Shut Up

[canpakes]

If the effective solution to false speech is not more speech, perhaps it is more accountability.

It would seem that many folks pushing the ‘free speech fairy tale’, as you’ve put it, are doing so to avoid accountability, as that avoidance suits their aims.

[Res Ipsa]

If the effective solution to false speech is not more speech, perhaps it is more accountability.

It would seem that many folks pushing the ‘free speech fairy tale’, as you’ve put it, are doing so to avoid accountability, as that avoidance suits their aims.

I'm not that cynical. I think that view of speech is an important part of the enlightenment values that gave birth to the U.S. But it presumes, like so many other portions of our philosophy and system of government a good-faith commitment to the importance of "truth" as a value. Postmodernism kind of gave that notion a kick in the gut. And, while the left is often criticized in connection with post-modernism, the right employs it just as much as the left.

So, it is excruciatingly painful for me to describe what, for me, has been the rationale for one of my core values as a "fairy tale." I doubt I'm alone, and I wouldn't go so far as to describe folks who disagree with me as deploying that "fairy tale" in a cynical manner. For me, it's a less dramatic version of finding out that the LDS Church wasn't what it claimed to be. I didn't want to believe that, but I was relentlessly pushed in that direction. At some point, the emperor is simply naked.

[Dr Exiled]

This is definitely a disturbing development. The answer to unwanted speech is not to limit it or cancel it based on what some appointed speech monitor says. If one views speech as "bad" the answer is more speech to counter and expose the supposed "bad" speech, not less speech. Who will monitor the monitors to make sure their political aims are put in check if no opposing speech is allowed? This is why the 1st amendment was always about politics and power and should always be free and open.

This is what I have believed all of my life, and is the foundation of my near absolute view of free speech. But reflecting on my experience with discourse over climate change and watching political discourse over the last four, I am forced to admit that I've been clinging to a fairy tale that may have been true in the late 1700s, but is no longer true today. The appeal in this fairy tale is that "true" speech has the ability to "expose" false speech and that this alone will allow true speech to prevail. But, at least today, that's exactly backwards.

As they say, a lie goes around the world twice while the truth is lacing up its shoes. Or, in the formulation I've come to prefer: "The amount of energy needed to refute [vulgarity] is an order of magnitude greater than to produce it." This has become known as Brandolini's Law or the "[vulgarity] asymmetry principle." It is what makes the "Gish Gallop" so effective in debates. It has been illustrated on this board hundreds of times when someone drops a cut-and-pasted [vulgarity] factoid on the board and someone takes the time and makes the effort to demonstrate that it is [vulgarity].

If that weren't bad enough, it's become clear that our brains aren't persuaded by true speech to let go of false speech. Our brains cling to false speech that fits with our existing world view and are near impenetrable to true speech that contradicts that view. It's a byproduct of brains that create stories to minimize our discomfort, with truth being a secondary or tertiary concern.

The result is similar to Gresham's Law, which says that bad money drives good money out of circulation. False speech drives true speech out of circulation. True speech cannot physically keep up with false speech and cannot dislodge false ideas at a meaningful rate.

So, where does that leave us? First, I think we ought to stop kidding ourselves that good/true speech is any kind of remedy or solution to bad/false speech. Stop trying to avoid some hard issues that face us by reciting fairy tales. The value of free speech needs to be justified by something other than a false rationalization.

My first reaction is to say, whatever the consequences of the deliberate dissemination of outright lies by our current political leaders, we have no reason to expect the results to be better by giving the government authority to determine the truth or falsity of speech. How much better off would we be if Trump had legal enforcement tools to stop his opponents from even speaking? (Trump supporters can insert Nanci Pelosi for the equivalent effect).

My second is to return to a line of thought prompted by Sub's last free speech post: how does the current effort to sabotage our election process through the deliberate telling of lies stack up with the already recognized exceptions to free speech? The ones that come closest are perjury and lying to the FBI. What is the rationale for criminalizing pure speech in those two contexts? The rationale is the destructive effect of lying in those contexts on our government's ability to function. I don't think it's much of a leap to say that telling deliberate lies about the election process has the same corrosive effects on something that is foundational to our system of government. So, why not craft a law that prohibits government officials from deliberately making false or misleading statements about the process or results of an election? This is not a matter of political speech because, once the votes are cast, we have legal processes for counting the votes. But those are legal questions -- not political ones.

Would such a loss pass constitutional muster? I think so. In the case Subs recently cited, the three most conservative Justices filed a dissent in which they said that false speech has zero constitutional protection. From a constitutional standpoint, it is very difficult justify deliberately false speech that causes harm. The Justices that struck down the law, which made it illegal to falsely claim that one had been awarded the Congressional Medal of Honor, was that it was over broad -- it applied on its face to situations where there was no harm. Given that the Court recognizes the harm caused by false speech in court or criminal investigations, the harm to our system of free and fair elections is, I think, very likely to pass constitutional muster.

If we're not willing to do that, release the Kraken. Any and all speech goes, including doxxing, picketing of homes, calling out on the street or restaurants, advertiser boycotts. These tactics are no more uncivil that the deliberate telling of lies to destroy public confidence in our fundamental institutions. If the effective solution to false speech is not more speech, perhaps it is more accountability.

So, your response is prior restraint? Who decides what is true and false prior to the person saying it? You? Some billionaire? Should we start a filter on this site? How about subgenius as the moderator of who gets to speak or not? Ajax? I think the better way to do this is to let people speak and educate the population on how to discern truth from error. You seem to know, right? But, how are we so sure about you? Maybe precrime should shut you up now before you lead the board down to tyranny? Obviously, that is the wrong decision.

Also, with the election, you have said that you are willing to let Trump prosecute his claims, yet it has already been decided in your mind that he doesn't have a leg to stand on and that merely claiming that there was fraud in the electoral process is somehow corrosive to the process. At this point, the correct response is to demand that he put up or shut up and shine a huge light on what he is doing without prejudging. That way, if and when he fails, assuming this is the outcome, people the right may not admit it because that is the nature of politics and religion on both sides, but they probably will be a little less loud in their nonsense. I don't know about you but I don't see a problem with people on the left thinking everything is shrouded in racism when it clearly isn't. Let them think so and I will show them some of my african american clients who try to judge people by the content of their character.

As for intentionally disseminating falsehoods, there are laws against that. If I falsely say I have lurid details about so and so and publish, I had better watch out for a defamation lawsuit. I have a client that did that in the name of protecting her teenage daughter from a handsy coach that got a little too close to his high school female student athletes. Also, more speech means that articulate people like you have a great chance to enlighten the public and correct their errors. If your case isn't good enough, perhaps the problem lies with your case and not the audience?

[Res Ipsa]

Dr. Exiled, with all due respect, please react to what I actually write. Nowhere did I mention, let alone advocate prior restraint. So you can take the frothing at the mouth down a few notches.

I also suggested nothing about the lawsuits. The courts have their built in remedy for people who lie to judges and juries. If I can be deprived of my liberty for lying to a judge, why can’t a government official be punished for intentionally lying about election fraud? Not prior restraint. Being criminally prosecuted.

Trump gets his day in court, but as an American Citizen, I have every right to call out an abuse of the judicial system to overturn the results of an election. Trump’s lies about fraud are not borne out by the pleadings, the pleadings are not borne out by the testimony. Suits and claims within them are retracted almost as fast as they are made.

And the core strategy has become clear: delay certification and pressure legislators to overturn the actual vote based, not on evidence proven in court, but on unproven claims of widespread fraud. Trump has contacted county election officials, is actively lobbying state legislators, and whatever the next shoe will be to drop in an effort to steal an election. Your claim that I somehow am obligated not to point that out is absurd. After 29 lost lawsuits, exactly how many more should I have to stay silent for? I mean who exactly is telling who to shut up here?

[Dr Exiled]

Dr. Exiled, with all due respect, please react to what I actually write. Nowhere did I mention, let alone advocate prior restraint. So you can take the frothing at the mouth down a few notches.

I also suggested nothing about the lawsuits. The courts have their built in remedy for people who lie to judges and juries. If I can be deprived of my liberty for lying to a judge, why can’t a government official be punished for intentionally lying about election fraud? Not prior restraint. Being criminally prosecuted.

Trump gets his day in court, but as an American Citizen, I have every right to call out an abuse of the judicial system to overturn the results of an election. Trump’s lies about fraud are not borne out by the pleadings, the pleadings are not borne out by the testimony. Suits and claims within them are retracted almost as fast as they are made.

And the core strategy has become clear: delay certification and pressure legislators to overturn the actual vote based, not on evidence proven in court, but on unproven claims of widespread fraud. Trump has contacted county election officials, is actively lobbying state legislators, and whatever the next shoe will be to drop in an effort to steal an election. Your claim that I somehow am obligated not to point that out is absurd. After 29 lost lawsuits, exactly how many more should I have to stay silent for? I mean who exactly is telling who to shut up here?

Defamation laws already protect victims from lies spread by the unscrupulous and that applies to elections. See this article by Prof. Turley on the latest Trump news conference: https://jonathanturley.org/2020/11/19/i ... rump-team/

I'd like to see how the law you propose would function. It seems that a law against election integrity would be too vague to pass constitutional muster. Who would be the victim? It also could prohibit legal challenges to an election where proof is not immediately found (I assume your law would demand immediate proof prior to making any claims) Would your law prohibit the mere filing of a complaint that claims election fraud? Would the press be prohibited from reporting on the complaint? Wouldn't the demand for immediate proof dissuade inordinately those lawfully wronged by a fraudulent election? Would there be special rules for discovery? I think enforcing such a law would implicate prior restraint as it would be very difficult to enforce without unreasonably prohibiting speech.

[subgenius]

I believe the poster was illuminating the danger or absurdity of the entire monitor idea...ergo, no resource needed as there should not be a first monitor anyhow.

The good Doctor will likely speak for himself.

sez the poster that carries water so often for others that your avatar should be Aquarius.

Honestly, at no point.

Therefore, you interpret that there is no need to prosecute slander, or perjury, or terrorist threats, as example?

Nope. You are literally echoing the points i noted, of which you conveniently edited from this post.
You might want to drop perjury from your bucket given the whole oath that precedes it...but i get ya...you want to define speech like you want to define arms.

What do you see as the reason for the existence of the First Amendment? What is the definition of ‘free speech’? Is there any concept of ‘public good’ supported within the Constitution that counters your idea that virtually all speech is ‘free speech’?

Cool that you are trying to argue that the founding fathers surely intended the rights of the people sitting be subversive to the government whenever the government sees fit. Is that the 2nd amendment?

[subgenius]

These are certainly some of the most intelligent responses I have ever read on this topic. Thank you.
So the more dramatic question in follow-up is should the US government be monitoring and censoring private media? whether social or journalistic I can't imagine a justification for using government authority in that capacity. Even pornography has certain limits from government intrusion - and that is more in line with distribution and not the actual content.
Are any of uscomfortable with the idea that someone like Pence/Pelosi would be organizing the principles of free speech?

[Res Ipsa]

Dr. Exiled, with all due respect, please react to what I actually write. Nowhere did I mention, let alone advocate prior restraint. So you can take the frothing at the mouth down a few notches.

I also suggested nothing about the lawsuits. The courts have their built in remedy for people who lie to judges and juries. If I can be deprived of my liberty for lying to a judge, why can’t a government official be punished for intentionally lying about election fraud? Not prior restraint. Being criminally prosecuted.

Trump gets his day in court, but as an American Citizen, I have every right to call out an abuse of the judicial system to overturn the results of an election. Trump’s lies about fraud are not borne out by the pleadings, the pleadings are not borne out by the testimony. Suits and claims within them are retracted almost as fast as they are made.

And the core strategy has become clear: delay certification and pressure legislators to overturn the actual vote based, not on evidence proven in court, but on unproven claims of widespread fraud. Trump has contacted county election officials, is actively lobbying state legislators, and whatever the next shoe will be to drop in an effort to steal an election. Your claim that I somehow am obligated not to point that out is absurd. After 29 lost lawsuits, exactly how many more should I have to stay silent for? I mean who exactly is telling who to shut up here?

Defamation laws already protect victims from lies spread by the unscrupulous and that applies to elections. See this article by Prof. Turley on the latest Trump news conference: https://jonathanturley.org/2020/11/19/i ... rump-team/

I'd like to see how the law you propose would function. It seems that a law against election integrity would be too vague to pass constitutional muster. Who would be the victim? It also could prohibit legal challenges to an election where proof is not immediately found (I assume your law would demand immediate proof prior to making any claims) Would your law prohibit the mere filing of a complaint that claims election fraud? Would the press be prohibited from reporting on the complaint? Wouldn't the demand for immediate proof dissuade inordinately those lawfully wronged by a fraudulent election? Would there be special rules for discovery? I think enforcing such a law would implicate prior restraint as it would be very difficult to enforce without unreasonably prohibiting speech.

Turley makes an assumption in this piece that I find incredibly naïve and dangerous: that unless the subject of a false statement files a libel suit, the allegations have got some merit. And because a lawyer makes public accusations, we should assume they have some evidence. The willingness of public officials and figures to flat out lie has been amply demonstrated for at least the last four years. And, as you and I both well know, defamation litigation is time consuming and expensive, with any final results coming years after the lie.

I obviously haven’t drafted legislation — just suggested an approach. But the laws addressing securities fraud might be a model. I don’t see a necessary problem with vagueness. Not ever criminal statute requires an individual victim. Who is the victim in a treason case? In an insurrection case? In an incitement to riot case?

You’ve made a number of unnecessary assumptions. Judge have the ability through their power to assess sanctions and inherent contempt powers to punish lying to the court. It seems to have been an effective deterrent so far in the courtroom.

And you still haven’t read what I actually proposed. I did not propose to apply it to the press. I didn’t demand accelerated proof. I’m merely proposing consequences for public officials that deliberately lie about election fraud. Why is it that if I lie to a judge about whether Republican officials were present at a vote counting site, it’s a crime and I can be thrown in jail. Or if I tell the same lie to an FBI investigator, it’s a crime and I can be thrown in jail. But If the President or a Senator or a Congressman tells the same lie, nothing happens? Why does the Constitution give me no protection in the first two examples, but is bullet proof protection for people welding the power of their government offices?

And, again, no prior restraint. Only the voluntary restraint that comes with knowing that lying has consequences.

[Dr Exiled]

These are certainly some of the most intelligent responses I have ever read on this topic. Thank you.
So the more dramatic question in follow-up is should the US government be monitoring and censoring private media? whether social or journalistic I can't imagine a justification for using government authority in that capacity. Even pornography has certain limits from government intrusion - and that is more in line with distribution and not the actual content.
Are any of uscomfortable with the idea that someone like Pence/Pelosi would be organizing the principles of free speech?

No, let's go back to pre-patriot act times. Let's not allow emotion to rule our determinations of what is or is not allowable speech. Let the people say whatever sense, nonsense or whatever, with the limits put down by Supreme Court over the years. I left Mormonism in part because there was a nanny church wanting to control what I read and saw .... because we all know why.

[Dr Exiled]

Defamation laws already protect victims from lies spread by the unscrupulous and that applies to elections. See this article by Prof. Turley on the latest Trump news conference: https://jonathanturley.org/2020/11/19/i ... rump-team/

I'd like to see how the law you propose would function. It seems that a law against election integrity would be too vague to pass constitutional muster. Who would be the victim? It also could prohibit legal challenges to an election where proof is not immediately found (I assume your law would demand immediate proof prior to making any claims) Would your law prohibit the mere filing of a complaint that claims election fraud? Would the press be prohibited from reporting on the complaint? Wouldn't the demand for immediate proof dissuade inordinately those lawfully wronged by a fraudulent election? Would there be special rules for discovery? I think enforcing such a law would implicate prior restraint as it would be very difficult to enforce without unreasonably prohibiting speech.

Turley makes an assumption in this piece that I find incredibly naïve and dangerous: that unless the subject of a false statement files a libel suit, the allegations have got some merit. And because a lawyer makes public accusations, we should assume they have some evidence. The willingness of public officials and figures to flat out lie has been amply demonstrated for at least the last four years. And, as you and I both well know, defamation litigation is time consuming and expensive, with any final results coming years after the lie.

I obviously haven’t drafted legislation — just suggested an approach. But the laws addressing securities fraud might be a model. I don’t see a necessary problem with vagueness. Not ever criminal statute requires an individual victim. Who is the victim in a treason case? In an insurrection case? In an incitement to riot case?

You’ve made a number of unnecessary assumptions. Judge have the ability through their power to assess sanctions and inherent contempt powers to punish lying to the court. It seems to have been an effective deterrent so far in the courtroom.

And you still haven’t read what I actually proposed. I did not propose to apply it to the press. I didn’t demand accelerated proof. I’m merely proposing consequences for public officials that deliberately lie about election fraud. Why is it that if I lie to a judge about whether Republican officials were present at a vote counting site, it’s a crime and I can be thrown in jail. Or if I tell the same lie to an FBI investigator, it’s a crime and I can be thrown in jail. But If the President or a Senator or a Congressman tells the same lie, nothing happens? Why does the Constitution give me no protection in the first two examples, but is bullet proof protection for people welding the power of their government offices?

And, again, no prior restraint. Only the voluntary restraint that comes with knowing that lying has consequences.

Regarding Turley, I cited his article to show that there are remedies already for people who are reckless with their allegations of fraudulent elections. As for his assumptions, I also don't agree that unless a libel or slander allegation is raised there should be more weight given to a lawyer's statement. They lie, too (except me of course and you as well).

As for sovereign immunity, perhaps that should be reviewed. I know I hated having to turn down a couple of police abuse cases over the years due to qualified/sovereign immunity concerns. Here is an article by Prof Chemerinsky against sovereign immunity: https://scholarship.law.duke.edu/cgi/vi ... cholarship for those interested.