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April 17, 2018, 07:29 PM | #1 |
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Second vs. First Amendment
Journalist say the First Amendment is inviolate, and (their speech in particular), no matter how slanderous / libelous bad (short of yelling "fire" in a theater) cannot be infringed.
"IF that is true", they why isn't the Second Amendment on equal footing? I would expect significantly more people have died due to lies told by the press and (particularly by world leaders) than by guns. Just curious.
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April 17, 2018, 07:40 PM | #2 |
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There are limits on free speech. It is not unlimited. One is not allowed to spread falsehoods with malicious intent. The limits make the system workable. See how that works? Funny that your analogy between the first and second amendments is actually quite useful...just not how you envisioned.
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April 17, 2018, 07:50 PM | #3 | |
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Hitler, Stalin & Mao to my knowledge, never pulled the trigger themselves. Their speeches, however caused the deaths of approximately 100,000,000. Remind me again, which is more dangerous, RTKBA or unrestricted speech?
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April 17, 2018, 07:51 PM | #4 | ||||||
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The First Amendment reads : The First Amendment thus protects freedom of speech, the press, assembly and religion against laws that abridge those rights. but nonetheless there has been a history of certain regulation of speech, assembly and religion. Nonetheless, there is a long history of couts sustaining laws (both federal laws and, after the First Amendment began to be held applicable to the States through the Due Process Clause of the Fourteenth Amendment, state laws) regulating (and thus abridging) rights protected by the First Amendment. A few examples are:
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April 17, 2018, 08:06 PM | #5 | |||
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Judith Miller spent time in jail for refusing to testify about her sources. That sort of thing is a rarity, but it does happen.
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If someone can prove that you intended the injury you caused them with false statements, they may successfully sue you, but we don't keep you from doing it in advance. Quote:
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April 17, 2018, 08:24 PM | #6 |
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I am unaware of any restrictions of word processors, printing presses, type size, etc.
There are limits on broadcast frequency and strength. Anyone with the money can buy a commercial press to match the NYT or WP. Anyone with the money can purchase web hosting to support millions of visitors. |
April 17, 2018, 09:40 PM | #7 | |
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HOWEVER -- If what comes out of our mouths is false and malicious (i.e. libelous or slanderous) we can be held accountable for that. After the fact, which is the way it should be. If you slander someone, there's no rush to pass onerous new laws that require everyone else to jump through hoops before they are allowed to say or write something. Yet with guns, the goal is to punish millions of innocent, law-abiding people because of the actions of a very few nutcases. I don't think the free speech analogy works very well. |
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April 17, 2018, 11:21 PM | #8 | |
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Second, there's no blanket rejection of prior restraint in connection with rights protected by the First Amendment. Prior restraint is certainly alive and well in various areas of commercial speech, and even Near accepts that possibility that prior restraint could be constitutionally appropriate under certain circumstances. Really the only point of my outline in post 4 is to demonstrate that notwithstanding the "no law...abridging" language of the First Amendment rights protected by the First Amendment are amenable to some regulation.
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April 18, 2018, 05:41 AM | #9 |
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I'm on my first cup of coffee today, so I'm not up for digging up citations yet. With that said, I'll make a couple of points:
1. You most assuredly can yell fire in a crowded theater. And there are penalties if doing so causes a stampede and people are injured. You most assuredly can write defamatory things about someone. And there are penalties for doing so. However, we don't take your word processor (or your mouth) away to keep you from doing those things. 2. Both the A1 and A2 rights have been held to be "fundamental, individual rights." In theory, this should put them on equivalent footing in terms of constitutional scrutiny -- strict scrutiny. In reality, that's not what we've seen from the lower courts. Not by a long shot. Unfortunately, SCOTUS has thus far declined to announce strict scrutiny as the appropriate level of scrutiny. This is one of the things that led to a fairly vocal dissent from Clarence Thomas in connection with SCOTUS recent decision not to hear a 2A case. He said that the 2A was being treated like a "second class right," and I agree with him.
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April 19, 2018, 01:07 AM | #10 | |
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April 19, 2018, 01:16 AM | #11 | |
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April 19, 2018, 02:23 AM | #12 |
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Are you saying opinions or criticisms of things don't ever seriously harm people, financially and/or health-wise??
You need to take a better look around, if you are...
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April 19, 2018, 02:28 AM | #13 | |
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April 19, 2018, 05:47 AM | #14 | ||
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I'd offer an alternative to the idea that restrictions on commercial and political speech aren't about speech - commercial and polirical restrictions are about speech, and those restrictions depart from the text of the COTUS. You might have a good argument for a food vendor being forced to say something about the fat content of its food, but maybe that argument should properly have you seeking amendment of the "shall make no law" part of the COTUS. Where people above explain speech restrictions, that isn't necessarily an argument that those restrictions are optimal or faithful to specific COTUS text. The difference between what is and what should be, or between historical development and text can be large. Moreover, that distance isn't something new. The Sedition Act was a speech restriction arising at the end of the 18th century; tough to square that with "shall make no law".
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April 20, 2018, 05:31 AM | #15 | |
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Most, if not all, measures seeking to preempt or limit speech and religious expression are subject to strict scrutiny; as we know that’s not the case with firearm regulatory measures. |
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April 20, 2018, 10:21 AM | #16 | |
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That makes a huge difference.
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April 20, 2018, 11:08 AM | #17 | |
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As the power of the federal government was expanding under FDR, commercial speech was afforded less protection than other speech. A regulation on commercial speech would not be subjected to strict scrutiny, whereas other speech regs would. So, if the government seeks to prohibit publication of the Anarchists Cookbook, it needs to show that the prohibition is narrowly tailored to further a compelling government interest. On the other hand, if the government seeks to stop you from saying that Calgon is an ancient chinese laundry secret, it only has to show that the government interest is important and the prohibition is a means substantially related to that interest. Subsequently, the Sup Ct reduced even that level of scrutiny when examining commercial speech. In summary, the Court decided that commercial speech is less protected by the Constitution than other speech. Clearly, nothing in the 1st Am. suggest that Congress "shall make no law" unless they have a reason to, but there it is. Similarly, nothing in the 1st Am. suggests that the right to keep and bear arms shall not be infringed unless it's a good idea to infringe the right. The process is much like the interstate commerce clause jurispridence. The point of Wickard is that the Sup Ct during the New Deal decided that where the Constitution gives the Congress the power to regulate interstate commerce, that actually means that it also has the power to regulate much that is not in interstate commerce. So, a person might rationally conclude that a cigarette vendor needs to include a health warning on the pack, that commercial speech that could deceive people should be prohibited, that a man who grows wheat for his own use should be prohibited by congress from doing it, but there is a lot of distance between the reality of those powers and the text of the constitution.
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April 21, 2018, 12:19 AM | #18 | |
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April 21, 2018, 07:36 AM | #19 |
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I have read enough to know that common sense has little to do with law and law is complicated but I am going to ask anyway.
Why isn't it automatic that any law restricting an amendment isn't scrubbed with strict scrutiny? As that isn't the case, has anyone brought that to the courts to change that? Since non of this is the case, would it make sense to pursue that to protect all our rights? The red flag laws are really bothering me. Anyone who knows you own a gun can have it taken from you. This is going to drive gun owners underground and further silence our voices. It is a VERY effective way to keep many from standing and being counted.
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L2R Last edited by L2R; April 21, 2018 at 07:46 AM. |
April 21, 2018, 08:47 AM | #20 |
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We've seen that some of the judges deciding gun control cases in favor of the gun control laws we think are unconstitutional claim to be using strict (or at least intermediate) scrutiny, although a reading of their decisions clearly shows that they are actually using interest balancing and calling it something else.
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April 23, 2018, 01:44 AM | #21 |
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Free Speech zones.
https://en.wikipedia.org/wiki/Free_speech_zone A woman was arrested for laughing at Jeff Sessions. http://thehill.com/blogs/blog-briefi...eading-back-to Peaceful demonstrators arrested, without charges. https://www.theguardian.com/commenti...ent-protesters Government promotion of religion. https://www.aclu.org/news/aclu-promi...xecutive-order Citizens attempting to petition congress being turned away. https://tonic.vice.com/en_us/article...te-health-bill The first amendment is under threat. It has been during the entire history of the country. The importance of the 1st amendment to the operation of a democracy can't be over stated. Obama was supposedly the greatest threat to the 2nd amendment in history. The main thing his administration did was remove rules prohibiting guns from national parks. |
April 23, 2018, 05:53 AM | #22 | ||
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To clarify, the rollback of the National Parks restriction was legislation, not BHO administration action. That BHO had a congress that stood against the restrictions he urged isn't a matter to BHO's credit on this issue.
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Significant rights of speech and effective defense have the potential to cause white hot momentary disgust. Whether its killing little children in Newtown, or displaying a picture of a crucifix in urine or wearing national socialist garb to march through Skokie, disgust is the normal reflex. Yet, if the sense of the community is disgust, that may not be a firm foundation for wise policy. Quote:
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