This is partly why I now prefer the term "free exchange of ideas" over "freedom of speech". I believe it more closely captures the essence of what makes free speech worth protecting, while also conveniently excluding stuff like this (among other things, like spam or antisocial behavior).
It also makes it clearer what's going on when people are waving the "free speech" banner over things like harassment and abuse. Allowing abuse not only doesn't increase the free exchange of ideas. It also often directly decreases it because it drives off people who get targeted by racism, sexism, et cetera, ad nauseam.
When the use cases for a given signal have proven to be reliably overwhelmed by the abuse cases for that same signal, the signal is no longer making a net positive contribution to freedom, causing net harm rather than help. At this point I don't think such a signal should be protected as free speech.
Except it won't work. Freedom of speech limited to well composed political speech is not what it sounds. Modern day China(PRC) guarantees in the constitution that kind of freedom of speech, just they label any speeches that isn't conformant to current Party statements to be terrorism conspiracy. Even Nazi Germany had that constitutional clauses.
It just starts from porn and ends in gas chambers. And in the middle is freedom limited to "meaningful" contents and activities. If you looked up and compared state of freedom of speech, CSAM/CP regulation, internet censorship, especially authority intervention, crime rate, and standpoint on democracy-totalitarian axis for various random nations, it should all line up well against each others.
So you haven't seen how a real communist party label opposing voices as not-a-speech? They literally do that. You'd think the problem is in their arbitrary mislabeling, not the selective application of freedom, sure, it isn't a problem at all so long you're the chooser.
Thank you; I was wanting another term so as to not conflated "freedom of speech" with something considerably different. I want to make things unambiguous/clear as possible.
It does infuriate me when some people may use "freedom of speech" as their excuse for "You must let me have a place to speak", when that isn't even guaranteed in the first place.
Freedom of the press does often get lumped in with speech in these sort of discussions, for good reason. That's another reason I prefer "ideas"; it's agnostic to the medium through which the ideas are conveyed (though again, in this specific case the images in question weren't intended to convey an "idea").
That doesn't really change much. Even if you relegate it to "free discussion of ideas" someone still can bombard it with bullshit ones "backed" by some circular reasoning, with backers either unable to comprehend or wilfully ignoring any logical counter-arguments. Get enough of those people and you get toxic wasteland
Freedom of speech is a legal concept that clearly doesn't cover CSAM. Free speech is a principle but it also doesn't cover CSAM. Fire in a crowded theater doesn't actually work as a legal defense but obscenity does
That's another reason I prefer the term "free exchange of ideas"; by using different wording it helps avoid the confusion created by people conflating the general principal of such freedoms with any specific legal provisions that exist in the U.S. constitution. (Though I agree in this case my wording is in agreement with how the courts define "freedom of speech" in practice.)
As discussed ITA, that case was later overturned; and it’s worth remembering that its origin was as an analogy to justify criminalizing pamphleteering against the draft [0] (one could not imagine a more salient example of “political speech”)
Copyright/trademark violations, shouting "fire" in a crowded theater, direct personal threats of bodily harm, basically a lot of stuff which is already widely considered to not be protected speech legally, but which is "speech" (or perhaps "press") in the plain language sense of the term (and importantly, is not exactly an "idea" in the plain language sense of that term).
I think it helps strengthen the argument rhetorically, since people can't as easily use the existence of such "exceptions" as an argument for adding more, or bypass the principle entirely with slogans like "freedom of speech isn't freedom of reach". (Suppressing the "reach" of certain ideas obviously does inhibit their free exchange.)
This approach hasn't been "battle tested" yet though so we'll see how it goes in practice.
It doesn't seem to do anything other than play word games with what counts as an 'idea' instead of what counts as 'speech'. An attempt to reset the existing case law, philosophy, etc., without facing it head on. Perhaps we need to reconsider if images count as speech. What about algorithms? Is an algorithm an idea? Even if it is an algorithm that generates an image?
The issue I see developing is that any attempt to carve out what is not desired by some group is going to create standards that will let other groups carve out what wasn't intended in the first place. Look at how encryption is under attack and one common way it is attacked is by claims of how it promotes the spread of CSAM. So government asks for reasonable backdoors that will only ever be used to stop such material, yet tech circles realize that any such backdoor will allow for arbitrary power to block any material.
I think flag burning and provocative art are unquestionably intended to convey "ideas". In fact, they fit into that category far more cleanly than they do into "speech" in my opinion.
Nudity... depends on the purpose but probably not. I agree that's unfortunate if your stance is that there should be no restrictions on porn, but I'm not sure the arguments for why freedom of speech is a good idea really apply to porn in the first place. I think it'd be better to make that argument on its own merits rather than try to conflate the two.
> I think flag burning and provocative art are unquestionably intended to convey "ideas".
That seems very open to interpretation to me; it seems to me these kind of things express a "feeling" much more than an "idea", and they might also be considered "antisocial" that you mentioned in your previous comment.
I meant "nudity" only in the sense of "nudity", nothing more. e.g. "I want to make a nudist TV cooking programme", or stuff like that. No concrete "ideas" are being exchanged with that as such.
I'm not a free speech absolution by any means, but I have generally favoured the exact opposite: "free expression" instead of "free speech" as that covers so much more. I think we can have an expansive "free expression" which includes many things while also having reasonable limits on that based on e.g. "does this reasonably harm people in a significant way?"
Yeah, I suppose there is some ambiguity there. Though I'd argue a standard like "does this harm people?" would even more open to interpretation and prone to abuse. Just about any idea can be framed as "harmful" to some person or group given a sufficient level of motivated reasoning (in fact, almost all modern cases of mass censorship seem to try to justify themselves that way). I much prefer a clear principle with few or no exceptions.
I suppose there may be room for both. "The freedom to exchange ideas" is after all a subset of "freedom of expression" (though not necessarily of "freedom of expression, with a bunch of exceptions").
In your "ideas" phrasing the exceptions seem implicit rather than explicit by virtue of not covering everything. I think it's better to be explicit about "you can do whatever you want, except [..]".
That some people will try to abuse this seems inescapable no matter what; we'll still be argueing the details 200 or 2,000 years from now because there is no way to capture any of this in clear neat rules. The best we can do is come up with some decent set of ground rules which convey the intent and purpose as best as possible. This is why we have judges to, well, judge, and "reasonably harm people in a significant way" seems like a lot clearer of a guideline for this than a much more vague "ideas".
Flag burning wasn't protected as free speech in the US until 1989. I have a list of stuff that was banned or censored in the past that would be considered unobjectionable by almost everyone today, and I suspect things would have been better if we had "freedom of expression" instead of "freedom of speech" (or "free exchange of ideas", for that matter).
Fair point. I agree with the sentiment of "you can do whatever you want, except [..]", in the sense that I think we should err on the side of personal freedom. To be clear, I don't think focusing on "the free exchange of ideas" means other freedoms aren't important, and I'm not proposing a constitutional amendment or anything. It's just that from a rhetorical perspective I prefer to use terminology that encourages the strongest possible interpretation of the argument I'm making, and I think, for me at least, "the free exchange of ideas" does that best for all the reasons I named in my original comment and its replies.
> This is partly why I now prefer the term "free exchange of ideas" over "freedom of speech".
What do you need in order to have a free exchange of ideas? Oh that's right, free speech. Free exchange of ideas is one of the benefits of free speech. But it isn't free speech. Also what about speech to entertain? What about speech to criticize? What about speech to just mindlessly express yourself?
> like spam or antisocial behavior
What counts as antisocial behavior? Rap music? Heavy metal? Is protesting government antisocial behavior? What about criticizing politicians? And more importantly, who decides?
It's amazing how little people know about free speech. It should be mandatory to have a class on civics and of course free speech. People have such a childish and superficial understanding of free speech. And of course these people always tend to be for censorship.
To be clear, I'm not saying freedom of speech is a bad thing. On the contrary, I agree protecting speech is a great way to ensure the free exchange of ideas. (As you noted, if you can't speak your ideas then you can't freely exchange them.)
But there's a lot of "speech" that should be and is already prohibited, both legally (CP being an obvious example), or through social standards of conduct (screaming expletives at random passers by is liable to get you kicked out of just about any venue).
In my view, focusing on the goal of freedom of speech (which is to say, the free exchange of ideas) rather than on speech itself communicates much more clearly on why the principle is important and where the line is. It makes it obvious why CP is not legally protected but Nazism is. Both are despicable, but one needs to be protected in order to preserve the free exchange of ideas while the other doesn't.
And again, I'm not saying other forms of expression that don't convey ideas shouldn't be allowed; just that the reasons why they should or shouldn't be allowed are separate from the reasons why the free exchange of ideas is important.
Yes, this wording does narrow my argument somewhat. But I think it largely narrows it in ways that make it easier to defend rhetorically, especially when trying to apply the principle to non-government entities such as the large social media conglomerates that own our modern town square.
