Let me highlight an old case schenck vs US where the court held
"The question in every case is whether the words used are used in such circumstances and are if such a nature as to create a clear and present danger that will bring about substantive evils that Congress has a right to prevent" and of course newyork vs ferber where the court held
"The question whether the speech is or is not protected by the first amendment often depends on the content of the speech."
When it comes to rights, the US constitutional theory is perhaps one of the most advanced political thoughts on the matter so their concepts on first amendments and the legal theories from it should not be ignored.
The founding fathers of the US determined that the single country experimenting in unheard of constitutional ideals and concepts was the need of the hour rather than them breaking into small dystopian states and they went around convincing the people that this constitutional experiment was the need of the hour lest we all fragment into a conflict forever. If we go by the theory so presented then that means the founding fathers were wrong in their thinking, after all they presumed the worse of the states and human nature which would govern or elect the states. They saw hobbeian conflict in a sense.
The US supreme court recently had discussed this matter and has been taking a more restrictive view and we can see this with the case US vs stevens
"From 1791 to present however the first amendment has permitted restrictions upon the content of speech in a few limited areas and has never included a freedom to disregard these traditional limitations. "
This new growing legal thought is of course due to the rise of social media and fake news and new concepts of this freedom.
With that let me highlight something. There is no judge in the world that enjoys a case based on free speech because, unlike previous doctrines, free speech is a fundamental right that has ballooned to a huge level and adjudging free speech is one of the hardest things to do. Infact the very nature of free speech is contradictory and for that you simply need to read the second line of this right which contains exceptions and limitations.
Now there are several schools of thoughts in free speech and you can find them everywhere. From Pakistan to US, from India to Canada, these advocates exist and espouse their theories and this is very important because these are not absolute legal doctrines but theories for they fail in some scenarios and are desired in another. You will find social thinkers, jurists, political thinkers all arguing on what is the best option weighing in natural freedoms and constitutional limitations and state security.
@dBSPL contention on how free speech does not weaken state security but strengthens are a sub branch of the autonomy theory
Autonomy Theory
It has been argued that Autonomy is a fundamental aspect of free speech. The most basic and thus crude form of the theory is that there should be a from of autonomy on the speech of the speaker and the listener. This form often argues against third party interference, often the state in question, and allow for the listener to create its own thoughts and opinions based on the speech itself.
Now one of the growing concerns are that the concept of free speech is not just about allowing the speaker and listener to do as they desire and for the state to not interfere yet this is the only segment that is mostly discussed. What jurists and judges often point out is that the political and social concepts of free speech are a mere section of the larger impact of free speech and this is very important to understand. Free speech is not just about political free thought but about the ability to say anything without any restriction whatsoever but if such is allowed then one can say anything no matter how defamatory the statement is or how false. If you were to talk the cases and judgments a 100 years back, you would notice that judgments, as times went by, became more restrictive and that is due to the impact that social media and the growing platforms are having on free speech. Right to liberty is considered a very autonomous fundamental right yet its growth is the same as it was a 100 years ago, that a person has the right to life and liberty. Its evolution pales in comparison to the evolution of free speech where a person sitting 12000 miles away can speak something and it is heard to the ends of the earth. The evolution and the autonomy of this fundamental right is at another level.
Modern autonomy theory sees waste autonomy to be afforded to the speaker and this has been forwarded by jurists but as stated by some jurists, the jurists have strayed away from the constitutional spirit than the courts and judges, who have stayed true to the spirit of the constitution of the US.
Strict liability
Intent of the speech plays an important role in the concept of free speech and the restrictions that are placed upon it however should strict liability be placed on this whether speaker’s intent bears any
intrinsic relation to speech protection. One way to get at an answer is toconsider strict liability as a regulatory option. If speaker’s intent imposesno constraint, then the government should be able to interfere with a message by imposing strict liability on the speaker. If strict liability seems improper, however, then speaker’s intent may play a role in defining speech protection. A focus on strict liability gets at the binary possibilities of caring
about speaker’s intent to some degree or not caring about it at all. It will not show, for example, that negligent statements should be protected while knowing ones should not.
Strict liability will focus entirely on whether there was a claim of a form and ignore the intent of the person. So lets say that you released an album of a song which held lyrics on "fight the Police". A person listening to this, grabs a gun and fires at the police. Strict liability would focus on how your lyrics caused violence. Thjis would seen unfair since the artist was simply trying to entertain the public and did not intend for his listeners to kill the police. Blasphemy laws have strict liability inplaced despite elements of intent being a central part of the state and religious legal doctrine.
Intent based Criminal liability and tortious speech
A person makes a speech against his competitor for the municipal election where he quotes a false news source to highlight how his competitor was involved in domestic abuse whilst high on cocaine. The competitor loses the election and sues the speaker. Here comes two very important concepts "Intent" and "knowledge" and both are important. Did he mean to defame his opponent without concrete evidence and did he have the knowledge of the falsity of the news? Should he be punished. Courts have often relied on these two principles and i know that all of you will say that "we are talking about political free speech, but that is the problem. Political free speech is a part of free speech, not the entirety of it. Its free speech, not free political speech so when we say allow unrestricted free speech, we are saying say anything or write anything whenever and wherever you want. Whatever it may be, it is protected. The very nature of this is so vast that is sends chill in the spine.
Lets continue with the musician example. So we have the tortious musician here. Tort liability here is governed by the negligence standard, not strict liability. So lets say that the Tortious Musician acted reasonably in failing to foresee and forestall the risk of harm to police officers, then he did not act negligently and thus should not be
liable in tort but a policeman just died and lets say that even more are in danger because what if others start attacking the police in a bid to "Fight the police". The artist highlights that he meant that people should fight brutality and take legal and appropriate steps as citizens of the state and not shot the police. These3 are very important concepts since we are discussing free speech here.
Assume the Tortious Musician acted without intent, knowledge, or recklessness but may have behaved negligently. If tort principles are the only force defining liability, then liability will depend on factual determinations.
The issues should be essentially the same ones faced by other defendants whose conduct allegedly enabled intentional third-party misconduct, such as the owners of a shopping center whose poorly lit parking lot
allegedly facilitated an attack. The defendant should be facing a trial on the questions of breach (whether his behavior was unreasonable) and proximate cause (whether the risk that materialized was of the kind that made his behavior negligent in the first place). Both of these breaches are questions of fact and in this day and age, reasonable people could well disagree over whether the risk of what are essentially copycat acts is one that an entertainer should foresee and try to avoid. Not only are these factual questions; they are factual questions that
judges might be inclined to give to a jury. If, however, lack of liability seems a matter of law, then free-speech
principles are likely at work. Factual questions of breach and proximate cause should be beside the point, because the Tortious Musician should be able to argue that speakers who negligently risk copycat acts should be
insulated from liability. They should by definition be differently situated from other actors, such as shopping-center owners. This outcome seems to capture more accurately the intuition against strict liability in this case.
It thus speaks to what free speech, not tort, requires. One final observation is that both tort and criminal law countenance strict liability to some extent, and some speech could be described as having the characteristics that make strict liability appropriate. The criminal law permits strict liability for “regulatory” or “public welfare
offenses” said to “result from neglect rather than from positive aggression or invasion of the rights of others, . . . inflict no immediate injury to persons or property but merely create the risk thereof, . . . carry relatively minor penalties, and . . . not cause grave damage to the reputation of the offender.”
But the harm in speech often arises not from positive aggression but at most from neglect, and speech is typically penalized not because it actually causes harm but because it risks it. The question then arises why
speech should not be able to trigger at least minor penalties because of its risks to the public welfare.
Lets have another example, similar to tortous musician. A police-procedural television show explains a sophisticated crime in sufficient technical detail to enable viewers to commit it. The governing regulatory authority fines the show’s producers for the two minutes of the episode that created this risk. In this example, the creators of the episode might not have apprehended the risk or might have acted reasonably toward it. And the producers of the show, who are the parties being fined, might not have been aware of the contents at all. Their product nevertheless creates a risk, no less than an adulterated drug or food. Similarly, the offense is not a product of positive aggression but at worst of neglect; it creates a risk rather than definitely generating harm; and it is punished by a regulatory sanction. Moreover, the Supreme Court has explained that public welfare offenses
became appropriate when “[w]ide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care." The Realistic Procedural is an example of the same problem in another mass-
distribution context. Yet no matter how strong the parallels, strict liability for the Realistic Procedural seems incorrect. The situation is not far removed from that of the Tortious Musician. It seems unfair to impose strict liability on those who produce or distribute speech because of a risk that inheres in the expression. Yet this conclusion is more cleanly and easily reached as a matter of free speech than a matter of criminal law. As Justice
Frankfurter said, in rejecting the regulatory-offense parallel for speech, “[T]here is an important difference in the scope of the power of a State to regulate what feeds the belly and what feeds the brain.”
On the tort side, tort law holds manufacturers strictly liable for products with manufacturing defects. If a chainsaw comes off the assembly line with a deviation from its intended design, and if the chainsaw injures someone by virtue of that defect, the manufacturer is strictly liable, even if it could not have eliminated the defect through the exercise of reasonable care.
BTW the examples are from cases where tupac wrote the lyrics to violence and the second is one is actually pretty messed up which i wont tell here. Pretty messed up!
The problems with these theories are that when applied, they have a vast impact. Lets come to another theory that has been often used in courts as well and this theory is defining the first amendment and from here i will talk about two other theories relating to first amendment which are bakers liberty theory and stuart mill market place of ideas. I am getting a bit sidetracked but all of this is important to understand what the terms
"Restrict free speech" and "Dont restrict free speech" means
The Chilling effect
The chilling effect is a major doctrine in free speech and has been created by the courts and employed as such. It was formed by the supreme court during the cold war era . The doctrine was based in cases where regulations were filed to restrict communist supporters.
In Baggett v. Bullitt (1964), the Court struck down loyalty oaths requiring Washington state employees to affirm that they were not members of alleged subversive organizations and requiring teachers to swear to promote “undivided allegiance to the government of the United States.”
In ruling that these provisions violated the First Amendment rights of employees, who would be unable to determine what they were swearing to, the Court asserted that “the threat of sanctions may deter . . . almost as potently as the actual application of sanctions.”
In Lamont v. Postmaster General (1965), the Court struck down a postal regulation requiring individuals who wished to receive communist literature to sign up at the post office. Although the program included no sanctions against recipients, the Court said it would chill individuals who wanted the material but were afraid to make their wishes known to the government. The chilling effect of such governmental requirements was exacerbated by widespread knowledge that under the guidance of Director J. Edgar Hoover the FBI had gathered dossiers recording the political beliefs and associations of millions of Americans suspected of “un-American” views and activities.
The chilling effect doctrine reached its zenith in Dombrowski v. Pfister (1965), a case involving the Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law, which the state was using to require civil rights groups to register as communist-front organizations.
In a groundbreaking opinion written by Justice William J. Brennan Jr., the Court ruled that not only was the Louisiana law unconstitutional, but that the federal courts could enjoin the state of Louisiana from bringing prosecutions under it.
The Court rejected the notion that injunctions were unavailable in situations involving criminal prosecution because defendants always had the right of appeal if convicted under unconstitutional statutes. Although an appeal might provide adequate protection for the rights of the criminal defendants, Brennan wrote that such an appeal would not protect the First Amendment rights of third parties who might be deterred from speaking out in the interim. The chilling effect, with these judgments had a major impact on free speech as it basically had a huge impact on the concept of free speech, as it said to every defamer that "we are letting you go because we dont want others to be discouraged in bringing their ideas. That for the largher impact, we are willing to tolerate some levels of falsity. This supreme court majority created a concept that was unheard of and whilst the new majority did the exact opposite to anti-war protestors in 1972, it did set a strong precedent.
The chilling effect is a free-speech principle that could explain why strict liability is inappropriate without making speaker’s intent intrinsic to speech protection. Speakers who face strict liability will stay silent when uncertain of the accuracy of their information. In this way, valuable true speech will be chilled. Intent requirements (such as actual malice) protect some low-value speech in order to provide “breathing space” for valuable speech. They are useful only in that regard. One problem with the chilling-effect rationale is its empirical uncertainty. It is difficult to measure chilling and possibly even more difficult to know how to fix it with the level of precision necessary to justify choosing one mental-state requirement over another, such as actual malice over fault. But the primary objection to the chilling effect is that it does not completely capture the intuition against strict liability. The chilling-effect account is about the deterrent effect that liability will have on future speakers. It is not about the justice or injustice of liability for the speaker at hand. If the chilling effect is the only free-speech argument against strict liability, then the intuition against strict liability for the Well-Meaning Defamer is not about the Well-Meaning Defamer at all.
The intuition instead is that the Well-Meaning Defamer deserves to be held liable, but the law will spare her for the sake of others who have true information to share. This approach essentially says to such speakers,
“You’re just lucky there are so many nice speakers out there who actuallydeserve protection. To keep from chilling them, we will tolerate you.”
This is not a complete account of the intuition in this case. Yes, strict liability might deter other speakers, and that might be a reason to reject it. But strict liability also seems incorrect because the speaker herself should not be penalized for making an innocent mistake while engaged in political discourse. Strict liability seems inappropriate not (or not only) because it will deter future speakers, but because it seems unfair to this one
Lets come to the First amendment theories
I will start with the Marketplace of ideas.
The marketplace of ideas refers to the belief that the test of the truth or acceptance of ideas depends on their competition with one another and not on the opinion of a censor, whether one provided by the government or by some other authority. This concept draws on an analogy to the economic marketplace, where, it is claimed, through economic competition superior products sell better than others. Thus, the economic marketplace uses competition to determine winners and losers, whereas the marketplace of ideas uses competition to judge truth and acceptability. This theory of speech therefore condemns censorship and encourages the free flow of ideas as a way of viewing the First Amendment. Mill argues against censorship and in favor of the free flow of ideas. Asserting that no one alone knows the truth, or that no one idea alone embodies either the truth or its antithesis, or that truth left untested will slip into dogma, Mill claims that the free competition of ideas is the best way to separate falsehoods from fact. The first reference to the marketplace of ideas was by Justice Oliver Wendell Holmes Jr. in Abrams v. United States (1919). Dissenting from a majority ruling that upheld the prosecution of an anarchist for his anti-war views under the Espionage Act of 1917, Holmes stated: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
Then we go into Bakers Free liberty concept and his disagreement with Stuart mill. Bakers theory would play a massive role in the autonomous theory.
Law professor C. Edwin Baker developed the “liberty model” of the First Amendment as an alternative to the model of the “marketplace of ideas,” which the Supreme Court has often cited in its decisions. Baker (1989) believes that the marketplace model, which he largely traces to John Stuart Mill’s On Liberty, is unpersuasive because it rests on unproven ideas that truth is objective and discoverable, that people are basically rational, and that this rationality would enable individuals to judge such truths. Baker similarly rejects the idea that the First Amendment was primarily designed to protect “political speech”; indeed, he argues that this is simply an attempt to adapt the marketplace of ideas approach to the political arena.Baker says that in his liberty model, “Speech or other self expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual. Baker describes his model as embracing the idea “that the First Amendment protects a broad realm of nonviolent, noncoercive, expressive activity”. He believes such nonviolent, noncoercive speech serves two primary values, namely, “self-fulfillment” and “self-realization”. Democracies properly promote policies that promote “equal respect for persons as autonomous agents” Baker also brought forth thrtee restrictions to free speech but held that despite his monotist views, he found foundationalists to have protected the first amendment absolutism.
With this you guys actually get how complicated this subject is. Free speech has many jurists and judges scratching their heads because there needs to be a limit but that limit is then abused through political actions. Bhutto brought forth intent into Article 19, restricting the actions of the limitations in Article 19 but then immediately abused it to target NAP for treasonous activity. There are a bunch of landmark judgments on them like when bhutto talked about how, if the SC removed the restrictions he has placed on NAP then what happens, shouldnt be blamed on Bhutto. The court talked about liability and intent.
Coming to the two questions
Should Free Speech be restrictive?
Are freedoms inversely proportional to security of the state?
and perhaps a third question
Should corporate platforms, which have made free speech the roaring beast, it is now, should they be allowed to decide what free speech should be?
To the first question, yes there should be restriction and after all i have written above, we cant have unrestrictive free speech since again, its free speech and not free political speech, and the ideals of miller focused more on political concepts rather than on the speech at large where as baker brought forth a whole new concept that first amendment is for all speeches and if it is so and bakers theory of liberty is correct then it becomes even more imperative to include elements into the first amendment. We have restrictions in the first amendment and then we have chill effect and miller test to determine protection of speech. So before we even begin to lecture a country on free speech, we need to understand what we are saying when we say free speech.
Second question which is of
@Kaptaan can be answered very simply that yes and you see this in constitutions themselves. The elements which allow for emergency to be placed are the very basis of this concept that when security situation is in questions, fundamental rights decrease and you see this with war time doctrines like Actions in aid to civil power act or the Armed forces special powers act (Former for Pakistan and latter for India). War time legislation is the very foundation of the concept that during security situation of states, fundamental rights can be curtailed. The interning of German and Japanese by the Us in WW2 is also evidence of this. Next sub question that we need to ask is
what is security sitation? ?Is a man in baluchistan speaking to the mountain that pakistan should be dismembered a security situation? or terrorism in FATA? Is the current president telling his supporters to cross capitol hill and bring the ballots a security situation or do we need world war 2?
This can only be answered by the courts, state and the people in how secure they feel the structure and governance of the state is i.e the element of "We the People" in the security of the state. If the government and state is insecure, then it will consider any and all to be a threat. China is a great example of this. So the security threat to the state is measured in the assured status of the state itself and how the government in power perceives its existence.
The breach of capitol hill, on this i wrote before and if i were to reproduce that then maybe i can explain my point better.
""""""
The external charisma is the most dangerous form of the charismatic leadership which can drive the leadership to actions that can be detrimental to the republic at Large. That is not the say that in such a scenario the charismatic leadership is aware of the detriment but is helpless. It is to mean that the the external charisma fuels the charisma of the charismatic leadership emboldening him to take steps and make decisions that could very well be detrimental. Would trump have given that speech had there been no external charisma. No he would not have but the presence of such emboldened him and what if they had succeeded. What If the capitol had called and the envelopes destroyed. What his speech would have been then? And of course even his @Indrajit Gupta puts it, german general surrender speech, held elements of the external charisma. I do not think this will stop so easily and as long as he feels that power, he will take steps. Today they came armed only with mace and paramilitary protective gear. Tomorrow they may come with more, emboldened by their success today for it was a success of a sort for Something that had not happened in US history happened. The capitol fell to the people. Once upon a time it was considered highly improper and downright threatening for a president to go into the Congress and declare
"I have the mandate of the people"
And today a president is telling the people to storm the Congress. Some mores and actions are considered impossible only because nobody has undertaken them. In pakistan the the coup was not in 1956 but in 1950 when akbar khan tried and failed. You see he tried. He showed that military can take action and can think about removing the legitimate government. His action changed the very thinking of the officer class which was, at that time, still under the influence of the british army's non-politics. He failed and got tried and punishments handed out but something was displayed. That it could happen so in 1956 a coup happens.
We can utilize the same here. It was considered impossible and outright radical to even consider storming the capitol but it was stormed. Yes they were pushed back and peace restored but it happened and tomorrow it may happen again and again until it succeeds."""""""""""
So with this we can perceive that for the US this was a major major incident unheard of in its history and they are trying to make an example out of anybody that clashes with the state and anybody that dares to stand against it since you see, a president, still in power, did this. This is major disorder at the highest of levels especially if we consider the relationship between congress and president.
So to the last question, well many would argue that the domains are personal spaces and thus they can take such actions but here is where we stand at unknown and unchartered territory. Private domains that allow you to speak to the world. Where would free speech concept come here. Bruce ackerman held that it is the highest of folly that current jurists are suffering from, that they focus on the concepts of the past in a manner as if we have reached the pinnacle of constitutional thought whereas it is our duty that we continue to study and bring forth new ideals to expand our freedoms and thoughts to better evolve constitutionalism. What worked in 1800, will not work in 1900 and what worked in 2000 will not work in 2020 and what works in 2020 will not work in 2100. So we must keep looking outside the box rather than chain ourself to the thoughts of within. I believe that these domains must work within the constitutional framework rather than on their own rules and regulations and penalized as such. So the question, in this humble theory would be, whether Trump's speech earned the right of protection or not? is it eligible for chill or not?
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