WEBVTT - How Free Speech Works 0:00:01.200 --> 0:00:04.640 Welcome to Stuff you Should Know from house stuff Works 0:00:04.680 --> 0:00:13.760 dot com. Hey you, welcome to the podcast. I'm Josh Clark, 0:00:13.880 --> 0:00:17.119 There's Charles w Chuck Bryant, There's Jerry. The papers have 0:00:17.160 --> 0:00:21.080 been shuffled, their plumb and true. It's time for Stuff 0:00:21.120 --> 0:00:23.680 you Should Know the podcast. You know it's not plumb 0:00:23.680 --> 0:00:29.600 and true. My gut. Anything in my house I went to, Uh, 0:00:30.280 --> 0:00:34.760 all of my house had those gross, cheap, hollow gore 0:00:34.880 --> 0:00:40.280 doors you know. Oh yeah, you know they're not doors. 0:00:40.360 --> 0:00:43.360 I mean they function as doors. If there's air in 0:00:43.400 --> 0:00:46.080 your door, then it's not a door. So one by 0:00:46.120 --> 0:00:49.040 one I've been replacing them with wood, solid doors. And 0:00:49.080 --> 0:00:50.760 I went and did that for our bedroom, and man, 0:00:50.840 --> 0:00:54.720 oh man, was it frustrating. Oh hanging them because they 0:00:54.800 --> 0:00:58.160 didn't want to hang. It's the worst, like nothing straight, like, oh, 0:00:58.200 --> 0:01:00.920 that looks good, and then it goes to shutting like whack. Well, 0:01:00.960 --> 0:01:03.920 I'm sure it was straight, you know, a hundred years ago, 0:01:04.959 --> 0:01:07.120 you know, and then over time the house settled in 0:01:07.200 --> 0:01:09.640 and now it's it's doing its own thing. So I 0:01:09.680 --> 0:01:11.600 had to shave the door in so many places. It 0:01:11.600 --> 0:01:14.880 looks like a doctor seue store. Oh cool, you should 0:01:14.880 --> 0:01:17.600 plant one of those weird doctor Seue's palm trees in 0:01:17.640 --> 0:01:21.880 your yard. To really complete it, it's called marijuana. So 0:01:22.600 --> 0:01:25.240 I'm glad you just said marijuana, chuck, because you have 0:01:25.360 --> 0:01:28.479 every right to say the word marijuana in this country. 0:01:28.760 --> 0:01:31.440 It's a free country. You can say the name of 0:01:31.440 --> 0:01:34.840 a plant, you know, people, people do say and have 0:01:35.000 --> 0:01:38.600 long said, this is a free country. I can say 0:01:38.600 --> 0:01:42.480 whatever I want. And free speech is one of the 0:01:42.520 --> 0:01:50.400 basic hallmarks of what makes America free country. Freedom of speech. Um. 0:01:50.480 --> 0:01:54.240 But America is not the only country that enshrines a 0:01:54.320 --> 0:01:58.560 freedom of speech protection and it's charter. Yeah, there are 0:01:58.640 --> 0:02:02.440 varying degrees of it in many many countries. In some 0:02:02.520 --> 0:02:06.320 countries there's not very much. In other countries, there's a lot. 0:02:06.920 --> 0:02:11.160 In the US is arguably one of the leaders, although 0:02:11.320 --> 0:02:14.119 some people point to Europe's and we'll talk about those later. 0:02:14.400 --> 0:02:19.160 But some people point to Europe's free speech protections and say, there, 0:02:19.400 --> 0:02:23.080 those people know what they're doing. Um. In the US, 0:02:23.120 --> 0:02:27.280 if you look at free speech, you go to the 0:02:27.320 --> 0:02:31.040 Bill of Rights. Typically it's a great place to start, 0:02:31.360 --> 0:02:34.560 and you will find you will find in the First 0:02:34.560 --> 0:02:38.880 Amendment of the Constitution, which is the first part of 0:02:38.880 --> 0:02:42.600 the Bill of Rights. It says in there specifically that 0:02:42.760 --> 0:02:50.280 Congress will make no law right abridging the freedom of speech. 0:02:51.000 --> 0:02:53.800 It's as simple as that. It doesn't say unless speech 0:02:53.880 --> 0:02:57.840 says this, unless somebody says that, unless you really don't 0:02:57.880 --> 0:03:02.959 like the guy there is no. It's absolute. It's an 0:03:03.000 --> 0:03:06.320 absolute protection of freedom of speech. Yeah, and that goes on. 0:03:06.639 --> 0:03:10.880 I think, Uh, it's pertinent to mention abridging the freedom 0:03:10.919 --> 0:03:15.200 of speech or of the press, or the right of 0:03:15.240 --> 0:03:20.200 the people to peaceably to assemble founding Father JFK and 0:03:20.280 --> 0:03:24.440 to petition the government for a redress of grievances. I'm 0:03:24.440 --> 0:03:27.440 sorry that on those, Ted Kennedy, because we're all very important, 0:03:27.440 --> 0:03:30.440 you know, sure they are, Oh yeah, right to a symbol, 0:03:30.520 --> 0:03:33.160 it's a pretty important one. Well yeah, And because we 0:03:33.200 --> 0:03:39.000 had just left the country, uh one independence from Britain, 0:03:39.480 --> 0:03:42.920 who at the time was like no, no, no no, we 0:03:42.920 --> 0:03:46.920 we very much want to squash any dissenting opinions about 0:03:47.000 --> 0:03:50.760 the ground. Uh. And people are getting thrown in jail 0:03:50.880 --> 0:03:53.560 for that kind of stuff in the colonies. They were 0:03:53.560 --> 0:03:57.640 trying to quash a rebellion, and that's a pretty important 0:03:57.680 --> 0:04:00.160 part of it. If you're if you're a monarchy, an 0:04:00.200 --> 0:04:04.960 absolute monarchy that wants to keep the rebels in check. 0:04:06.720 --> 0:04:09.400 You just say you can't say certain things, and if 0:04:09.400 --> 0:04:10.880 you do, we're going to throw you in jail. It 0:04:10.920 --> 0:04:13.600 has a freezing effect. Yeah, or they're weird punishments, like 0:04:13.600 --> 0:04:15.880 when they said stick a sock in it. They went, yeah, okay, 0:04:15.960 --> 0:04:17.800 and they went no, really, stick a sock in it 0:04:18.520 --> 0:04:22.240 by law for eight months and tape it, tape it shut. 0:04:22.640 --> 0:04:27.200 With my dirty sock in your mouth, my dirty sock, 0:04:27.560 --> 0:04:31.800 my wool sock from my wet boots. Um. Quickly though, 0:04:31.839 --> 0:04:34.520 I think we should point out that as we were 0:04:34.560 --> 0:04:37.280 going through this, like I realized you could have an 0:04:37.400 --> 0:04:41.160 entire podcast called the Ins and Outs of Free Speech. Yeah, 0:04:41.240 --> 0:04:43.080 like a series, a whole show. You have a whole 0:04:43.080 --> 0:04:45.440 show about it, not just an episode. So this is 0:04:45.560 --> 0:04:48.599 you know, this is an overview as we do that 0:04:48.800 --> 0:04:52.040 is going to pick and you know, talk about various 0:04:52.080 --> 0:04:56.120 court cases over the years, rulings and writings of judges, 0:04:56.839 --> 0:05:00.839 um That are pertinent. But man, it's deep and wide. Yeah, 0:05:00.880 --> 0:05:05.039 it is, especially considering that again, when you go to 0:05:05.080 --> 0:05:07.640 the Bill of Rights, it just says Congress can't pass 0:05:07.680 --> 0:05:12.120 any laws that abridge the freedom of speech. They're like, 0:05:12.120 --> 0:05:16.520 why does he keep writing right there? And chuck. Not 0:05:16.640 --> 0:05:22.440 only though, was it this in retaliation reaction to um, 0:05:22.560 --> 0:05:25.880 the British monarchy. It was also a big part of 0:05:26.080 --> 0:05:29.760 Enlightenment thinking as well. The protection of freedom of speech 0:05:29.839 --> 0:05:33.440 was a huge aspect of the Enlightenment. And you know, 0:05:33.520 --> 0:05:37.080 obviously the United States was founded during the Enlightenment and 0:05:37.400 --> 0:05:41.760 in as part of the Enlightenment. It was an Enlightenment experiment, right, Yeah, 0:05:41.800 --> 0:05:46.360 like we don't want to restrict thought or expression. Um. 0:05:46.400 --> 0:05:48.600 And you know, some might say that if if the 0:05:49.080 --> 0:05:54.800 Britain hadn't been so intent on squashing dissenting opinion, then 0:05:54.839 --> 0:06:00.000 we might not have been so Enlightenment aside, so uh, 0:06:00.240 --> 0:06:03.600 heck bent on ensuring those rights. So maybe it all 0:06:03.600 --> 0:06:05.839 worked out for the best. Yeah, I think so, And 0:06:06.000 --> 0:06:09.000 Britain came around. Right. You can still get a sock 0:06:09.080 --> 0:06:11.120 thrown in your mouth, can you? I don't know, man, 0:06:11.880 --> 0:06:13.640 it's on the book still. I just don't know if 0:06:13.640 --> 0:06:16.280 they do it anymore. This socks are much nicer now, 0:06:16.560 --> 0:06:19.680 that's right. They're a happy socks. So since you have 0:06:19.760 --> 0:06:23.920 this very broad um protection of freedom of speech, right, 0:06:25.000 --> 0:06:27.400 but then there's nothing more to be said about anybody 0:06:27.440 --> 0:06:30.599 can say anything they want. Not quite true. It isn't 0:06:30.680 --> 0:06:34.039 true because we have three branches of government here in 0:06:34.360 --> 0:06:37.600 the US. We do. Yeah, it turns out I thought 0:06:37.600 --> 0:06:41.640 that was just one. You got the executive branch, which 0:06:41.640 --> 0:06:44.039 is the one I think you're thinking. Uh. Then you 0:06:44.080 --> 0:06:49.159 have the legislative branch Congress, okay, which is actually separate. 0:06:49.520 --> 0:06:53.400 And then you have the third branch, the judicial branch. Yes, 0:06:53.440 --> 0:06:57.400 they are equal and important branch. And with um the 0:06:57.480 --> 0:07:02.400 congressional the legislative branch. They pass laws, people go out 0:07:02.440 --> 0:07:08.520 and break laws, People get convicted, people appeal their convictions, 0:07:09.160 --> 0:07:14.440 and in some cases those convictions and the laws are 0:07:14.640 --> 0:07:18.720 questionable enough or interesting enough that it will eventually make 0:07:18.760 --> 0:07:21.840 it to a high enough court that the court will 0:07:21.960 --> 0:07:25.560 rule on whether or not that law holds up to 0:07:25.760 --> 0:07:32.000 any constitutional standard. Over time, freedom of speech has been 0:07:32.040 --> 0:07:36.280 shaped and expanded and paired away, um by the courts 0:07:36.320 --> 0:07:39.280 here in the United States. Yeah. Like maybe more so 0:07:39.360 --> 0:07:43.120 than any other kind of segment of law, or maybe not. 0:07:43.360 --> 0:07:49.160 But I'm gonna just as as an complete um armchair attorney, 0:07:49.880 --> 0:07:54.360 I'm gonna say that perhaps free speeches has been challenge 0:07:54.440 --> 0:07:59.280 more and whittled down and defined more than maybe any 0:07:59.280 --> 0:08:02.640 other aspect of law. Yeah, because one of the big 0:08:02.680 --> 0:08:05.240 things that the courts did with freedom of speech was 0:08:05.280 --> 0:08:08.560 to really expand the definition of speech. Yeah, it's not 0:08:08.600 --> 0:08:11.600 just words that come out of your mouth or even right. No, 0:08:11.800 --> 0:08:14.840 Like it can be a T shirt that says f 0:08:15.040 --> 0:08:20.200 the police, or could say um, um uh yeah, hug 0:08:20.280 --> 0:08:23.760 the police. Sure, somebody might find that offensive. Who knows, 0:08:23.800 --> 0:08:26.360 thank you for coming to my rescue this thing. It 0:08:26.440 --> 0:08:30.160 could be a billboard, it could be um, it could 0:08:30.160 --> 0:08:32.520 be a pamphlet you hand out, it could be an act, 0:08:32.800 --> 0:08:35.600 symbolic act, flag burning, that was a big one, remember 0:08:35.600 --> 0:08:38.440 that in the eighties. Absolutely or or refusing to say 0:08:38.440 --> 0:08:41.559 the pledge allegiance that was in the I think World 0:08:41.559 --> 0:08:45.720 War two, Yeah, which is actually now protected as because 0:08:45.720 --> 0:08:49.600 free speech can also mean the freedom to not speech. Yeah, 0:08:49.679 --> 0:08:53.120 because up until I think in the Supreme Court ruled 0:08:53.120 --> 0:08:57.000 on kids were being forced to say the pledge whether 0:08:57.000 --> 0:08:59.640 they wanted to or not. In the Supreme couiside, no, 0:09:00.200 --> 0:09:04.439 we think freedom of speech is really freedom of expression. 0:09:04.840 --> 0:09:06.640 And if you don't feel like saying the pledge, you're 0:09:06.840 --> 0:09:09.280 free to express yourself in that way. Yeah. And as 0:09:09.320 --> 0:09:13.480 you'll find Um. Throughout the show will kind of probably 0:09:13.480 --> 0:09:17.480 say this over and over. Freedom of speech doesn't have 0:09:17.559 --> 0:09:21.600 a lot to do with something you might find offensive 0:09:21.679 --> 0:09:26.959 or repugnant. Um. Generally, the US has sided on protecting 0:09:27.000 --> 0:09:29.719 that right regardless of whether or not you're offended or 0:09:29.760 --> 0:09:32.240 you think it's awful. And that's kind of what makes 0:09:32.280 --> 0:09:35.600 America great in a lot of ways, is you know what, 0:09:35.800 --> 0:09:39.320 who are we to decide what ud you know, to 0:09:39.400 --> 0:09:42.360 legislate morality essentially and what we'll get into all this 0:09:42.480 --> 0:09:46.040 with obscenity and all that stuff and pornography. But um, 0:09:46.120 --> 0:09:48.080 even when it comes to like, you know, I don't 0:09:48.080 --> 0:09:51.680 want to say the pledge because of this reason, the 0:09:51.720 --> 0:09:53.440 courts have said, you know what, that that you're right, 0:09:53.520 --> 0:09:56.160 this is America. We may not like it, but that 0:09:56.240 --> 0:09:58.920 you're right. Yeah. And the whole reason behind this too, 0:09:58.920 --> 0:10:01.240 it's it's easy to just take it for granted, especially 0:10:01.280 --> 0:10:04.720 if you were raised in the United States, that you 0:10:04.800 --> 0:10:07.679 have that right. Who cares what the basis of it is. 0:10:08.000 --> 0:10:11.320 You can say basically whatever you want, you know, Um, 0:10:11.360 --> 0:10:14.400 But when you really dig into why the founders sought 0:10:14.440 --> 0:10:17.600 to protect this and why it's been upheld and defended 0:10:17.920 --> 0:10:22.320 so much, over the years. Is because the idea is 0:10:22.360 --> 0:10:25.040 that if you are free to speak your mind without 0:10:25.200 --> 0:10:28.120 fear of being put in jail or killed or beaten 0:10:28.160 --> 0:10:33.000 by a mob, um, that you are going to introduce 0:10:33.040 --> 0:10:36.400 new ideas to the marketplace of ideas. And through this 0:10:36.679 --> 0:10:39.160 you're gonna have an exchange with other people, and a 0:10:39.160 --> 0:10:41.079 lot of times it's going to be contentious and it's 0:10:41.080 --> 0:10:44.800 going to be ugly, but over time things can evolve 0:10:44.880 --> 0:10:47.960 and get better and change for the better through this 0:10:48.080 --> 0:10:52.520 exchange of ideas. And to ensure that the engine of 0:10:52.679 --> 0:10:57.320 cultural evolution continues unabated, you have to have the free 0:10:57.320 --> 0:10:59.720 exchange of ideas. And to have the free exchange of ideas, 0:10:59.840 --> 0:11:03.200 you have to have protection of free speech. Yeah, because 0:11:03.200 --> 0:11:06.360 if not, you have the government being the one saying, well, no, 0:11:06.520 --> 0:11:09.920 here are all the ideas right exactly, and um, don't 0:11:09.960 --> 0:11:12.160 worry about having any of your own. Yeah, these are these, 0:11:12.200 --> 0:11:14.320 these are the ones. Yeah. And in a lot of cases, 0:11:14.400 --> 0:11:18.280 those things can come across as really great ideas. UM. 0:11:18.360 --> 0:11:22.760 Here in the US, up until the UH, I think 0:11:22.800 --> 0:11:27.160 the mid fifties or early sixties, there were laws on 0:11:27.240 --> 0:11:30.560 the books where it said you can't you can't speak 0:11:30.600 --> 0:11:34.880 ill of groups like you can't say anything about um, 0:11:35.200 --> 0:11:40.160 Jewish people or Muslim people or any group. You can't 0:11:40.200 --> 0:11:44.040 say these things. It's speech was not protected rights. It 0:11:44.120 --> 0:11:48.280 was called group libel. And that actually sounds pretty good 0:11:48.480 --> 0:11:50.480 in a lot of in a lot of senses, like, yeah, 0:11:50.480 --> 0:11:53.120 we shouldn't be talking trash about entire groups of people, 0:11:53.160 --> 0:11:56.440 because it does it can lead to two problems. But 0:11:57.000 --> 0:12:01.800 that same prohibition on speech came to be exploited by 0:12:01.880 --> 0:12:06.040 white Southerners who were in power in the fifties, who said, 0:12:06.360 --> 0:12:10.480 Martin Luther King, he's trying to incite violent social change 0:12:10.520 --> 0:12:15.559 with his his radical ideas. Somebody needs to uh put 0:12:15.800 --> 0:12:18.319 a duct tape over that guy's mouth, stick a sock 0:12:18.400 --> 0:12:20.040 in it. He doesn't have the freedom to say this. 0:12:20.200 --> 0:12:24.840 And actually, our right to say hateful things about other 0:12:24.880 --> 0:12:28.240 people was a direct result in the United States of 0:12:28.280 --> 0:12:33.040 the Civil rights movement UM being protected by the courts 0:12:33.160 --> 0:12:38.319 against white Southerners who sought to UM to uh squash 0:12:38.760 --> 0:12:43.800 their their speech. So hate speech, yeah, is due in 0:12:43.920 --> 0:12:48.160 part in part to Dr Martin Luther King and and 0:12:48.200 --> 0:12:51.760 trying to advance civil rights. In a weird turn of events, Yeah, 0:12:51.800 --> 0:12:53.880 it really was. Uh. And in Europe, and we'll talk 0:12:53.920 --> 0:12:57.120 about this a little more. Um. Like you said, some 0:12:57.160 --> 0:13:01.120 people say they have nailed it. They don't protect hate speech, 0:13:01.240 --> 0:13:05.240 and you can't be uh, you can't deny the Holocaust publicly, 0:13:05.760 --> 0:13:10.520 and you can't um say, you know Jewish people, you 0:13:10.559 --> 0:13:13.079 know x y z or this group of people are 0:13:13.120 --> 0:13:16.880 like this. Um. Some people say that's you know, that's 0:13:16.920 --> 0:13:19.160 kind of right on the money. We have taken a 0:13:19.160 --> 0:13:21.440 different tech here in the US. Right in Europe does 0:13:21.480 --> 0:13:25.080 that because they have a pretty recent example of what 0:13:25.160 --> 0:13:27.720 can happen if you do have freedom of speech, and 0:13:27.720 --> 0:13:32.360 that totalitarian government can hijack that freedom of speech and 0:13:32.440 --> 0:13:35.760 use it as propaganda to incite hatred amongst an entire 0:13:35.840 --> 0:13:40.880 population um or even as as um this this one 0:13:40.880 --> 0:13:44.800 author put it to prepare them for extermination, just basically 0:13:44.840 --> 0:13:48.000 saying like, hey, everybody, get those guys. There are the 0:13:48.000 --> 0:13:51.400 reasons you don't have jobs. They're the rapists. They're the 0:13:51.520 --> 0:13:53.840 people who are who are going to kill you and 0:13:53.960 --> 0:13:57.960 steal your your family's wealth and well being. So get 0:13:58.040 --> 0:14:00.760 rid of them. Turn on them. And that's the whole 0:14:00.800 --> 0:14:06.480 point of saying, nobody can incite hatred through speech. In 0:14:06.800 --> 0:14:11.400 its these European democracies. Um, because the state has done 0:14:11.400 --> 0:14:16.479 it before. Yeah, and we all see what happened there. Um, 0:14:16.559 --> 0:14:17.920 should we take a break. I feel like that's a 0:14:17.920 --> 0:14:24.000 good intro, broad, all encompassing, passionate, all encompassingly. All right, Well, 0:14:24.040 --> 0:14:25.440 we'll come back here in a minute and get down 0:14:25.480 --> 0:14:48.960 to the nitty gritty of some of these court cases. Okay, 0:14:49.200 --> 0:14:55.960 sk alright, trend um. So if you want to go 0:14:56.000 --> 0:15:02.160 back a little bit to Justice Oliver Wendell Holmes, Jr. 0:15:01.600 --> 0:15:08.080 Son of one of the famous Justices the United States. Uh, 0:15:08.880 --> 0:15:11.640 in a lot of ways, but very specifically because everyone 0:15:12.000 --> 0:15:15.760 has sort of heard the the old thing that, Um, 0:15:15.800 --> 0:15:20.040 you can't yell fire in a movie theater and say 0:15:20.080 --> 0:15:23.560 that's free speech, because that will in the case of 0:15:23.960 --> 0:15:28.840 in the nineteen nineteen case Shink the United States, UM, 0:15:29.000 --> 0:15:34.600 Charles Schenk was arrested for distributing material basically that said, hey, um, 0:15:34.840 --> 0:15:39.600 don't the the US draft military draft is bs um, 0:15:39.720 --> 0:15:43.080 don't do it. Fight against it. Uh. And they said, 0:15:43.120 --> 0:15:46.920 you know what, that's that's espionage actually, And that went 0:15:46.960 --> 0:15:48.720 all the way to Supreme Court, and they did not 0:15:48.800 --> 0:15:51.800 protect that right because, in the words of Oliver one 0:15:51.880 --> 0:15:54.640 to Holmes, they said, did the words create a clear 0:15:54.680 --> 0:15:58.080 and present danger that they will bring about substantive evils? 0:15:58.120 --> 0:16:00.640 Congress has a right to prevent and that sort of 0:16:00.680 --> 0:16:02.920 in line. And later on in the same ruling, is 0:16:02.920 --> 0:16:05.720 talking about yelling fire in a theater as an example, like, 0:16:05.960 --> 0:16:07.280 you know, you can't do that because I don't in 0:16:07.320 --> 0:16:09.640 sight panic if people get stomped. Right, And and in 0:16:09.680 --> 0:16:12.600 this case this kind of set the precedent for or 0:16:12.640 --> 0:16:17.560 the tone for all free speech cases to follow. Um 0:16:17.880 --> 0:16:21.800 is weighing the the individual right versus the public good 0:16:22.680 --> 0:16:27.880 or in this case, the individual right versus UM creating 0:16:27.960 --> 0:16:31.400 some problem or evil. As he put it, that Congress 0:16:31.440 --> 0:16:34.920 has a right and an interest to prevent a danger 0:16:34.960 --> 0:16:39.040 to the country, right. UM. In this case, really what 0:16:39.080 --> 0:16:42.280 they were saying was they were suppressing criticism of a 0:16:42.440 --> 0:16:48.440 government program, the Draft. Um. And then but Holmes was 0:16:48.480 --> 0:16:51.680 fine with that. But within a year I think he 0:16:51.800 --> 0:16:55.520 saw his UM his test, you know, does it present 0:16:55.520 --> 0:16:59.200 a clear and present danger being used in a way 0:16:59.280 --> 0:17:02.320 just to squaw dissent when a bunch of anarchists who 0:17:02.320 --> 0:17:06.800 were just generally advocating the overthrow of the government. Um, 0:17:06.920 --> 0:17:09.880 rather than need to do this on this date at 0:17:09.920 --> 0:17:15.160 this time, Um, they were used, they were convicted under 0:17:15.280 --> 0:17:18.119 the test that Homes created. So he took what was 0:17:18.160 --> 0:17:21.479 called the Great Dissent and actually dissented against his own 0:17:21.920 --> 0:17:25.280 former test and said, no, it has to present a 0:17:25.280 --> 0:17:28.119 clear and present danger, present meaning like it's about to 0:17:28.160 --> 0:17:30.879 happen or you know the time that it's going to happen, 0:17:31.160 --> 0:17:33.960 and it's a clear danger, like this is what's going 0:17:34.040 --> 0:17:37.879 to happen. Because this person said that, So that that 0:17:38.119 --> 0:17:42.480 ultimately became the format for um what we'll talk about 0:17:42.520 --> 0:17:46.160 in a little bit, which is inciting violence. Yeah, and 0:17:46.240 --> 0:17:48.720 that's not to say that, um like the ruling there, 0:17:48.760 --> 0:17:50.800 like you said, was about a clear and present danger, 0:17:50.880 --> 0:17:54.240 not necessarily the fact that Charles Schenk was against the war, 0:17:54.800 --> 0:17:56.520 because we have a long history in this country of 0:17:56.600 --> 0:18:00.640 being able to uh be a wartime dissenter and talk 0:18:00.680 --> 0:18:03.800 about it and be protected. Um. During Vietnam War, there 0:18:03.800 --> 0:18:05.800 was a man who had he went to an l 0:18:05.800 --> 0:18:08.080 A courthouse and he had a jacket that said, you know, 0:18:08.320 --> 0:18:12.240 F the draft, but it was really spelled out, it's 0:18:12.280 --> 0:18:15.360 so ironic that we're censoring ourselves in this one. But 0:18:17.359 --> 0:18:20.119 uh F the draft and they um, as you will 0:18:20.160 --> 0:18:23.520 always almost always see here. These people are, like you said, 0:18:23.600 --> 0:18:28.760 usually arrested, convicted, and then that's when they're well, maybe hippies, 0:18:28.920 --> 0:18:31.600 you never know. And then that's when the courts take 0:18:31.640 --> 0:18:34.520 it up and potentially either protect or don't protect the speech. 0:18:35.040 --> 0:18:37.240 In this case, the court said, no, you're within your 0:18:37.280 --> 0:18:41.320 right because someone could see your jacket and then not 0:18:41.400 --> 0:18:43.639 look at it, right, And that's a good point. Like 0:18:43.720 --> 0:18:46.399 you you can just look away from the guy's jacket, right. 0:18:46.680 --> 0:18:49.600 You can also not take the pamphlet that the guy's 0:18:49.680 --> 0:18:53.280 handing you. You can also you can also not rent 0:18:53.320 --> 0:18:56.280 the movie that um that you find offensive. You can 0:18:56.320 --> 0:18:58.680 also turn the TV station. You can also turn the 0:18:58.800 --> 0:19:01.200 radio down. You can also not go to the website. 0:19:01.280 --> 0:19:04.000 You can turn our podcast off. To me, well, you shouldn't, 0:19:04.119 --> 0:19:09.120 so you could. To me, the alternative of not not 0:19:09.400 --> 0:19:14.040 receiving some speech that you find offensive like being able 0:19:14.080 --> 0:19:16.199 to get away from it. That to me is the 0:19:16.320 --> 0:19:20.600 ultimate test for for whether speech should be restricted or not. 0:19:20.920 --> 0:19:24.680 And since you can in virtually any situation get away 0:19:24.680 --> 0:19:29.920 from speech except maybe skywriting, we should probably really regulate 0:19:29.960 --> 0:19:32.600 sky riding pretty pretty toughly. You can look down at 0:19:32.600 --> 0:19:34.879 the ground, but I guess you could. Yeah, so as 0:19:34.960 --> 0:19:37.600 long as you can get away from it, or more 0:19:37.640 --> 0:19:40.720 to the point, shear shield your children from it. I 0:19:40.760 --> 0:19:43.720 don't think it should be. I don't see any reason 0:19:43.760 --> 0:19:48.800 for it to be um entailed for skywriting. You would 0:19:48.800 --> 0:19:50.919 have to argue in court that it is such a 0:19:50.960 --> 0:19:54.199 delight to children that they can't help but look like 0:19:54.280 --> 0:19:57.160 you would have to physically restrain them and put blinders 0:19:57.160 --> 0:19:59.840 on them, exactly, and that's unreasonable, your honor right. You 0:20:00.080 --> 0:20:02.280 write a curse word and then do a drawing a barney, 0:20:02.320 --> 0:20:05.440 and that would satisfy that is Barney still a thing? 0:20:06.280 --> 0:20:08.480 So I think barney will always be a thing. I 0:20:08.480 --> 0:20:11.479 don't know. Uh So. Over the years have been, like 0:20:11.560 --> 0:20:14.400 we said, a lot of court cases that have kind 0:20:14.400 --> 0:20:17.520 of whittled away and defined not whittled away, you know, 0:20:17.720 --> 0:20:23.160 because that molded shaped, molded and shaped. Uh So. Marvin 0:20:23.440 --> 0:20:27.639 Old Marv ran an adult book business, and he what 0:20:27.760 --> 0:20:30.760 he did was he sent out mailer's. He liked to 0:20:30.760 --> 0:20:34.440 send out a mailer right, and um these mailers would 0:20:34.440 --> 0:20:37.000 show up at houses where you know, something, my kid 0:20:37.119 --> 0:20:39.840 might read it, or someone easily offended might read it, 0:20:40.320 --> 0:20:43.159 or not so easily offended might read it. Uh. And 0:20:43.200 --> 0:20:47.440 there was a mom who uh this was her adult son. Yeah, 0:20:47.440 --> 0:20:49.439 it was a mom and her grown son who's the 0:20:49.480 --> 0:20:53.320 manager of I guess the family restaurant. And they childlike 0:20:53.920 --> 0:20:58.320 maybe he was his eyes were burning. Um, I don't know, 0:20:58.359 --> 0:21:00.960 maybe his mom was just just treated him like a kid. 0:21:00.960 --> 0:21:03.520 Who knows. But they said, you know what, you know, 0:21:04.359 --> 0:21:07.440 this guy shouldn't be mailing these randomly to just whoever. 0:21:07.600 --> 0:21:09.880 We certainly don't want it, so we're gonna call and complaint. 0:21:10.560 --> 0:21:14.480 And Marvin Miller ended up getting arrested for um obscenity. 0:21:15.359 --> 0:21:17.159 And this is a huge This turned out to be 0:21:17.200 --> 0:21:18.840 a huge case. Yeah, and went all the way to 0:21:18.880 --> 0:21:22.600 the Supreme Court, and um, yeah, it was. It was 0:21:22.800 --> 0:21:27.960 what you call a um, what do you call that? Landmark? 0:21:28.640 --> 0:21:33.080 Landmark watershed? Watershed. I couldn't think of it. I was like, 0:21:33.119 --> 0:21:35.800 we did a podcast on it recently. It's an Indigo 0:21:35.840 --> 0:21:40.719 Girls song. That's right. It was a watershed case. Miller v. California, 0:21:40.800 --> 0:21:42.920 And I'm gonna say V instead of versus. I think 0:21:42.920 --> 0:21:45.720 we've talked about that before, right, Um, it makes you 0:21:45.760 --> 0:21:51.040 sound more legal easy, yeah, and everyone likes being legal eazy. Uh. 0:21:51.080 --> 0:21:53.200 In nineteen seventy three. Like I said, the Supreme Court 0:21:54.160 --> 0:21:56.680 heard the case and they found that his speech did 0:21:56.720 --> 0:22:00.920 not qualify for for protection. Um. But here's the hitch. 0:22:01.520 --> 0:22:05.359 They didn't rule on the obscenity. They ruled that, hey, 0:22:05.720 --> 0:22:08.240 we're protecting kids, and you can't just mail this stuff 0:22:08.560 --> 0:22:12.640 to a house because kids live in houses, and so 0:22:13.040 --> 0:22:16.800 it was an appropriate content for children. Um. And what 0:22:16.840 --> 0:22:19.399 it did as well is is it specified a test 0:22:20.080 --> 0:22:23.480 for defining obscenity. Which, boy, over the years, this has 0:22:23.520 --> 0:22:27.040 been a really tough thing, and it seems like over 0:22:27.080 --> 0:22:29.520 the years of courts round me don't want any part 0:22:29.560 --> 0:22:31.920 of that. Now. If there's one thing too that as 0:22:31.920 --> 0:22:34.560 far as restricting free speech goes, that drives me up 0:22:34.600 --> 0:22:38.800 the wall, it's obscenity. The Court should not have anything 0:22:38.840 --> 0:22:42.800 to do with obscenity, and mostly they don't wanting on it. Right. 0:22:42.840 --> 0:22:46.600 There's this great quote from Hugo Black, who as of 0:22:46.640 --> 0:22:49.720 this podcast has become my favorite Supreme Court justice of 0:22:49.720 --> 0:22:54.720 all time. He said in Michigan versus State of New York, Um, 0:22:54.760 --> 0:22:57.240 I wish once more to express my this is my 0:22:57.320 --> 0:22:59.639 Hugo Black, By the way, I wish once more to 0:22:59.760 --> 0:23:02.840 ex pressed my objections to saddling this court with the 0:23:02.880 --> 0:23:08.199 irksome and an inevitably unpopular and unwholesome task of finally deciding, 0:23:08.440 --> 0:23:12.320 by a case by case, site by site personal judgment 0:23:12.359 --> 0:23:15.119 of the members of this court what pornography whatever that 0:23:15.160 --> 0:23:19.680 means is too hardcore for people to see or read. Yeah, basically, 0:23:19.720 --> 0:23:22.240 they were tired of sitting in court and looking at 0:23:22.359 --> 0:23:27.359 like pictures of bestiality at least, and ruling on this 0:23:27.400 --> 0:23:29.840 stuff like what about this one? What about this one? 0:23:30.040 --> 0:23:31.919 What about this? The thing is they were looking at 0:23:32.000 --> 0:23:35.240 like pulp pulp books, Like Michigan was a guy who 0:23:35.359 --> 0:23:38.639 had a publishing house of pulp books that showed like 0:23:38.680 --> 0:23:42.960 B D S. M or lesbianism or masturbation or whatever 0:23:43.040 --> 0:23:45.119 on the cover. He's like, this is this is actually 0:23:45.160 --> 0:23:47.720 pretty nice? Right, They're like, man, it's a perk of 0:23:47.800 --> 0:23:50.360 the job, but we shouldn't have to do it anyway. 0:23:50.560 --> 0:23:53.480 And so the idea that that um, the Court is 0:23:53.560 --> 0:23:56.760 ruling what is obscene is and what is not is 0:23:56.960 --> 0:24:03.040 it's legislating morality, clear and just clearly it's legislating morality. 0:24:03.160 --> 0:24:05.520 And I don't think the Court has any any right 0:24:05.680 --> 0:24:07.800 to that at all, but they have they have a 0:24:07.840 --> 0:24:10.960 long tradition of it, and over time they've actually come 0:24:11.000 --> 0:24:17.119 to protect pornography. Um, with the exception of child pornography, 0:24:17.200 --> 0:24:19.639 which you're not really gonna You're gonna be hard pressed 0:24:19.640 --> 0:24:22.879 to find anybody who argues for freedom of speech as 0:24:22.920 --> 0:24:28.280 far as child pornography goes. UM. And then obscenity, which 0:24:28.480 --> 0:24:33.080 is which came out of this, the three pronged tests 0:24:33.119 --> 0:24:36.600 to determine what's obscene came out of that Miller the 0:24:36.720 --> 0:24:39.760 California case, and it says this. It says that if 0:24:39.800 --> 0:24:45.879