely Carmichael says that you know, we gotta like take take the take control from the whiteis rise up and take control. Like that's hate speech and the supreme courses, you know what, you're right, and that's protected. So so it is what the clan saying or Illinois Nazis and Skokie second time Skokies made an appearance in this episode. Yeah, why not a third um

the usual suspects. So yeah, anyway, I think what you're you're saying is as a result, hate speech is has a decades long tradition of being protected at any and all costs unless you are using it to incite violence. And that ties in to that um original prohibition on free speech that Oliver Wendell Holmes came up with, is

that it presents a clear and present danger. So rather than using that specifically to incite violence, you basically have to be saying it's not enough to um to say, uh, like, we black people need to rise up and take control of the United States, and if it has to be violent, it has to be violent. But we can't live like

this anymore. Right If if Stokely Carmichael saying something like that, or Malcolm X is saying something like that, that is protected speech even though it makes a lot of people, or it made a lot of people uneasy to hear that kind of thing, and they said, hey, they're trying

to start a race war. It's still protected speech. On the other hand, if you said, or stokely Carmichael said everybody needs to go get the shotguns and we're all gonna be here on Tuesday and we're gonna take the streets Tuesday afternoon, that would not be protected because he would be directly inciting violence. Yeah, what what are the two things that likely? And it has to the advocacy for violence has to be um directed to inciting or producing imminent lawless action, and then it has to be

likely to incite or produce such actions. So it's it has to it has to be happening at some point that you can point to next Tuesday, something that's not vague or indefinable, like we should do this in the future if um, if we're not granted greater rights. So it has to be something specific and it has to be likely to produce that effect. Right, So if somebody is a great order and the people they're telling to get their shotguns all own shotguns at home, that would

probably make it likely. And then a few years after UM that case. Another one has the Indiana from Ene to find imminent a little further and it said an advocacy of a legal action at some indefinite future time that's protected. So likely and eminent. Yes, interesting? All right, well let's take a likely and eminent break and we'll talk more, even more about obscenity after this. Ak alright, So did you see the movie Cardinal Knowledge? I didn't.

I thought, Um, for some reason, my I was like, Body Heats not that old that I thought the movie was. Wasn't that a sexy one? Body Heat was quite sexy? I never saw that? One very good movie? Was it? Kathleen Turner? Kathleen Turner that was putting to Palmer? Right? I think so? Yeah? I think she's also the star of one of my favorite all time movies, which is the War of the roses Man. That is a great movie. I can watch that movie a thousand times and not

get sick of it. Um, alright, So Cardinal Knowledge was the Mike Nichols film with Jack Nicholson, Candice Bergen, and Art Garfunkel. Of all people, what is our gar funcle doing in there? He sings in a falsetto throughout it's very nice. Lines are in sing song. Um no he he was? He acted in it was good? Was he good? Yeah? Yeah, it was a great movie. He like Paul Simon good, Well he's acted too here and there. Really good movie though.

I mean, like I said, it was Mike Nichols. It was not like porn, but it was just a very frank movie about sex and relationships. Um, Like Nicholson plays sort of a you know what you would think kind of a womanizer, and Art Garfunkels are more uh tinder and um not as big of a womanizer, trying to decide how to put all this and it kind of just follows him in three points of their life from like college to middle age and their sexual exploits. Anyway,

it sounds kind of boring. Just really good movie, is it? And very famously in nineteen seventy four. I think it might have started in seventy three, and right here in All Beneath Georgia, that was a theater manager that was arrested for showing that movie in a theater. Oh is that where this case comes from? Yeah, and he was

arrested and convicted of distributing obscene material. It's Jenkins v. Georgia. Right, Jenkins v. Georgia was a court case, and of course the Supreme Court ruled um that Colonel Knowledge was not obscene. And I think in the ruling they said, it's Mike Nichols, for God's sake, He's like, what are you thinking, precious treasure? Uh? And um, well they said that it basically your your opposition to a state of Georgia making us so proud is that there's nudity in it. And it's not a

lot of nudity. They were like, that's not enough. That doesn't it's not um patently offensive sexual, sexually explicit material that has no artistic value. Yes, it fails the Miller test is what it's called. Yeah, it passes. I guess it would fail the Miller test because if you pass the Miller test would be it would be obscene. Right, it's a weird way to look at it, I guess. Uh. Here in the modern age, like I said, with the Internet opened up a whole host of issues with free speech,

and notably the Child Online Protection Act COPA. Yeah, that was a big deal, very big deal. COPPA was legislation that was introduced to you know, protect kids from online smut. Right. But on the other hand, uh, freedom of speech. I advocates said, no, they're gonna this is the start of regulating the internet. The Internet is a free, open wild West and it should not be regulated, so don't try

to regulate it. And again everybody said except for child pornography, and the prison talking said, well, yeah, except of course child peryn i Aron, if you don't be stupid. Well, COPA never actually went into effect. It went through three rounds of litigation over the years, and um, you know, basically one of the big things that the court would say back was our protections that parents can put in right to restrict their kids from this stuff and that's enough. Yeah,

that's a huge thing. Like the court really tends to to not like government overreach and tends to restrict it whenever it comes about, right, Yeah, And this was really tricky because what they were trying to do is apply a federal law to community standards for a global product. And that's just I mean, talk about complicated law. That's tricky. It's very very tricky. Yeah. So, um, the court struck it down in part because they thought it was overly broad.

They they said that the what the government was considering offensive material would not would not pass the Miller test, so that was overly broad. And then they also said, yeah, there's alternatives like parental controls that are widely available. Are can solve the problem that the government's looking to solve, which is restrict kids from pornography. Um, but with out restricting anyone else's individual liberty. Right, So they said see

around COPA. Uh. And Justice Steven Bryer wrote in a concurring opinion, this is a good quote too, to read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a Heckler's veto affecting the rest of the nation, basically saying what many have said was this is an impossible task, so don't even try. I wish they'd take that that idea with obscenity as well. Well. And here's

the other thing when they struck down cope. And this is another really good quote, and this this one from U. S. District Judge Lowell read Jr. Not lou read, but Lowell read. Lee Reid said take a walk on the wild side. Lowell said, maybe after a nap Lowell said, uh, and this kind of sums up for me. I think he said, perhaps we do the miners of this country harm if first a protections which they uh will with age inherit fully are chipped away in the name of their protection. Right.

So basically like in trying to protect these kids, we have restricted their free speech when they become adults. Very interesting, Yeah, it's true, you know. Yeah, Um, the the the courts do you go with obscenity, I'm great with it with the courts have also kind of shaped um freedom of speech or protective freedom of speech by saying yes, certain types of speech are not protected obscenity, child pornography, fighting words,

fighting words, and then libel is another one. But one of the ways they further protected even when they're restricting it is to say, not everything that you say is liabel is actually liable. It's it's very I think it more has to do with slanders words that it is okay, So with libel laws, and I would guess slander falls

under the same laws, right. So, but with libel laws, Um, it's really difficult to prove libel, right because the person printing the libelous um information, which is basically, you're defaming someone's character. And that's a really old, longstanding prohibition. I think even back in ancient Greece they had a certain amount of freedom of speech in Athens, classical Athens. Um. But even even that was restricted as far as talking trash about someone's character. Right. So that's a that's a

really old idea that you shouldn't. You shouldn't put fake stuff about someone's character reputation out there. And if you do, then they have recourse. But to prove that that person said something libelous, they have to have had malice of forethought. They had to have um known that what they were printing was wrong or untrue. Yeah, that's the key. It has to be untrue. You can express an opinion about somebody and say someone's a big poopy pants, but you

can't say someone's big poopy pants. Who did X, Y and Z if that isn't true? Right, exactly, um, And so it's really tough to to prove or to prove libel right. So it is unprotected speech, but it's also protected in that it's not very broad, it's very narrow. And then part and parcel with that is um satire and parody are also very much protected in the United States, thankfully, and we have Larry Flint, Hustler publisher, to thank for that. Yeah, every I mean, people versus Larry Flint is a very

good job of that spelling out that case. But very famously, he went to war with the Reverend Jerry Fallwell because he had a cartoon and his Hustler magazine that was an unflattering, uh, sexual depiction of Jerry Fallwell. It was no, it was a fake pari ad. It was a spoof campari ad. But it was a cartoon though no, not the one I saw really, I saw like a I'm I'm sure he had that too. But this what the

court case was. It was like a campari ad and there was like a campari um ad campaign where people talked about their first time they had campari or whatever, and Jerry Fallwells was, uh, he and his mother got drunk on campari and had sex in the outhouse and that was actually how he lost his virginity. Jerry Falwell didn't like that, of course, so he sued um. He sued Larry Flint, and Larry Flint won that case. It

went all the way up to the Supreme Court. It was a case and they said, nope, this is parody. There's a satire. It's protected. If any reasonable person um sees it and would know that it's not true, it's protected. And and Larry Flint said, draw or no reasonable person would right pervert frack, Oh, yours is better than I That was good? Oh yeah, what was that going? Yeah? I like, what are you Harrelson doing, Larry Flint, which is right on the money. In my head, I sound

like a muppety tenor doing. What are you Harrelson doing? Great movie the Muppets people versus Larry fin Um. Yeah. In any way, thankfully satire and is protected here in the US because we have a long, rich history of political cartoons and rich satire that can really make a difference. Like you see what's going on with Saturday out Live right now. It's like they've had a long, long tradition of political satire and and most times that opening bit they do is political in nature. Uh, And then you

know it's nothing new. They've been doing it forever. So I don't know. I just think it's when you start like poking at that and the onion and you know, some of the great satirical publications. That's that goes down a bad road. Agreed, so, Chuck. One of the things that's coming up now that we're connected globally is this idea that what we talked about the beginning, the US has very broad free speech protections, some other countries don't.

There's like the the U n Universal Declaration of Human Rights, right, some of that has has some free speech protection in it. Not everybody signed on to it, and a lot of people think there will never be any way to to

protect freedom of speech worldwide. Normally, up to say the nineties, that wasn't that big of an issue unless like Salman Rushdie published a book or something like that, um, because each country had its own standards, and what was said in one country typically stayed in that country, even if it was offensive to another country. Right, Sure, the the two didn't clide. Now that the internet's here, what's said in one country can be carried immediately to another country

and the offense can be taken. And this went out of hypotheticals and into real world, well into the real world. UM. Back in two thousand twelve, when a guy named Nakula Beasel. Nakula released a fourteen minute video called the Innocence of Muslims. Do you remember that? I don't. It was extremely incendiary. If you um were a Muslim, you were going to be offended by this because it basically said that Prophet Mohammed was a fraud. Uh. It had him as a flander,

a womanizer, I think, a pedophile, it was like. And the people who were in it were scared to death because of the reaction. There were riots around the world once it was translated into Arabic and released. What they think was going to happen, I don't, I don't know. I don't. I don't remember if the person was a provocateur on purpose or if these were their real beliefs

son Islam. Regardless, they were Um Egyptian American, so the video was protected, even though elsewhere in the world they were literally rioting the streets and people were dying because this video existed. They were so upset by it. But in the US t s and as far as I know, it's still up on YouTube right because it's protected by free speech. Well, that's a that's a great example of should the US have the freedom of speech that is going to cause harm in another country? Now that those

two countries are connected via the Internet. There's no easy answer to that. That was basically a rhetorical question at this point, but it's one that I think is going to have to be decided more and more. And what goes to the heart of his blasphemy in this case. Yeah, blasphemy typically means insulting God or any religious or holy person or thing. Uh. It means different things in different religions. Um, it's actually still illegal in some states in the U.

S Um. Oh is that I thought the last one was struck down in two thousand seven. Okay, well but two thousands up until two thousand seven. Um, yeah, yeah, had laws until two thousand seven. That's right again two thousand seven. Yeah. Uh. But the last conviction for blasphemy in the US was in night so because these were laws that were sort of on the books that no

one did much about. Well, there's a dude. It was in Little Rock, Arkansas, and he was an anti religious atheist, this white supremacist who um had an office and in the office there was a sign out front I guess it was a storefin office, and it said, Um, evolution is true. The Bible is a lie. God is a ghost and he got arrested and convicted for blasphem me. So again, this is and there were blasphemy laws on the books until two thousand seven, and yeah, it is.

It's it's really surprising to think that the United States ever had blasphemy laws, but they were fairly recent. Yeah, and you know when it comes to religion, like the United States protects Westboro Baptist Church and they say you can go out and you can have uh offensive messages on signs at military funerals if you want UM, because this is the United States and we allow that. Yeah. And so I think that kind of brings up that one op ed you're talking about from the Atlantic, that um,

free speech isn't free. What's the title of it? Yeah, what's the what's the guy who wrote its name? Garrett Epps wrote it, and he makes really great He didn't even make a case. He just kind of presented both sides well. And what he did was he was the quote. And I think you're right on the money with that um, with that summation, because he said, Um, repressing speech has costs, but so it does allowing it. And the only mature way to judge the system is to look at both

sides of the ledger right. That really kind of says it all. Yeah, and he's he's basically saying like it's not enough to be to say freedom of speech exists because we have free speech in the U. S. America is a free country. You have to examine why and you have to defend it or else it's just a privilege.

And privileges are always subject to attack. But actual freedom is should be defensible, and so he says we need to defend it, especially based on another op ed that he was actually talking about by a law professor from fordom Thane Rosenbaum said, Um, no, there are actual harms to speech. It does cause physical or it does cause emotional harm that can in some cases exceed physical harm. It can be longer lasting, it can have a greater impact on more people at once. Um, and so why

do we allow hate speech in the United States? And Garret Ups doesn't have the answer, He just examines the whole question. I think, really well, yeah, I thought it was interesting. I mean, you know, he makes a point that the same laws that allow for strides of civil rights and feminism and gay rights groups over the years are the same law as that protect the people that have done them such harm over the years. Um And you know, like you said, you gotta look at both

sides of the ledger. It might cause harm and there is a cost to it, but ultimately the freedom well in my opinion, least outweighs those harms. So there's this guy named Jonathan Rausch who um garret ups quotes, but he wrote another OpEd that I read, and his idea of why freedom of speech, including hate speech, is important is because he says that if you suppress speech, you're suppressing thoughts. Right, So if you suppress hate speech, it's

still gonna be there. It's still gonna be boiling under the surface. People are still gonna quietly, subtly trade in it, but you can't refute it. If you allow hate speech, it can be refuted loudly, publicly. And then from that and he makes the case that this is why the gay community has made such strides in the last few years, because of the vicious homophobia that was publicly hurled at them, that they stood up and said, you know what, this isn't true. You know what, we deserve this right. You

know what, we're not pedophiles. You know what, we should be able to adopt everything and shot down all this stuff systematically. And America was watching this back and forth and um, gay people one public sentiment just through logic. He was saying, if you didn't allow that hate speech in the first place, there wouldn't have been that position to address, um, that hate speech. Improve it wrong because

you can't suppress hateful ideology. It's gonna exist, so all the speech so it can be publicly refuted and just smacked down. Yeah, yeah, I thought. I think that's probably the best explanation for freedom of speech I've ever heard. A good way to close to huh Man. Thanks a lot of Jonathan rosh Ah. You got anything else? No, I don't, but a little tease before listener mail, we're gonna have a couple of very intriguing follow ups to recent questions. Okay, all right, Well, if you want to

know more about free speech, uh to start talking. And since I said that, it's time for whatever Chuck's got up his sleeve. Yeah. Before I read the listener mail, Um, two things were on a recent show. We asked about our old buddy Sarah the Amazing fan, and then our old Buddy Sam, the Summer of Sam. Weirdly enough, we come into the office and Sam's parents dropped off a letter to us. Sam wants to be an intern here.

So he's around. He's in college doing great and wants to In turn, wrote us a letter, and we're gonna try and get him in here. And he wouldn't be our intern specifically, it'd be for how stuff works. But um, we're gonna burn a lot of currency to make sure he gets this job. Yeah, I hope it happens. It'd be great. It was good to hear from him, and it sounds like college is going great. His resume was stacked,

Buddy Sam. Uh. And the other thing is, I don't know if you saw this because I did the Facebook, but um, Katherine Mary Stewart of Night of the Comment played the older sister Reggie uh and was also in the Last Starfighter. And we ken to Bernie's and you know it was, you know, sort of the darling in the nineteen eighties and nineties. Uh. And it's still an actor today, does theater, working stuff and movies and TV and radio. She does it all. Uh. She got in

touch with us. She listened to the malls Podcasts posted on Facebook that we shouted her out and also her hometown Edmonton Mall and I was just knocked out and told her to email us. She emailed that thinks she lives in New York, and I said, hey, listen, next time we do a show at the Bell House, I want to act out week end to Berne. I'll play I'll play the debt guy and you and Josh can just pop it me around. Now. It was like, you know, come and bring your family. We'd love to guest list you.

Maybe you can hop up on stage and we can chit chat for a minute. I took the liberty of doing that. It was very nice. You're like, no, she can't get on stage. We edit that part out. I just thought that was very cool. Yes, very cool. Thanks for writing in Katherine Mary Stewart. Yes, and boy, she's found the Countain of Youth. She looks exactly the same. Yes. Uh and Sam too, he looks exactly the same. It's like twenty looked like he did when he was seventeen.

Well thanks, dudes. Oh we haven't even done listener mail yet, know so listener mail, Um, well, I'm just gonna read it. It's called would you rather? I feel bad for Jerry. She's not gonna know where to put the listener mail chime and that's sorry. Hey, guys, just finishing listening to soil It and uh I thought I had a surefire argument starter for you, guys, Josh's rant about the pros and cons of cooking and sharing meals. I don't rant reinforce my position on the subject. I'd like to know

what you think about it. Here's how you play would you rather? And it's not the sexy one. You get to forego one thing that humans need to do in order to live, either eating, sleeping, or breathing. You can do the thing that you choose to forego, of course, you just don't need to in order to live, and you remain neutral in terms of pleasure or discomfort caused by the lack of the necessity. So you don't feel hungry, you don't feel sleepy, you don't feel asphixiated. It seems

like stop out to me. So he wants to know what would we rather do? Without um? Mine is easy. I would easily not breathe question who would want? Who would say like I don't want to eat? I get a lot out of breathing. I'd have trouble giving that one out. Well, Andrew said he wouldn't eat. That's the answer to that question. He said, I would always forego eating because of the money it takes to feed myself and uh, the waking hours I would save. Yeah, I mean,

people's that's the two things with food, time and money. Yeah, yeah, yeah, but you get so much pleasure of it. Breathing, Sure, it's free, but who cares, especially if you're not going to die from not breathing? And this situation is weird fantasy world of his. I say, anyone who chooses, and this is Andrew talking, I say anyone who chooses to forego sleep as a dummy, because not only are you not saving on food, you have to entertain yourself for

an additional five hours a day. You argument there, though, is you could get more done. Sure, sometimes I do wish that you don't sleep to sleep. Sometimes I also enjoy sleep too, he says. Plus, I could eat socially every now and then under these terms if I wanted to. But who would just take a nap if you don't feel refreshed afterward? Yeah? I would. I love to sleep. And then the non breathers are just like deep sea diving and exploring volcanoes and stuff. I guess, oh, what

do you think about that? Pert, Yeah, you just go swimming all the way at the bottom forever. Yeah. So it's clearly breathing is the answer. It's not even a subjective question at this point that we've proven it. Yeah, all right, keep up the good work. That's from Andrew. Thanks Andrew, you keep thinking a good work too. Nice. I just want to see you're a sucker for not eating though. Yeah. Uh. If you want to try to stump us but fail at it like Andrew did, you can tweet to us at s Y s K podcast.

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