The context of speech is crucial when determining whether it is protected by the First Amendment.
The "shouting fire in a crowded theater" analogy was used to illustrate this point. While it is generally protected to say "fire" in a crowded theater, it is not protected to say "fire" in a crowded theater with the intent of causing a panic. In other words, the context of the speech can make all the difference.
Similarly, the events of January 6, 2021 were not merely free speech. They were an insurrection, an attempt to overthrow the legitimate government of the United States. The people who participated in the insurrection were not exercising their right to free speech; they were committing a crime.
It is important to remember that the First Amendment does not protect all speech. It does not protect speech that is intended to incite violence or to overthrow the government. It also does not protect speech that is defamatory or obscene.
Yes. Michael makes a good point, but it misses the intent of Walz's comment. Inciting a mob is not free speech. Similarly, Vance attacked "censorship" but he was talking about social media companies making rules on what can be on their sites. This isn't censorship, but rather capitalism, as these companies are trying to please users so they can make money on advertising. I do think free speech is the most important, if the most difficult at times, right that we have.
Tim Walz was not necessarily wrong to use the analogy about yelling fire in a crowded theater, as it still conveys the principle that free speech has limits, especially when it comes to inciting harm or chaos through knowingly spreading falsehoods. Although the analogy has been misused and Justice Holmes later expressed concerns about its application, the underlying concept that free speech does not protect intentionally causing harm through lies remains a valid legal principle. Missing this point is dangerous in today's political climate as we know the Trumpists, including J.D. Vance, are indeed knowingly spreading lies to create division and hatred and it is working. I am disappointed that you would miss this point and give air to any Trumpists who might read this.
Under the First Amendment, knowingly spreading lies to create division and hatred must be protected as long as it does not express provably false assertions against an individual. Even though, it's false to claim that Trump won the 2020 election, his assertion of the claim is protected opinion. If losing candidates, without proof, claim they actually won, unless they incite their followers to immediate violence, such an assertion is protected speech. Further, we must criminalize speech with standards that are vague and over broad. To have a law that explicitly states that "knowingly spreading lies to create division and hatred" is a punishable crime, would be to put an unconstitutional chill on speech, as ti does not allow would-be speakers to know the parameters of what is legal and what is illegal to say.
Your argument rest on philosophy not emperical evidence. People died because of covid lies, people died at the capital riots. The law is based only on philosophical arguments.
There is no question that people died at the capital riots. However, the question is whether Trump spoke words that were illegal because they incited to immediate violence. He is completely wrong to pardon the rioters as he says he will. But, that does not make him legally liable for what they did if he did not incite them to immediate violence.
We have to watch out for the "heckler's veto." This is when someone is punished because of a listener's actions. Let's say I am persecuted by a local religious right wing government official in a certain region, because I am an atheist. I take to publicly available media to protest that I am being singled out for fabricated charges because I am an atheist. I should not be held civilly or criminally liable if some other atheists become so incensed that they assassinate this local right wing official.
RFK Jr is wrong to advise against the Covid vaccine. However, if some people choose to take his advice and die because they followed his views, he should not be indicted for manslaughter. People should know better than to think that a politician is an expert in the prevention and treatment of viruses.
If a self proclaimed doomsday prophet says the world will end in two months, and the only way to survive is to climb to the top of Mr. Everest, and a number of people attempt this and die in the process, this self appointed prophet shouldn't be held civilly or criminally responsible because some people believed his ridiculous prediction.
Unless we incite people to immediate violence, we should not lose First Amendment protection because of how some people might react to what we say. Otherwise, what we say will only be protected from prosecution if no one is irrationally motivated to destructive action by our mere words. An unstable person who has a completely unjustified reaction to those words shouldn't have the power, by their actions, to determine if what we said has First Amendment protection or not.
For 20 years, I was the main public speaker and debater for the California Abortion and Reproductive Rights Action League. Frequently my opponents would say that I am promoting the killing of babies. That's a First Amendment protected opinion. If some of their followers killed me because of hearing this, my opponent should not be legally liable for saying no more than that by promoting abortion rights, I am promoting the killing of babies.
However, if this same opponent said that somebody needs to kill me as soon as possible so that I don't continue to promote the slaughter of babies, by way of my defense of the continued legality of abortion, and someone hears this and shoots me, the opponent who said this should now be held legally accountable because there was an incitement to immediate violence.
So, even if there is empirical evidence that people will respond irrationally to what a speaker says, in the absence of an immediate incitement to violence, the unjustified response to what was said should not deprive the speaker of First Amendment protection. Otherwise, any irrational person who has the wrong reaction to what they heard will have the power to retroactively, by their subsequent actions, determine if what we said is constitutionally protected. This would chill the expression of any controversial ideas.
Rights don't exist in objective reality. We create rights to promote the well-being of everyone. If a "right" that we have created is promoting violence, death, and division no matter how delayed or "irrational" the reaction is, then it is time to reassess that "right".
If the definition of whether speech has constitutional protection is dependent upon the irrational reaction of others, there will never again be any guaranteed free speech because even months or years later, an irrationally violent act by an unstable person, who heard what was said, could retroactively remove the protection from the speech the speaker rightfully relied on as having First Amendment protection. This is a major flaw in the "no matter how delayed or 'irrational'" test.
You may understand it, but your rejection of it, if your view ever prevailed, would put a horrendous chill on free speech. My responses are not to persuade you so much as they are for others who are reading our exchange.
Rethinking Free Speech: Moving Beyond "Rights" to an Empirical Framework
In the modern world, few concepts are as sacred to democratic societies as free speech. Traditionally, it has been upheld as an "inalienable right," a foundation of freedom, and a critical aspect of individual liberty. However, grounding arguments for free speech solely in its status as a "right" may not be as sound or universally applicable as once believed. While historically the term "right" has carried moral weight, recent insights from evolutionary psychology suggest that our conceptualization of rights, including free speech, is a heuristic—a mental shortcut created by evolutionary pressures to help societies function cohesively. By approaching free speech from a more empirical, outcomes-based perspective, we can refine its application to maximize social benefit.
The Evolutionary Basis of Rights as Heuristics
The concept of rights did not evolve from objective truths or empirical realities. Instead, rights like free speech arose from an evolving human need to establish predictable social behavior and reduce conflicts within groups. From an evolutionary perspective, the sense of a "right" was a useful mechanism that encouraged individuals to accept shared values and norms. Viewing rights as inherent or inalienable stems more from this evolved heuristic than from any concrete, universal truth. If we treat rights as adaptive mental constructs rather than as inherent truths, we open the possibility of revisiting these constructs based on their societal outcomes.
Free speech as a heuristic has served as a mechanism to safeguard individuals from arbitrary restrictions on thought and expression, thereby encouraging diversity of thought and innovation. Yet, understanding it as an evolved heuristic implies that it is not necessarily fixed but can be adapted as circumstances change. Since this heuristic exists for adaptive benefits rather than moral absolutes, we can assess and modify it in ways that better serve our evolving society.
The Problem with Justifying Free Speech Solely as a Right
To argue that free speech is a "right" does not address how it functions within society. By placing free speech on a pedestal as an immutable value, we risk overlooking its practical impact. Framing free speech as an untouchable right may hinder our ability to recognize when it produces negative consequences, such as the spread of misinformation or divisive rhetoric that strains social cohesion. If we accept that rights are not objectively real but are instead constructs intended to serve a purpose, we can begin to treat free speech as a tool to evaluate based on its empirical results.
Grounding free speech arguments in a "right" creates a value-based argument rather than a fact-based, empirical one. Values are subjective; they reflect ideals but may not always result in practical outcomes. In contrast, science and empiricism rely on observing tangible results, allowing society to make adjustments that lead to improved well-being and reduced harm. Therefore, to continue justifying free speech based on values alone is to rely on a subjective, value-laden approach that might not yield the most effective or constructive outcomes.
Building a Case for Empirically Evaluated Free Speech
If we shift the basis of free speech from a perceived "right" to an empirically assessed policy, we can make it a more flexible and socially responsive tool. For instance, if studies show that certain applications of free speech lead to harmful outcomes—such as fostering social divisions or facilitating the spread of dangerous misinformation—an empirically grounded society would have the flexibility to address and refine its understanding of free speech in response to those outcomes. An empirical framework would evaluate free speech based on factors such as societal well-being, resilience against disinformation, and the encouragement of constructive dialogue.
Under this framework, the aim would not be to eliminate free speech but to adapt its implementation to minimize harm while maximizing its benefits. This approach aligns with the modern need for social systems that can adjust to changing information and rapidly evolving communication landscapes. Free speech, if grounded in outcomes rather than values, can become a dynamic instrument capable of supporting social health, innovation, and inclusivity without rigidly adhering to historical notions that may no longer be entirely applicable.
A Call for Pragmatic Flexibility
This shift from viewing free speech as a "right" to an empirically validated policy does not diminish its value. Rather, it liberates the concept from the confines of outdated frameworks, allowing it to grow with the needs of society. It acknowledges that free speech is valuable not because it is inherently right, but because it is an effective tool for social flourishing. If, however, parts of its application begin to hinder that flourishing, then we must have the intellectual flexibility to adapt.
This approach also encourages a cultural shift towards basing arguments on empirical outcomes rather than on deeply held values that cannot be objectively verified. Embracing this method means that discussions about rights, including free speech, would be informed by observable data and the measurable impact of speech policies on society.
Conclusion
By understanding free speech as a tool rather than an immutable right, society can engage in a more mature and effective discourse about its application. This empirically grounded approach enables society to adapt free speech policies based on actual outcomes, thus making them more effective in achieving the desired balance between individual freedom and social responsibility. Transitioning to an empirically informed model for free speech will help it serve as a tool for progress rather than an inflexible principle.
In a rapidly evolving society, this shift promises a pragmatic, resilient approach to policy-making that truly serves the greater good. Free speech remains essential, but it is by embracing an adaptive, empirically driven model that we ensure it functions effectively, now and in the future.
Instead of focusing on adherence to the intentions of the Founding Fathers or past Supreme Court Justices, we should examine whether their ideas still hold value today. Basing decisions purely on their intentions is an appeal to authority, which is not a rational or scientific approach. The Founders and Justices of earlier eras operated within specific historical, social, and scientific contexts that differ vastly from our own. Although their insights may offer foundational perspectives, they should serve as a reference rather than a mandate.
Reliance on historical figures, no matter how revered, can risk limiting our ability to critically assess the suitability of their views for modern society. A rational and scientific approach demands that we evaluate these ideas on their merits and adapt them if needed, ensuring they remain relevant to contemporary values and realities. This enables a forward-thinking approach rooted in principles of adaptability and evidence rather than rigid deference to authority.
By focusing on what is, at best, a nuanced argument about a misinterpretation of free speech by a free speech advocate, you just gave air to the most powerful anti free speech force to ever hit america, and that is Trumpism.
The context of speech is crucial when determining whether it is protected by the First Amendment.
The "shouting fire in a crowded theater" analogy was used to illustrate this point. While it is generally protected to say "fire" in a crowded theater, it is not protected to say "fire" in a crowded theater with the intent of causing a panic. In other words, the context of the speech can make all the difference.
Similarly, the events of January 6, 2021 were not merely free speech. They were an insurrection, an attempt to overthrow the legitimate government of the United States. The people who participated in the insurrection were not exercising their right to free speech; they were committing a crime.
It is important to remember that the First Amendment does not protect all speech. It does not protect speech that is intended to incite violence or to overthrow the government. It also does not protect speech that is defamatory or obscene.
Yes. Michael makes a good point, but it misses the intent of Walz's comment. Inciting a mob is not free speech. Similarly, Vance attacked "censorship" but he was talking about social media companies making rules on what can be on their sites. This isn't censorship, but rather capitalism, as these companies are trying to please users so they can make money on advertising. I do think free speech is the most important, if the most difficult at times, right that we have.
"still on the lamb in Moscow"
I would feel sheepish making that mistake... ;-)
FYI: It's 'on the lam'
"Sheepish!" You are ba-a-a-ah-d.
Tim Walz was not necessarily wrong to use the analogy about yelling fire in a crowded theater, as it still conveys the principle that free speech has limits, especially when it comes to inciting harm or chaos through knowingly spreading falsehoods. Although the analogy has been misused and Justice Holmes later expressed concerns about its application, the underlying concept that free speech does not protect intentionally causing harm through lies remains a valid legal principle. Missing this point is dangerous in today's political climate as we know the Trumpists, including J.D. Vance, are indeed knowingly spreading lies to create division and hatred and it is working. I am disappointed that you would miss this point and give air to any Trumpists who might read this.
What was your intent on writing this piece?
Under the First Amendment, knowingly spreading lies to create division and hatred must be protected as long as it does not express provably false assertions against an individual. Even though, it's false to claim that Trump won the 2020 election, his assertion of the claim is protected opinion. If losing candidates, without proof, claim they actually won, unless they incite their followers to immediate violence, such an assertion is protected speech. Further, we must criminalize speech with standards that are vague and over broad. To have a law that explicitly states that "knowingly spreading lies to create division and hatred" is a punishable crime, would be to put an unconstitutional chill on speech, as ti does not allow would-be speakers to know the parameters of what is legal and what is illegal to say.
https://open.substack.com/pub/michaelrivera2/p/reevaluating-free-speech-in-the-digital?r=fw1xc&utm_campaign=post&utm_medium=web
Your argument rest on philosophy not emperical evidence. People died because of covid lies, people died at the capital riots. The law is based only on philosophical arguments.
There is no question that people died at the capital riots. However, the question is whether Trump spoke words that were illegal because they incited to immediate violence. He is completely wrong to pardon the rioters as he says he will. But, that does not make him legally liable for what they did if he did not incite them to immediate violence.
We have to watch out for the "heckler's veto." This is when someone is punished because of a listener's actions. Let's say I am persecuted by a local religious right wing government official in a certain region, because I am an atheist. I take to publicly available media to protest that I am being singled out for fabricated charges because I am an atheist. I should not be held civilly or criminally liable if some other atheists become so incensed that they assassinate this local right wing official.
RFK Jr is wrong to advise against the Covid vaccine. However, if some people choose to take his advice and die because they followed his views, he should not be indicted for manslaughter. People should know better than to think that a politician is an expert in the prevention and treatment of viruses.
If a self proclaimed doomsday prophet says the world will end in two months, and the only way to survive is to climb to the top of Mr. Everest, and a number of people attempt this and die in the process, this self appointed prophet shouldn't be held civilly or criminally responsible because some people believed his ridiculous prediction.
Unless we incite people to immediate violence, we should not lose First Amendment protection because of how some people might react to what we say. Otherwise, what we say will only be protected from prosecution if no one is irrationally motivated to destructive action by our mere words. An unstable person who has a completely unjustified reaction to those words shouldn't have the power, by their actions, to determine if what we said has First Amendment protection or not.
For 20 years, I was the main public speaker and debater for the California Abortion and Reproductive Rights Action League. Frequently my opponents would say that I am promoting the killing of babies. That's a First Amendment protected opinion. If some of their followers killed me because of hearing this, my opponent should not be legally liable for saying no more than that by promoting abortion rights, I am promoting the killing of babies.
However, if this same opponent said that somebody needs to kill me as soon as possible so that I don't continue to promote the slaughter of babies, by way of my defense of the continued legality of abortion, and someone hears this and shoots me, the opponent who said this should now be held legally accountable because there was an incitement to immediate violence.
So, even if there is empirical evidence that people will respond irrationally to what a speaker says, in the absence of an immediate incitement to violence, the unjustified response to what was said should not deprive the speaker of First Amendment protection. Otherwise, any irrational person who has the wrong reaction to what they heard will have the power to retroactively, by their subsequent actions, determine if what we said is constitutionally protected. This would chill the expression of any controversial ideas.
Rights don't exist in objective reality. We create rights to promote the well-being of everyone. If a "right" that we have created is promoting violence, death, and division no matter how delayed or "irrational" the reaction is, then it is time to reassess that "right".
If the definition of whether speech has constitutional protection is dependent upon the irrational reaction of others, there will never again be any guaranteed free speech because even months or years later, an irrationally violent act by an unstable person, who heard what was said, could retroactively remove the protection from the speech the speaker rightfully relied on as having First Amendment protection. This is a major flaw in the "no matter how delayed or 'irrational'" test.
You are working hard to make a distinction I already thoroughly understand.
You may understand it, but your rejection of it, if your view ever prevailed, would put a horrendous chill on free speech. My responses are not to persuade you so much as they are for others who are reading our exchange.
Rethinking Free Speech: Moving Beyond "Rights" to an Empirical Framework
In the modern world, few concepts are as sacred to democratic societies as free speech. Traditionally, it has been upheld as an "inalienable right," a foundation of freedom, and a critical aspect of individual liberty. However, grounding arguments for free speech solely in its status as a "right" may not be as sound or universally applicable as once believed. While historically the term "right" has carried moral weight, recent insights from evolutionary psychology suggest that our conceptualization of rights, including free speech, is a heuristic—a mental shortcut created by evolutionary pressures to help societies function cohesively. By approaching free speech from a more empirical, outcomes-based perspective, we can refine its application to maximize social benefit.
The Evolutionary Basis of Rights as Heuristics
The concept of rights did not evolve from objective truths or empirical realities. Instead, rights like free speech arose from an evolving human need to establish predictable social behavior and reduce conflicts within groups. From an evolutionary perspective, the sense of a "right" was a useful mechanism that encouraged individuals to accept shared values and norms. Viewing rights as inherent or inalienable stems more from this evolved heuristic than from any concrete, universal truth. If we treat rights as adaptive mental constructs rather than as inherent truths, we open the possibility of revisiting these constructs based on their societal outcomes.
Free speech as a heuristic has served as a mechanism to safeguard individuals from arbitrary restrictions on thought and expression, thereby encouraging diversity of thought and innovation. Yet, understanding it as an evolved heuristic implies that it is not necessarily fixed but can be adapted as circumstances change. Since this heuristic exists for adaptive benefits rather than moral absolutes, we can assess and modify it in ways that better serve our evolving society.
The Problem with Justifying Free Speech Solely as a Right
To argue that free speech is a "right" does not address how it functions within society. By placing free speech on a pedestal as an immutable value, we risk overlooking its practical impact. Framing free speech as an untouchable right may hinder our ability to recognize when it produces negative consequences, such as the spread of misinformation or divisive rhetoric that strains social cohesion. If we accept that rights are not objectively real but are instead constructs intended to serve a purpose, we can begin to treat free speech as a tool to evaluate based on its empirical results.
Grounding free speech arguments in a "right" creates a value-based argument rather than a fact-based, empirical one. Values are subjective; they reflect ideals but may not always result in practical outcomes. In contrast, science and empiricism rely on observing tangible results, allowing society to make adjustments that lead to improved well-being and reduced harm. Therefore, to continue justifying free speech based on values alone is to rely on a subjective, value-laden approach that might not yield the most effective or constructive outcomes.
Building a Case for Empirically Evaluated Free Speech
If we shift the basis of free speech from a perceived "right" to an empirically assessed policy, we can make it a more flexible and socially responsive tool. For instance, if studies show that certain applications of free speech lead to harmful outcomes—such as fostering social divisions or facilitating the spread of dangerous misinformation—an empirically grounded society would have the flexibility to address and refine its understanding of free speech in response to those outcomes. An empirical framework would evaluate free speech based on factors such as societal well-being, resilience against disinformation, and the encouragement of constructive dialogue.
Under this framework, the aim would not be to eliminate free speech but to adapt its implementation to minimize harm while maximizing its benefits. This approach aligns with the modern need for social systems that can adjust to changing information and rapidly evolving communication landscapes. Free speech, if grounded in outcomes rather than values, can become a dynamic instrument capable of supporting social health, innovation, and inclusivity without rigidly adhering to historical notions that may no longer be entirely applicable.
A Call for Pragmatic Flexibility
This shift from viewing free speech as a "right" to an empirically validated policy does not diminish its value. Rather, it liberates the concept from the confines of outdated frameworks, allowing it to grow with the needs of society. It acknowledges that free speech is valuable not because it is inherently right, but because it is an effective tool for social flourishing. If, however, parts of its application begin to hinder that flourishing, then we must have the intellectual flexibility to adapt.
This approach also encourages a cultural shift towards basing arguments on empirical outcomes rather than on deeply held values that cannot be objectively verified. Embracing this method means that discussions about rights, including free speech, would be informed by observable data and the measurable impact of speech policies on society.
Conclusion
By understanding free speech as a tool rather than an immutable right, society can engage in a more mature and effective discourse about its application. This empirically grounded approach enables society to adapt free speech policies based on actual outcomes, thus making them more effective in achieving the desired balance between individual freedom and social responsibility. Transitioning to an empirically informed model for free speech will help it serve as a tool for progress rather than an inflexible principle.
In a rapidly evolving society, this shift promises a pragmatic, resilient approach to policy-making that truly serves the greater good. Free speech remains essential, but it is by embracing an adaptive, empirically driven model that we ensure it functions effectively, now and in the future.
https://open.substack.com/pub/michaelrivera2/p/reevaluating-free-speech-in-the-digital?r=fw1xc&utm_campaign=post&utm_medium=web
Instead of focusing on adherence to the intentions of the Founding Fathers or past Supreme Court Justices, we should examine whether their ideas still hold value today. Basing decisions purely on their intentions is an appeal to authority, which is not a rational or scientific approach. The Founders and Justices of earlier eras operated within specific historical, social, and scientific contexts that differ vastly from our own. Although their insights may offer foundational perspectives, they should serve as a reference rather than a mandate.
Reliance on historical figures, no matter how revered, can risk limiting our ability to critically assess the suitability of their views for modern society. A rational and scientific approach demands that we evaluate these ideas on their merits and adapt them if needed, ensuring they remain relevant to contemporary values and realities. This enables a forward-thinking approach rooted in principles of adaptability and evidence rather than rigid deference to authority.
Michael Shermer, I paid for the premium subscription to Skeptic which is supposed to give me a response to all my comments. I would like a response to this one. https://substack.com/home/post/p-150956409?r=fw1xc&utm_campaign=post&utm_medium=web
By focusing on what is, at best, a nuanced argument about a misinterpretation of free speech by a free speech advocate, you just gave air to the most powerful anti free speech force to ever hit america, and that is Trumpism.
https://open.substack.com/pub/michaelrivera2/p/reevaluating-free-speech-in-the-digital?r=fw1xc&utm_campaign=post&utm_medium=web
Bullseye, Michael!