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naraburns  nihil supernum  1yr ago (text post)   34927 thread views

Culture War Roundup for the week of March 13, 2023

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I think fundamental to free speech is a right to NOT here someones speech. Call it a limit in time or that two people can’t speak at the same time limit. A right to ignore seems fundamental to balancing out two peoples right to speech.

The left seems to not realize that. I can’t have free speech if when I’m having a conversation you have a megaphone yelling next to me. Law students should get this complexity.

While Rights always need balanced since they often interfere with others rights. I don’t think a lot of 2020 riots were 1st amendment protected. Because they interfered with others right to speech. If I owned a sandwich shop or say a CVS I can’t advertise my goods/sell if a crowd is outside yelling. A merchant would seem to me to have a right to communicate with their customer.

Obviously all things need to be balanced. On a typical walk in the city their are the annoying people trying to sell some do-gooders, they asks if I have time to stop and chat. And it’s admittedly annoying have to turn them down everyday. Sometimes I walk a marginally longer route because I know where they set up. I think they do violate my right to ignore but it’s relatively minor versus them having a spot to give their message. Sometimes I’m probably even posting on the motte some times while walking so their interruption interferes with my first amendment rights.

Point is there are always balancing acts. And I don’t think the first amendment is a right to interfere unlimited to others.

To me it is more a freedom of association issue.

The fed soc invited a speaker to a particular event and outsider agitators interfered with that association.

The only issue about speech is if the law school allowed groups to generally permit speakers but then practiced viewpoint discrimination.

One other thought — was the judge in anyone fiscally harmed? If so, is there a claim for tortious interference.

I’ve never understood where the idea of a “right to not hear”. The right to speak sure. But I don’t see anything in that statement that requires either that others not disrupt or that you get to have an audience.

If you don’t have a right not to hear then no one has a right to speech. Seems implicit. Since any corporation could blast out noise pollution to disrupt anyone’s speech.

And freedom of association exists to and is after speech.

I don't agree that there's anything implicit about a right to not hear. I think that what is actually implicit in free speech is a right to hear what is being said. Someone disrupting a lecture or whatever isn't infringing on a right to not hear them, but rather on your right to hear the person who is supposed to be speaking.

I guess you could just call that a tragedy if the commons but then you just end up with people competing on who has the loudest microphone to the point that human ears are damaged. And the end result is no communication happens. I don’t think the first amendments purpose is to facilitate ear damage. It’s goal is the exchange of ideas. By founding intent that’s what they were trying to achieve. Not turning the public square into an Aviici concert.

The only way communication is achieved is with a right to hear.

I agree that there's a right to hear what someone has to say implicit in the right to free speech. But I see you vacillating in different posts about whether you describe there being a "right to hear" or a "right to not hear". I don't agree that the latter is implicit in the right to free speech.

A right to not hear would be scope creep. It would not only apply to situations where someone was disrupting speech but also would apply when you just plain didn't like what someone had to say. Indeed, the protestors at Stanford would probably agree that they have a right to not hear this guy give his lecture.

So yes, I agree with you that the right to free speech implies a right to hear what is said (otherwise it would be just shouting into the void and meaningless). I do not agree with your assertion that there is also a right to not hear something/someone which is implicit in the right to free speech.

Are there not always competing Speech to hear at the same time? During the summer 2020 riots were there not store clerks trying to sell goods? Talking to customers? The protest would have interfered with their ability to speak to each other.

Or even if I wanted to stand in Times Square and protest came. I had my AirPods in listening to Tupac. I want to hear his speech?

For the Stanford situation it was in a classroom so they weren’t exposed to that speech.

So yes I think there is always some balancing of rights. Wanting to listen to Tupac in a highly public space probably shouldn’t block a larger protest. A store Can shutdown a day for a protest but they probably do have a right not to be shutdown for 6 months straight of protest.

Technically freedom of assembly is listed after speech so I don’t think speech can interfere with others freedom of assembly. I guess what it comes down to you need balance in these things. Otherwise you don’t really have these rights and it’s a free for all blocking everything.

@sliders1234 has something of a point, but this is a solved problem. There is a class of government-imposed limits on speech that is held to be entirely consistent with the First Amendment--the set of time/place/manner restrictions. Critically, these regulations must be content- and viewpoint-neutral; noise regulations in residential areas after a given hour of the evening would be a common example.

It feels like it’s becoming less of a “solved” problem.

That being said I’m no free speech absolutists. If I thought Speech was leading to really bad things and people were believing an ideology I’d have no problem with summary executions and jail for the speakers. My example would be I am fine with 2% of the population having get togethers discussing how the USSR was actually really good and we do that. But if they started pulling in 10-20% of the country like say has happened in Latin America then I’m fine going all Pinochet on them. Which I guess the federalist are the communists to these people. I just don’t think that behavior fits in the spirit or law of free speech.

Of course today it’s balanced. People might be intimidated by these tactics but then they say fuck it and vote in a guy like Trump to push back.

The 1A doesn’t come into it at all.

The broader right of free speech, yeah, it’s good practice. In a golden-rule sense we can argue that the privilege of the strong (or loud) ought to be limited. “There but for the grace of God go I.” This is not up to the 1A, which only keeps the government from infringing, and even then only to a point. It’s not obligated to secure your platform for commercial or private speech.

Yes, but institutions of higher learning which accept government dollars in various ways can be compelled to accept federal standards on various things. This is how Title IX works, for example. It would be a trivial dodge around the IA if the government could, instead of itself paying bullies and thugs to break the outgroup's kneecaps, get away with only providing "fellowship grants" to social clubs that, in addition to pot-luck lunches on Thursdays, also went around breaking the outgroup's kneecaps.

So what if a corporation released noise pollution. So other people can’t speak. That noise pollution is 1A protected Speech correct so the government can’t block it. Which means there is no free speech.

A freedom of speech seem to include a freedom to hear (ie to have effective communications). Without a freedom to hear then you can’t have free speech.

The exact hypothetical would be the Koch brothers hating Yale so they shutdown Yale with giant noise machines. This is essentially what Stanford allowed to happen to the judge.

The government is perfectly allowed to regulate noise pollution. That’s mostly for the other rights like life, liberty and happiness, I suppose, so the hypothetical isn’t a very good fit.

More importantly, there is a difference between positive and negative actions. Stanford is not obligated to make a welcoming channel for any particular idea. It’s merely prevented from clogging those channels itself.

I think there’d be a case if Stanford actively set up the interference as viewpoint discrimination. This gets thorny very quickly when separating private speech from employee speech from public speech. Perhaps the DEI Dean’s involvement counts, and we’ll see a lawsuit accordingly.

I mean invading another groups space and yelling so they can’t speak sounds exactly like noise pollution to me.

So the Koch brothers could just blast I love Jesus outside of Yale and that’s Speech right?

If Incorporation Doctrine can bind states by the provisions intended to bind only the federal government, why can't it also bind other subjects of fedeal law?

I say, Incorporate the First, against Facebook!

I realize you’re being hyperbolic, but incorporation is based on protecting due process. Forcing that to apply to private companies or individuals would be a huge jump and, in turn, violate freedom of association.

It would probably take a tiring effortpost to correct my misunderstanding here, but don't the Education Amendments of 1972 (most famously Title IX) mean the federal gov is treating universities as an extension of government institutions because they receive public funding, and thus must respect constitutional rights?

Yes and no.

I want to say @KMC is right and public universities have been nationalized for free speech purposes. This might apply to Stanford should they suppress speech, but I wouldn’t expect it to obligate giving Judge Duncan a platform. In general, the 1A doesn’t say what must be provided, only what must not be infringed.

The other flies in the ointment are all the caveats like “compelling interest.” Basically, free speech usually only holds until a wannabe restrictor finds another conflicting right to protect. Here that would be the students’ and employees’ speech rights, I guess?

I won’t rule out the possibility that someone has a case here, but it’s not really what I’d expect to see.

Thank you. This was my understanding as well. The way that the federal government requires private universities to adhere to the Civil Rights Act is by tying those requirements to federal dollars. The scope of what is covered by federal dollars has increased such that any institution that receives any federal money for anything is fully liable to comply, but that also means that it is the federal government who is acting, not the private institution, and thus the bill of rights does apply.

So what’s the next step? This federal judge or students could sue Stanford for violating their civil rights?

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