Define Free Speech for a Court

[Jimmy Higgins]

I am reminded of an anecdote. In college, a Cuban classmate asked what the big deal with "free speech was anyway". I noted that it wasn't as much about the speech, as it was about thought and the freedom of thought. Being able to think freely without Government oversight is one of our most cherished rights. Don't have to sell gay couples cakes in Iran. How free are they there?

Free speech is very difficult to define. I think we know what type of speech violates the law when it comes to lying under oath etc, but lately, there have been a lot of people making death threats, and that is illegal and should be obviously illegal. I'm just not sure that a lot of people realize that. In Georgia, if you make a direct threat against someone, you can be charged with making a "terroristic threat". I would have no problem in making blanket death threats or other types of violent threats against a particular group of people a crime. To me, this type of speech has the potential to incite violence or influence some goon who might take it seriously. Plus, we don't know if one is serious when they make a violent threat, which is why it's a crime.

Think of the QANON crap that makes outrageous claims about Democrats, sometimes influencing extremists to commit or attempt to commit violence. I don't see why such outrageous, potentially dangerous lies should be protected by the 1st Amendment.

There is defamation... but you have to be able to prove multiple things in order to convict for defamation. Which is why it isn't happening much in court.

Imo, the concept of free speech has been abused and we need to redefine what is meant by that term. At least as clearly as possible. Maybe the problem is there is so much violent hate speech these days that it's impossible to arrest most of the violators, especially since many try to be anonymous.

And this is where SCOTUS comes in... or at least where the SCOTUS of old would come in. They wouldn't want to define it. Defining "free speech" almost restricts free speech. This is kind of where we need to be adults about things.

The trouble is, people want to say forcing someone to sell someone a cake violates the first amendment. When that violation would be putting a person in jail for thinking gay marriage is wrong.

 

[T.G.G. Moogly]

In a civil and free society free speech certainly has something to do with individual safety. Unfortunately in our society lies are protected free speech but necessarily with limits, and those limits have precisely to do with the amount of damage and personal harm the lies cause. We ask juries to pass judgements based on "reasonable doubt." Free speech has everything to do with reasonable doubt. It also has to do with the old "Your right to swing your fist ends where my nose begins."

So if I had to give free speech a very simple legal definition that I think could be used by a jury to pass judgement on whether said speech is protected it would be "speech, reasonably intended and understood, which does not harm the fellow citizen."

 

[Loren Pechtel]

Then there is speech v expression. Expression can exist outside of words. Conservatives will use a very very very broad definition of expression that includes just about any act. Liberals feel it expression needs to be more direct and clear, and not nearly adjacent. The mere act of selling something is considered "expression" by some conservatives.

I take a broad view on what constitutes expression but the conservatives are interpreting it wrong. Most of the refuse-to-deal-with cases involve offering a product for sale and then going back on that offer because they don't approve of something about the customer. By offering the goods for sale they gave up a certain amount of their freedom of expression.

(Now, when it comes to anything creative I'll take their side. Once it goes beyond picking options from existing lists into any sort of design then I support anyone saying "I don't want to design this.")

 

[Jarhyn]

Then there is speech v expression. Expression can exist outside of words. Conservatives will use a very very very broad definition of expression that includes just about any act. Liberals feel it expression needs to be more direct and clear, and not nearly adjacent. The mere act of selling something is considered "expression" by some conservatives.

I take a broad view on what constitutes expression but the conservatives are interpreting it wrong. Most of the refuse-to-deal-with cases involve offering a product for sale and then going back on that offer because they don't approve of something about the customer. By offering the goods for sale they gave up a certain amount of their freedom of expression.

(Now, when it comes to anything creative I'll take their side. Once it goes beyond picking options from existing lists into any sort of design then I support anyone saying "I don't want to design this.")

But if they would design that for someone else....

Let's look at it from the perspective of a website, for example.

If the commissioner had presented a request for a color scheme and had left all the images as generic placeholders, such as an androgenous pair of profiles next to each other and so on, and asked for a website design "for promoting healthy relationships" with an arbitrary scheme, to be delivered with placeholder Lorum Ipsum, then the request is shaped in a general enough way that they are neither asked to provide something distinctly objectionable creatively.

For instance, I have some acquaintances ask for a custom wedding cake. The cake was in the shape of a monster. It gave no hint as to who it was for, other than that it was for someone who wanted an expensive cake shaped like an abomination.

The event this sexuality-agnostic grotesquery was delivered to was a same-sex wedding.

It is unarguably a piece of art, in all it's glorious eyestalk bedecked chocolate-filled glory. I would argue that there is no grounds against making a similar tentacled horror cake for a Nazi who just likes reading Lovecraft for their birthday, or a disgusting centipede curled up around a pile of eggs cake for a particularly kinky WASP's BDSM party, assuming that there is not some weird carve-out because of a particular phobia or whatever.

If they would be willing to design that cake or website or whatever thinking it's going to be used to promote "straight" cause, it should be available for order for any other cause.

 

[T.G.G. Moogly]

(Now, when it comes to anything creative I'll take their side. Once it goes beyond picking options from existing lists into any sort of design then I support anyone saying "I don't want to design this.")

So you are distinguishing between providing a service and artistic expression when in fact they are the same thing, at least in this case. I'm not legally allowed to write a book, have it published and then not sell it to gays. This case is identical. If I have a business wherein I write stories for customers but refuse to write stories for gay people, I'm no different than someone who refuses to service blacks in my diner or doesn't allow them to use the bathroom.

 

[Jarhyn]

If the commissioner had presented a request for a color scheme and had left all the images as generic placeholders, such as an androgenous pair of profiles next to each other and so on, and asked for a website design "for promoting healthy relationships" with an arbitrary scheme, to be delivered with placeholder Lorum Ipsum, then the request is shaped in a general enough way that they are neither asked to provide something distinctly objectionable creatively.

Lol, this sentence...

If the commissioner had presented a request for a color scheme and had left all the images as generic placeholders, such as an androgenous pair of profiles next to each other and so on, then no request for the artist themselves to depict "something gay" has been made.

The request can be and asked for a website design "for promoting healthy relationships" with an arbitrary layout, to be delivered with placeholder Lorum Ipsum. At that point, the request is shaped in a general enough way that they are neither asked to provide something distinctly objectionable creatively, nor does the specific gayness of what the commissioner does with the site matter.

 

[Jimmy Higgins]

Then there is speech v expression. Expression can exist outside of words. Conservatives will use a very very very broad definition of expression that includes just about any act. Liberals feel it expression needs to be more direct and clear, and not nearly adjacent. The mere act of selling something is considered "expression" by some conservatives.

I take a broad view on what constitutes expression but the conservatives are interpreting it wrong. Most of the refuse-to-deal-with cases involve offering a product for sale and then going back on that offer because they don't approve of something about the customer. By offering the goods for sale they gave up a certain amount of their freedom of expression.

(Now, when it comes to anything creative I'll take their side. Once it goes beyond picking options from existing lists into any sort of design then I support anyone saying "I don't want to design this.")

That is quite broad, the term "anything". I want a cylinder cake becomes expression verses rectangular prisms? I'd say that the expression comes when a disinterested person is able to derive an expression from the item.

 

[Loren Pechtel]

Then there is speech v expression. Expression can exist outside of words. Conservatives will use a very very very broad definition of expression that includes just about any act. Liberals feel it expression needs to be more direct and clear, and not nearly adjacent. The mere act of selling something is considered "expression" by some conservatives.

I take a broad view on what constitutes expression but the conservatives are interpreting it wrong. Most of the refuse-to-deal-with cases involve offering a product for sale and then going back on that offer because they don't approve of something about the customer. By offering the goods for sale they gave up a certain amount of their freedom of expression.

(Now, when it comes to anything creative I'll take their side. Once it goes beyond picking options from existing lists into any sort of design then I support anyone saying "I don't want to design this.")

But if they would design that for someone else....

Let's look at it from the perspective of a website, for example.

If the commissioner had presented a request for a color scheme and had left all the images as generic placeholders, such as an androgenous pair of profiles next to each other and so on, and asked for a website design "for promoting healthy relationships" with an arbitrary scheme, to be delivered with placeholder Lorum Ipsum, then the request is shaped in a general enough way that they are neither asked to provide something distinctly objectionable creatively.

For instance, I have some acquaintances ask for a custom wedding cake. The cake was in the shape of a monster. It gave no hint as to who it was for, other than that it was for someone who wanted an expensive cake shaped like an abomination.

The event this sexuality-agnostic grotesquery was delivered to was a same-sex wedding.

It is unarguably a piece of art, in all it's glorious eyestalk bedecked chocolate-filled glory. I would argue that there is no grounds against making a similar tentacled horror cake for a Nazi who just likes reading Lovecraft for their birthday, or a disgusting centipede curled up around a pile of eggs cake for a particularly kinky WASP's BDSM party, assuming that there is not some weird carve-out because of a particular phobia or whatever.

If they would be willing to design that cake or website or whatever thinking it's going to be used to promote "straight" cause, it should be available for order for any other cause.

You actually are bringing up my reasoning here--consider why we use Lorum Ipsum. It's to remove the influence of the text on evaluating a layout. I'm saying the creator's attitude towards the material is likewise an issue and will influence the quality of the work of they have a negative opinion of the subject matter. And you also have a good workaround in many cases--if the issue can be Lorum Ipsumed away, fine.

 

[Loren Pechtel]

(Now, when it comes to anything creative I'll take their side. Once it goes beyond picking options from existing lists into any sort of design then I support anyone saying "I don't want to design this.")

So you are distinguishing between providing a service and artistic expression when in fact they are the same thing, at least in this case. I'm not legally allowed to write a book, have it published and then not sell it to gays. This case is identical. If I have a business wherein I write stories for customers but refuse to write stories for gay people, I'm no different than someone who refuses to service blacks in my diner or doesn't allow them to use the bathroom.

Not comparable at all. You've already done the creative part--writing the book. Selling it to a gay isn't a creative act, you don't get to decide no to such transactions.

 

[Loren Pechtel]

Then there is speech v expression. Expression can exist outside of words. Conservatives will use a very very very broad definition of expression that includes just about any act. Liberals feel it expression needs to be more direct and clear, and not nearly adjacent. The mere act of selling something is considered "expression" by some conservatives.

I take a broad view on what constitutes expression but the conservatives are interpreting it wrong. Most of the refuse-to-deal-with cases involve offering a product for sale and then going back on that offer because they don't approve of something about the customer. By offering the goods for sale they gave up a certain amount of their freedom of expression.

(Now, when it comes to anything creative I'll take their side. Once it goes beyond picking options from existing lists into any sort of design then I support anyone saying "I don't want to design this.")

That is quite broad, the term "anything". I want a cylinder cake becomes expression verses rectangular prisms? I'd say that the expression comes when a disinterested person is able to derive an expression from the item.

Creative: You give the instructions to two different people and get appreciably different results. Not creative: You get virtually identical results.

 

[Jarhyn]

Then there is speech v expression. Expression can exist outside of words. Conservatives will use a very very very broad definition of expression that includes just about any act. Liberals feel it expression needs to be more direct and clear, and not nearly adjacent. The mere act of selling something is considered "expression" by some conservatives.

I take a broad view on what constitutes expression but the conservatives are interpreting it wrong. Most of the refuse-to-deal-with cases involve offering a product for sale and then going back on that offer because they don't approve of something about the customer. By offering the goods for sale they gave up a certain amount of their freedom of expression.

(Now, when it comes to anything creative I'll take their side. Once it goes beyond picking options from existing lists into any sort of design then I support anyone saying "I don't want to design this.")

But if they would design that for someone else....

Let's look at it from the perspective of a website, for example.

If the commissioner had presented a request for a color scheme and had left all the images as generic placeholders, such as an androgenous pair of profiles next to each other and so on, and asked for a website design "for promoting healthy relationships" with an arbitrary scheme, to be delivered with placeholder Lorum Ipsum, then the request is shaped in a general enough way that they are neither asked to provide something distinctly objectionable creatively.

For instance, I have some acquaintances ask for a custom wedding cake. The cake was in the shape of a monster. It gave no hint as to who it was for, other than that it was for someone who wanted an expensive cake shaped like an abomination.

The event this sexuality-agnostic grotesquery was delivered to was a same-sex wedding.

It is unarguably a piece of art, in all it's glorious eyestalk bedecked chocolate-filled glory. I would argue that there is no grounds against making a similar tentacled horror cake for a Nazi who just likes reading Lovecraft for their birthday, or a disgusting centipede curled up around a pile of eggs cake for a particularly kinky WASP's BDSM party, assuming that there is not some weird carve-out because of a particular phobia or whatever.

If they would be willing to design that cake or website or whatever thinking it's going to be used to promote "straight" cause, it should be available for order for any other cause.

You actually are bringing up my reasoning here--consider why we use Lorum Ipsum. It's to remove the influence of the text on evaluating a layout. I'm saying the creator's attitude towards the material is likewise an issue and will influence the quality of the work of they have a negative opinion of the subject matter. And you also have a good workaround in many cases--if the issue can be Lorum Ipsumed away, fine.

Well, there's more to it, insofar as sometimes, you're dealing with something like a "magenta and cyan cake with gold highlights, three layer." And as I have pointed out much like my grotesquery, itself entirely agnostic to sexuality or application (though I dare say it sounds rather wedding-cake shaped).

The issue here is that this isn't just about cakes. It's about the expectation that a homosexual person be served.

I've brought up the concept of the banana peel of evil a few times, with relation to slippery slope arguments: good and evil is not a spectrum, and while it can be messy finding it, there is a line.

As soon as there is a decision in the courts that supports not serving a customer on the basis of who they are rather than the basis of what they are attempting to buy, on the basis of something that cannot be validated (mere claim of faith), it is not "the next step" towards a return to Jim Crow, it is literally a legal opinion giving carte blanche on a new Jim Crow era, but for sexual minorities.

 

[Loren Pechtel]

You actually are bringing up my reasoning here--consider why we use Lorum Ipsum. It's to remove the influence of the text on evaluating a layout. I'm saying the creator's attitude towards the material is likewise an issue and will influence the quality of the work of they have a negative opinion of the subject matter. And you also have a good workaround in many cases--if the issue can be Lorum Ipsumed away, fine.

Well, there's more to it, insofar as sometimes, you're dealing with something like a "magenta and cyan cake with gold highlights, three layer." And as I have pointed out much like my grotesquery, itself entirely agnostic to sexuality or application (though I dare say it sounds rather wedding-cake shaped).

The issue here is that this isn't just about cakes. It's about the expectation that a homosexual person be served.

I've brought up the concept of the banana peel of evil a few times, with relation to slippery slope arguments: good and evil is not a spectrum, and while it can be messy finding it, there is a line.

As soon as there is a decision in the courts that supports not serving a customer on the basis of who they are rather than the basis of what they are attempting to buy, on the basis of something that cannot be validated (mere claim of faith), it is not "the next step" towards a return to Jim Crow, it is literally a legal opinion giving carte blanche on a new Jim Crow era, but for sexual minorities.

They should have no right to ask what you are, only what you're asking for. Blind is the best way to resolve discrimination.

 

[Jarhyn]

You actually are bringing up my reasoning here--consider why we use Lorum Ipsum. It's to remove the influence of the text on evaluating a layout. I'm saying the creator's attitude towards the material is likewise an issue and will influence the quality of the work of they have a negative opinion of the subject matter. And you also have a good workaround in many cases--if the issue can be Lorum Ipsumed away, fine.

Well, there's more to it, insofar as sometimes, you're dealing with something like a "magenta and cyan cake with gold highlights, three layer." And as I have pointed out much like my grotesquery, itself entirely agnostic to sexuality or application (though I dare say it sounds rather wedding-cake shaped).

The issue here is that this isn't just about cakes. It's about the expectation that a homosexual person be served.

I've brought up the concept of the banana peel of evil a few times, with relation to slippery slope arguments: good and evil is not a spectrum, and while it can be messy finding it, there is a line.

As soon as there is a decision in the courts that supports not serving a customer on the basis of who they are rather than the basis of what they are attempting to buy, on the basis of something that cannot be validated (mere claim of faith), it is not "the next step" towards a return to Jim Crow, it is literally a legal opinion giving carte blanche on a new Jim Crow era, but for sexual minorities.

They should have no right to ask what you are, only what you're asking for. Blind is the best way to resolve discrimination.

Indeed, but even when the eye has seen something, there is a reasonable expectation that people do their best to overlook it, as it were.

It's... Imagine someone that credits themselves at how good their metaphorical "eyesight" is. That they go the extra mile to see what they think others do not.

Let's imagine that this person owns a bakery. They make wedding cakes. Let's assume that their keen eyesight makes them suspect that the customer has genitals similar to those of their companion, dissimilar from the baker.

This pair of customers asks for a cake. It says "husband and wife!" On it.

Of course, the correct course of action here is to overlook what they think their keen vision has informed them of and sell them the exact same product as they sold the last ten customers who asked for a cake reading "husband and wife".

Blind is indeed best with regards to such things, but for our metaphorical eagle-eye, who not only does not believe in being blind but crows about the precision of their vision, what do you do?

Of course, they might not be seeing "the full picture", but there it is.

 

[Rhea]

It’s interesting to see the separate areas for discussing “free speech,” such as what is creative and what is based on the buyer’s conditions.

This one makes a lot of sense as a baseline. Further arguments would come from it, oof course, but it feels like a good starting point.

So if I had to give free speech a very simple legal definition that I think could be used by a jury to pass judgement on whether said speech is protected it would be "speech, reasonably intended and understood, which does not harm the fellow citizen."

I’m not sure this would cleave to the above, though - a disinterested person may not be able to see the real harm.

I'd say that the expression comes when a disinterested person is able to derive an expression from the item.

 

[Loren Pechtel]

They should have no right to ask what you are, only what you're asking for. Blind is the best way to resolve discrimination.

Indeed, but even when the eye has seen something, there is a reasonable expectation that people do their best to overlook it, as it were.

It's... Imagine someone that credits themselves at how good their metaphorical "eyesight" is. That they go the extra mile to see what they think others do not.

Let's imagine that this person owns a bakery. They make wedding cakes. Let's assume that their keen eyesight makes them suspect that the customer has genitals similar to those of their companion, dissimilar from the baker.

This pair of customers asks for a cake. It says "husband and wife!" On it.

Of course, the correct course of action here is to overlook what they think their keen vision has informed them of and sell them the exact same product as they sold the last ten customers who asked for a cake reading "husband and wife".

Blind is indeed best with regards to such things, but for our metaphorical eagle-eye, who not only does not believe in being blind but crows about the precision of their vision, what do you do?

Of course, they might not be seeing "the full picture", but there it is.

At the point that the baker goes looking for clues as to whether the couple is as they present they're deliberately violating the blind part and thus in the wrong.