WEBVTT - Selects: How Free Speech Works 0:00:00.840 --> 0:00:04.200 Hey, everybody, Happy Saturday. Good morning. I hope you've had 0:00:04.200 --> 0:00:07.080 your breakfast cereal, and I hope you have had your cartoons. 0:00:07.560 --> 0:00:10.240 And I hope you are ready to learn about free 0:00:10.480 --> 0:00:13.920 speech here. That being thrown around a lot these days, 0:00:14.000 --> 0:00:18.400 free speech, free speech, But free speech actually means something specific. 0:00:19.000 --> 0:00:21.400 It's not just you can say anything you want, any 0:00:21.440 --> 0:00:24.279 time you want and without any repercussions at all. That's 0:00:24.280 --> 0:00:26.160 not free speech. We're here to tell you what it 0:00:26.200 --> 0:00:31.840 really is. In the episode from February How Free Speech Works. 0:00:36.440 --> 0:00:39.239 Welcome to Stuff You Should Know, a production of I 0:00:39.360 --> 0:00:48.640 Heart Radio. Hey, welcome to the podcast. I'm Josh Clark, 0:00:48.720 --> 0:00:52.720 There's Charles w Chuck Bryant, there's Jerry. Papers have been shuffled. 0:00:53.000 --> 0:00:56.360 Their plumb and true. It's time for Stuff you should 0:00:56.360 --> 0:00:58.920 Know the podcast. You know it's not plumb and true. 0:00:59.480 --> 0:01:04.760 My gut. Anything in my house I went to, Uh, 0:01:05.160 --> 0:01:09.640 all of my house had those gross, cheap, hollow core 0:01:09.760 --> 0:01:15.160 doors you know. Oh yeah, you know they're not doors. 0:01:15.200 --> 0:01:17.840 I mean they function as doors, but if there's air 0:01:18.160 --> 0:01:20.759 in your door, then there's not a door. So one 0:01:20.800 --> 0:01:23.440 by one I've been replacing them with wood, solid doors. 0:01:23.840 --> 0:01:25.679 And I went and did that for our bedroom. And man, 0:01:25.680 --> 0:01:29.560 oh man, was it frustrating. Oh hanging them because they 0:01:29.680 --> 0:01:33.040 didn't want to hang. It's the worst, like nothing straight, like, oh, 0:01:33.080 --> 0:01:34.760 that looks good, and then it goes to shut and 0:01:34.760 --> 0:01:37.520 it's like whack. Well I'm sure it was straight, you know, 0:01:37.800 --> 0:01:41.080 a hundred years ago, you know, and then over time 0:01:41.080 --> 0:01:43.640 the house settled in and now it's it's doing its 0:01:43.640 --> 0:01:45.600 own thing. So I had to shave the door in 0:01:45.640 --> 0:01:47.720 so many places it looks like a Doctor SEUs store. 0:01:47.840 --> 0:01:51.400 Oh cool, you should plant one of those weird doctor 0:01:51.440 --> 0:01:53.840 Seue's palm trees in your yard to really complete it. 0:01:53.920 --> 0:01:59.240 It's called marijuana. So I'm glad you just said marijuana, chuck, 0:01:59.280 --> 0:02:02.400 because you have every right to say the word marijuana 0:02:02.480 --> 0:02:05.840 in this country. It's a free country. You can say 0:02:05.880 --> 0:02:08.560 the name of a plant, you know, people people do 0:02:08.680 --> 0:02:12.799 say and have long said. This is a free country. 0:02:12.960 --> 0:02:15.920 I can say whatever I want. And free speech is 0:02:16.360 --> 0:02:21.960 one of the basic hallmarks of what makes America free country. 0:02:22.520 --> 0:02:27.000 Freedom of speech. Um, but America is not the only 0:02:27.040 --> 0:02:33.200 country that enshrines a freedom of speech protection in its charter. Yeah, 0:02:33.200 --> 0:02:36.440 there are varying degrees of it in many many countries. 0:02:37.000 --> 0:02:40.359 In some countries there's not very much. In other countries 0:02:40.600 --> 0:02:44.240 there's a lot. In the US is arguably one of 0:02:44.280 --> 0:02:48.079 the leaders, although some people point to Europe's and we'll 0:02:48.080 --> 0:02:50.639 talk about those later, but some people point to Europe's 0:02:51.200 --> 0:02:55.080 free speech protections and saying they're those people know what 0:02:55.080 --> 0:02:59.000 they're doing. Um. In the US, if you look at 0:02:59.440 --> 0:03:03.320 free speech, you go to the Bill of Rights. Typically 0:03:03.919 --> 0:03:07.120 it's a great place to start, and you will find 0:03:07.520 --> 0:03:11.560 you will find in the First Amendment of the Constitution, 0:03:12.160 --> 0:03:14.560 which is the first part of the Bill of Rights, 0:03:15.360 --> 0:03:19.600 it says in there specifically that Congress will make no 0:03:20.600 --> 0:03:26.519 law right abridging the freedom of speech. It's as simple 0:03:26.520 --> 0:03:30.200 as that. It doesn't say unless speech says this, unless 0:03:30.320 --> 0:03:33.360 somebody says that, unless you really don't like the guy, 0:03:33.960 --> 0:03:39.240 there is no It's absolute. It's an absolute protection of 0:03:39.280 --> 0:03:43.240 freedom of speech. Yeah, and that goes on. I think, uh, 0:03:43.280 --> 0:03:46.560 it's pertinent to mention abridging the freedom of speech or 0:03:47.640 --> 0:03:50.640 of the press, or the right of the people to 0:03:50.760 --> 0:03:55.840 peaceably to assemble founding Father JFK and to petition the 0:03:55.880 --> 0:03:59.960 government for a redress of grievances. I'm sorry that I'm 0:04:00.200 --> 0:04:02.520 take Kennedy one because we're all very important, you know, 0:04:02.800 --> 0:04:05.320 sure they are. Oh yeah, the press right to a symbol, 0:04:05.400 --> 0:04:08.040 it's a pretty important one. Well yeah, And because we 0:04:08.080 --> 0:04:13.840 had just left the country uh one, independence from Britain, 0:04:14.360 --> 0:04:17.760 who at the time was like, no, no, no, we 0:04:17.760 --> 0:04:21.800 we very much want to squash any dissenting opinions about 0:04:21.880 --> 0:04:25.599 the grown uh And people were getting thrown in jail 0:04:25.760 --> 0:04:28.080 for that kind of stuff in the colonies. They were 0:04:28.440 --> 0:04:32.520 trying to quash a rebellion. And that's a pretty important 0:04:32.560 --> 0:04:35.040 part of it. If you're if you're a monarchy, an 0:04:35.080 --> 0:04:39.840 absolute monarchy that wants to keep the rebels in check, 0:04:41.600 --> 0:04:44.280 you just say you can't say certain things, and if 0:04:44.279 --> 0:04:45.760 you do, we're going to throw you in jail. It 0:04:45.800 --> 0:04:48.440 has a freezing effect, yeah, Or they're weird punishments, like 0:04:48.480 --> 0:04:50.800 when they said stick a sock in it, they went yeah, okay, 0:04:50.839 --> 0:04:52.680 and they went no, really, stick a sock in it 0:04:53.400 --> 0:04:56.760 by law for eight months, governor, and tape it, tape 0:04:56.760 --> 0:04:59.800 it shut. With my dirty sock in your mouth, my 0:05:00.080 --> 0:05:04.400 dirty century sock, my wool sock from my wet boots. 0:05:05.640 --> 0:05:07.920 Um quickly though, I think we should point out that 0:05:08.920 --> 0:05:11.680 as we were going through this, like I realized you 0:05:11.720 --> 0:05:14.839 could have an entire podcast called the Ins and Outs 0:05:14.839 --> 0:05:17.280 of Free Speech. Yeah, like a series, a whole show. 0:05:17.360 --> 0:05:18.880 You could have a whole show about it, not just 0:05:18.920 --> 0:05:21.160 an episode. So this is you know, this is an 0:05:21.200 --> 0:05:25.000 overview as we do that is going to pick and 0:05:25.200 --> 0:05:28.159 you know, talk about various court cases over the years, 0:05:29.000 --> 0:05:33.120 rulings and writings of judges, um, that are pertinent. But man, 0:05:33.160 --> 0:05:37.960 it's deep and wide. Yeah, it is, especially considering that 0:05:38.800 --> 0:05:40.760 again when you go to the Bill of Rights, it 0:05:40.839 --> 0:05:44.200 just says Congress can't pass any laws that abridge the 0:05:44.400 --> 0:05:47.640 freedom of speech. There they're like, why does he keep 0:05:47.640 --> 0:05:52.600 writing right there? And chuck. Not only though, was it 0:05:53.200 --> 0:05:59.200 this in retaliation reaction to um, the British monarchy. Yeah, 0:05:59.400 --> 0:06:02.400 it was also a big part of Enlightenment thinking as well. 0:06:02.680 --> 0:06:06.520 The protection of freedom of speech was a huge aspect 0:06:06.600 --> 0:06:09.839 of the Enlightenment. And you know, obviously the United States 0:06:09.839 --> 0:06:14.080 was founded during the Enlightenment and as part of the Enlightenment. 0:06:14.120 --> 0:06:17.000 It was an Enlightenment experiment, right, Yeah, like we don't 0:06:17.040 --> 0:06:21.640 want to restrict thought or expression, um. And you know, 0:06:21.720 --> 0:06:24.880 some might say that if if the Britain hadn't been 0:06:24.920 --> 0:06:30.240 so intent on squashing dissenting opinion, then we might not 0:06:30.360 --> 0:06:36.280 have been so enlightenment aside. So uh, heck bent on 0:06:36.880 --> 0:06:38.920 ensuring those rights. So maybe it all worked out for 0:06:38.960 --> 0:06:42.040 the best. Yeah, I think so. And Britain came around. Right. 0:06:42.600 --> 0:06:44.599 You can still get that sock thrown in your mouth, 0:06:44.640 --> 0:06:47.800 can you? I don't know, man, it's on the book still. 0:06:47.839 --> 0:06:49.520 I just don't know if they do it anymore. Is 0:06:50.000 --> 0:06:52.360 the socks are much nicer now, that's right. They're all 0:06:52.440 --> 0:06:56.680 happy socks. So since you have this very broad um 0:06:56.960 --> 0:07:01.120 protection of freedom of speech, right, yeah, then there's nothing 0:07:01.120 --> 0:07:03.000 more to be said about it. Anybody can say anything 0:07:03.040 --> 0:07:06.480 they want. Not true, quite true. It isn't true because 0:07:06.480 --> 0:07:10.240 we have three branches of government here in the US. 0:07:10.400 --> 0:07:12.640 We do. Yeah, it turns out I thought that was 0:07:12.720 --> 0:07:16.680 just one. You got the executive branch, which is the 0:07:16.720 --> 0:07:19.200 one I think you're thinking. Uh. Then you have the 0:07:19.320 --> 0:07:24.760 legislative branch Congress, okay, which is actually separate, and then 0:07:24.920 --> 0:07:28.520 you have the third branch, the judicial branch. Yes, they 0:07:28.640 --> 0:07:33.040 are equal and important branch. And with um the congressional 0:07:33.240 --> 0:07:38.080 legislative branch. They pass laws, people go out and break laws, 0:07:39.360 --> 0:07:45.400 people get convicted, people appeal their convictions, and in some cases, 0:07:45.760 --> 0:07:51.240 those convictions and the laws are questionable enough or interesting 0:07:51.360 --> 0:07:54.680 enough that it will eventually make it to a high 0:07:54.800 --> 0:07:58.040 enough court that the court will rule on whether or 0:07:58.080 --> 0:08:04.000 not that law holds to any constitutional standard. Yeah. Over time, 0:08:04.440 --> 0:08:09.080 freedom of speech has been shaped and expanded and paired away, 0:08:09.680 --> 0:08:12.760 um by the courts here in the United States. Yeah, 0:08:12.800 --> 0:08:16.400 Like maybe more so than any other kind of segment 0:08:16.480 --> 0:08:19.840 of law, or maybe not. But I'm gonna just as 0:08:19.920 --> 0:08:25.560 as an complete, um armchair attorney, I'm gonna say that 0:08:25.680 --> 0:08:30.800 perhaps free speeches has been challenge more and whittled down 0:08:30.880 --> 0:08:35.480 and defined more than maybe any other aspect of law. Yeah, 0:08:35.520 --> 0:08:38.920 because one of the big things that the courts did 0:08:38.960 --> 0:08:41.880 with freedom of speech was to really expand the definition 0:08:41.920 --> 0:08:44.400 of speech. Yeah, it's not just words that come out 0:08:44.400 --> 0:08:47.160 of your mouth or even right. No, Like it can 0:08:47.200 --> 0:08:51.000 be a T shirt that says f the police, or 0:08:51.120 --> 0:08:55.959 could say um um uh yeah, hug the police. Sure 0:08:57.120 --> 0:08:59.120 somebody might find that offensive. Who knows, thank you for 0:08:59.160 --> 0:09:02.560 coming to my rescue. It could be a billboard, it 0:09:02.600 --> 0:09:06.280 could be um, it could be a pamphlet you hand out. 0:09:06.440 --> 0:09:09.520 It could be an act, symbolic act, flag burning. That 0:09:09.600 --> 0:09:11.120 was a big one to remember that in the eighties 0:09:11.160 --> 0:09:15.040 absolutely or or refusing to say the pledge allegiance that 0:09:15.080 --> 0:09:17.720 was in the I think World War two, Yeah, which 0:09:17.760 --> 0:09:21.600 is actually now protected as because free speech can also 0:09:21.720 --> 0:09:25.520 mean the freedom to not speech. Yeah, because up until 0:09:25.640 --> 0:09:28.960 I think in the Supreme Court ruled on it, kids 0:09:29.240 --> 0:09:32.319 were being forced to say the pledge whether they wanted 0:09:32.360 --> 0:09:35.480 to or not. In the Supreme quisite. Now we think 0:09:35.880 --> 0:09:39.960 freedom of speech is really freedom of expression, and if 0:09:40.000 --> 0:09:42.040 you don't feel like saying the pledge, you're free to 0:09:42.080 --> 0:09:44.800 express yourself in that way. Yeah. And as you'll find, 0:09:45.200 --> 0:09:48.640 um throughout the show, we'll kind of probably say this 0:09:48.760 --> 0:09:52.720 over and over, freedom of speech doesn't have a lot 0:09:52.760 --> 0:09:59.400 to do with something you might find offensive or repugnant. Um. Generally, 0:09:59.760 --> 0:10:03.520 the U S decided on protecting that right regardless of 0:10:03.559 --> 0:10:05.400 whether or not you're offended or you think it's awful. 0:10:06.040 --> 0:10:08.400 And that's kind of what makes America great in a 0:10:08.400 --> 0:10:11.199 lot of ways, is you know, what, who are we 0:10:11.280 --> 0:10:16.200 to decide what you know, to legislate morality essentially, and 0:10:16.200 --> 0:10:18.320 what we'll get into all this with obscenity and all 0:10:18.360 --> 0:10:21.680 that stuff and pornography. But um, even when it comes 0:10:21.679 --> 0:10:24.280 to like you know, I don't want to say the pledge. 0:10:24.320 --> 0:10:27.480 Because of this reason, the courts have said, you know what, 0:10:27.559 --> 0:10:29.679 that that you're right, this is America. We may not 0:10:29.880 --> 0:10:32.480 like it, but that you're right. Yeah. And the whole 0:10:32.559 --> 0:10:35.040 reason behind this too, it's it's easy to just take 0:10:35.040 --> 0:10:37.040 it for granted, especially if you were raised in the 0:10:37.120 --> 0:10:41.400 United States, that you have that right. Who cares what 0:10:41.480 --> 0:10:44.360 the basis of it is. You can say basically whatever 0:10:44.400 --> 0:10:47.280 you want, you know um. But when you really dig 0:10:47.320 --> 0:10:50.480 into why the founders sought to protect this and why 0:10:50.520 --> 0:10:54.400 it's been upheld and defended so much over the years, 0:10:54.840 --> 0:10:58.280 is because the idea is that if you are free 0:10:58.320 --> 0:11:01.000 to speak your mind without fear of being put in 0:11:01.080 --> 0:11:05.800 jail or killed or beaten by a mob um, that 0:11:06.240 --> 0:11:09.479 you are going to introduce new ideas to the marketplace 0:11:09.520 --> 0:11:12.840 of ideas. And through this you're gonna have an exchange 0:11:12.840 --> 0:11:14.840 with other people, and a lot of times it's going 0:11:14.880 --> 0:11:17.120 to be contentious and it's going to be ugly, but 0:11:17.240 --> 0:11:21.400 over time things can evolve and get better and change 0:11:21.440 --> 0:11:25.600 for the better through this exchange of ideas. And to 0:11:25.760 --> 0:11:31.120 ensure that the engine of cultural evolution continues unabated, you 0:11:31.200 --> 0:11:33.280 have to have the free exchange of ideas. And to 0:11:33.360 --> 0:11:35.360 have the free exchange of ideas, you have to have 0:11:35.440 --> 0:11:38.680 protection of free speech. Yeah, because if not, you have 0:11:38.880 --> 0:11:41.680 the government being the one saying, well, now here are 0:11:41.720 --> 0:11:45.240 all the ideas, right exactly, and um, don't worry about 0:11:45.280 --> 0:11:47.200 having any of your own. Yeah, these are these, these 0:11:47.240 --> 0:11:49.199 are the ones. Yeah. And in a lot of cases, 0:11:49.280 --> 0:11:53.160 those things can come across as really great ideas. Um. 0:11:53.240 --> 0:11:57.640 Here in the US, up until the UH, I think 0:11:57.679 --> 0:12:02.040 the mid fifties or early sixties, there were laws on 0:12:02.120 --> 0:12:05.440 the books where it said you can't you can't speak 0:12:05.480 --> 0:12:09.880 ill of groups, like you can't say anything about um, 0:12:10.080 --> 0:12:15.040 Jewish people or Muslim people or any group. You can't 0:12:15.080 --> 0:12:19.080 say these things. It was not protected, right. It was 0:12:19.080 --> 0:12:23.440 called group libel. And that actually sounds pretty good in 0:12:23.480 --> 0:12:25.360 a lot of in a lot of senses, like, yeah, 0:12:25.360 --> 0:12:28.000 we shouldn't be talking trash about entire groups of people, 0:12:28.000 --> 0:12:31.320 because it does it can lead to two problems. But 0:12:31.840 --> 0:12:36.680 that same prohibition on speech came to be exploited by 0:12:36.760 --> 0:12:40.880 white Southerners who were in power in the fifties, who said, 0:12:41.240 --> 0:12:45.360 Martin Luther King, he's trying to incite violent social change 0:12:45.400 --> 0:12:50.360 with his his radical ideas. Somebody needs to uh put 0:12:50.640 --> 0:12:54.040 a duct tape over that guy's mouth. He doesn't have 0:12:54.080 --> 0:12:57.240 the freedom to say this. And actually, our right to 0:12:57.400 --> 0:13:01.760 say hateful things about other people was a direct result 0:13:01.840 --> 0:13:05.800 in the United States of the civil rights movement UM 0:13:05.840 --> 0:13:10.560 being protected by the courts against white Southerners who sought 0:13:10.600 --> 0:13:16.079 to um to uh squash their their speech. So I 0:13:16.120 --> 0:13:20.480 hate speech, Yeah, is due in part in part to 0:13:20.880 --> 0:13:24.079 Dr Martin Luther King and and trying to advance civil 0:13:24.160 --> 0:13:27.719 rights in a weird turn of events, Yeah, it really was. Uh. 0:13:27.760 --> 0:13:31.199 And in Europe, and we'll talk about this a little more. UM, 0:13:31.320 --> 0:13:33.240 Like you said, some people say they have nailed it. 0:13:33.640 --> 0:13:38.000 They don't protect hate speech, and you can't be uh, 0:13:38.120 --> 0:13:43.480 you can't deny the Holocaust publicly, and you can't um say, 0:13:43.559 --> 0:13:46.880 you know Jewish people, you know x y Z or 0:13:46.920 --> 0:13:50.839 this group of people are like this. Um. Some people 0:13:50.880 --> 0:13:52.679 say that's you know, that's kind of right on the money. 0:13:53.360 --> 0:13:55.120 We have taken a different tech here in the US. 0:13:55.280 --> 0:13:58.200 Right in Europe does that because they have a pretty 0:13:58.320 --> 0:14:01.280 recent example of what can happen if you do have 0:14:01.360 --> 0:14:06.200 freedom of speech, and that totalitarian government can hijack that 0:14:06.240 --> 0:14:09.079 freedom of speech and use it as propaganda to incite 0:14:09.120 --> 0:14:13.920 hatred amongst an entire population. Um or even as as 0:14:14.240 --> 0:14:17.440 um this this one author put it to prepare them 0:14:17.480 --> 0:14:22.200 for extermination, just basically saying like, hey, everybody, get those guys. 0:14:22.560 --> 0:14:25.840 They're the reasons you don't have jobs. They're the rapists. 0:14:25.880 --> 0:14:28.120 They're the people who are who are going to kill 0:14:28.160 --> 0:14:31.880 you and steal your your family's wealth and well being. 0:14:32.440 --> 0:14:35.280 So get rid of them. Turn on them. And that's 0:14:35.320 --> 0:14:40.640 the whole point of saying, nobody can incite hatred through 0:14:40.680 --> 0:14:46.000 speech in these European democracies. Um, because the state has 0:14:46.040 --> 0:14:51.360 done it before. Yeah, and we all see what happened there. Um. 0:14:51.440 --> 0:14:52.800 Should we take a break? I feel like that's a 0:14:52.800 --> 0:14:58.720 good intro, broad, all encompassing, passionate, all encompassingly. All right, 0:14:58.760 --> 0:15:00.000 Well we'll come back here in a minute and get 0:15:00.080 --> 0:15:05.880 down to the nitty gritty of some of these court cases. Okay, sorry, gee, 0:15:18.720 --> 0:15:30.440 um large skid all right, trend um, So if you 0:15:30.480 --> 0:15:33.360 want to go back a little bit to justice Oliver 0:15:33.480 --> 0:15:38.760 Wendell Holmes Jr. Son of Sherlock, one of the famous 0:15:39.600 --> 0:15:44.520 justice is the United States. Uh, in a lot of ways, 0:15:44.600 --> 0:15:48.480 but very specifically because everyone has sort of heard the 0:15:48.680 --> 0:15:52.840 the old thing that, Um, you can't yell fire in 0:15:52.920 --> 0:15:56.560 a movie theater and say that's free speech because that 0:15:56.720 --> 0:16:00.280 will In the case of in the nineteen nineteen case 0:16:00.600 --> 0:16:05.160 Shink the United States, UM, Charles Schenk was arrested for 0:16:05.240 --> 0:16:10.680 distributing material basically that said, hey, UM, don't the the 0:16:11.040 --> 0:16:15.080 US draft military draft is bs um, don't do it. 0:16:15.480 --> 0:16:18.240 Fight against it? Uh. And they said, you know what, 0:16:18.400 --> 0:16:22.160 that's that's espionage actually, And that went all the way 0:16:22.160 --> 0:16:25.400 to Supreme Court and they did not protect that right because, 0:16:25.680 --> 0:16:28.440 in the words of Oliver Winto Holmes, they said, did 0:16:28.480 --> 0:16:31.120 the words create a clear and present danger that they 0:16:31.160 --> 0:16:33.920 will bring about substantive evils? Congress has a right to 0:16:34.000 --> 0:16:36.960 prevent and that sort of in line. And later on 0:16:37.040 --> 0:16:38.680 in that same ruling, he was talking about yelling fire 0:16:38.720 --> 0:16:41.120 in a theater as an example, like, you know, you 0:16:41.160 --> 0:16:42.960 can't do that because I will insight panic if people 0:16:42.960 --> 0:16:45.560 will get stomped. Right, And in this case this kind 0:16:45.600 --> 0:16:49.120 of set the precedent for or the tone for all 0:16:49.440 --> 0:16:54.280 free speech cases to follow. UM. It's weighing the the 0:16:54.600 --> 0:16:58.240 individual right versus the public good, yes, or in this case, 0:16:58.560 --> 0:17:04.760 the individual right, says UM, creating some problem or evil 0:17:04.840 --> 0:17:07.280 as he put it, that Congress has a right and 0:17:07.359 --> 0:17:11.639 an interest to prevent a danger to the country, right. UM. 0:17:11.760 --> 0:17:15.119 In this case, really what they were saying was they 0:17:15.160 --> 0:17:20.760 were suppressing criticism of a government program, the Draft. UM. 0:17:21.840 --> 0:17:24.960 And then but Holmes was fine with that. But within 0:17:25.040 --> 0:17:29.159 a year I think he saw his UM, his test, 0:17:29.520 --> 0:17:31.400 you know, does it present a clear and present danger 0:17:31.760 --> 0:17:35.479 being used in a way to to squash descent when 0:17:35.520 --> 0:17:39.119 a bunch of anarchists who were just generally advocating the 0:17:39.240 --> 0:17:43.040 overthrow of the government. UM, rather than need to do 0:17:43.280 --> 0:17:48.560 this on this date at this time, UM, they were used, 0:17:48.760 --> 0:17:52.240 they were convicted under the test that Holmes created. So 0:17:52.359 --> 0:17:54.840 he took what was called the Great Dissent and actually 0:17:54.920 --> 0:17:59.359 dissented against his own former test and said, no, it 0:17:59.440 --> 0:18:02.080 has to present a clear and present danger, present meaning 0:18:02.160 --> 0:18:04.720 like it's about to happen or you know, the time 0:18:04.760 --> 0:18:07.439 that it's going to happen, and it's a clear danger, 0:18:07.600 --> 0:18:10.760 like this is what's going to happen. Because this person 0:18:10.920 --> 0:18:15.119 said that, so that that ultimately became the format for 0:18:15.960 --> 0:18:18.080 UM what we'll talk about in a little bit, which 0:18:18.160 --> 0:18:22.320 is inciting violence. Yeah, and that's not to say that UM, 0:18:22.760 --> 0:18:24.680 like The ruling there, like you said, was about a 0:18:24.720 --> 0:18:27.920 clear and present danger, not necessarily the fact that Charles 0:18:27.960 --> 0:18:30.400 Schenk was against the war, because we have a long 0:18:30.520 --> 0:18:33.520 history in this country of being able to uh be 0:18:33.680 --> 0:18:37.480 a wartime dissenter and talk about it and be protected. Um. 0:18:37.640 --> 0:18:40.080 During Vietnam War, there was a man who had he 0:18:40.119 --> 0:18:41.680 went through an l A courthouse and he had a 0:18:41.760 --> 0:18:45.600 jacket that said, you know, F the draft, but it 0:18:45.720 --> 0:18:48.840 was really spelled out. It's so ironic that we're censoring 0:18:48.920 --> 0:18:53.119 ourselves in this one, but it's uh F the draft 0:18:53.240 --> 0:18:57.000 and they um as you will always almost always see here. 0:18:57.320 --> 0:19:00.280 These people are, like you said, usually arrested, convicted, and 0:19:00.359 --> 0:19:05.159 then when they're well maybe hippies, you never know, and 0:19:05.280 --> 0:19:07.560 then that's when the courts take it up and potentially 0:19:07.640 --> 0:19:10.480 either a protect or don't protect the speech. In this case, 0:19:10.640 --> 0:19:14.640 the court said no, you're within your right because someone 0:19:14.720 --> 0:19:17.239 could see your jacket and then not look at it, right, 0:19:17.400 --> 0:19:19.320 And that's a good point. Like you you can just 0:19:19.440 --> 0:19:22.160 look away from the guy's jacket, right. You can also 0:19:22.560 --> 0:19:25.480 not take the pamphlet that the guys handing you. You 0:19:25.560 --> 0:19:29.119 can also you can also not rent the movie that 0:19:29.480 --> 0:19:31.920 um that you find offensive. You can also turn the 0:19:32.000 --> 0:19:34.520 TV station. You can also turn the radio down. You 0:19:34.560 --> 0:19:36.440 can also not go to the website. You can turn 0:19:36.520 --> 0:19:39.600 our podcast off. To me, well you shouldn't, so you could. 0:19:40.040 --> 0:19:45.760 To me, the alternative of not not receiving some speech 0:19:45.840 --> 0:19:49.480 that you find offensive like being able to get away 0:19:49.560 --> 0:19:52.560 from it. That to me is the ultimate test for 0:19:53.200 --> 0:19:56.160 for whether speech should be restricted or not. And since 0:19:56.200 --> 0:20:00.000 you can in virtually any situation get away from speech 0:20:00.040 --> 0:20:05.040 each except maybe skywriting, we should probably really regulate sky 0:20:05.240 --> 0:20:07.440 riding pretty pretty toughly. Now you can look down on 0:20:07.440 --> 0:20:09.760 the ground, but I guess you could. Yeah, So as 0:20:09.800 --> 0:20:12.440 long as you can get away from it, or, more 0:20:12.480 --> 0:20:15.520 to the point sheared, shield your children from it, I 0:20:15.600 --> 0:20:18.560 don't think it should be I don't see any reason 0:20:18.640 --> 0:20:23.680 for it to be um entailed. For skywriting. You would 0:20:23.680 --> 0:20:25.760 have to argue in court that it is such a 0:20:25.840 --> 0:20:29.040 delight to children that they can't help. But look like 0:20:29.119 --> 0:20:32.000 you would have to physically restrain them and put blinders 0:20:32.040 --> 0:20:34.639 on them, exactly, and that's unreasonable, your honor right. You 0:20:34.720 --> 0:20:36.520 could write a curse word and then do a drawing 0:20:36.560 --> 0:20:40.040 of Barney and that would satisfy that is Barney still 0:20:40.040 --> 0:20:42.919 a thing. I think Barney will always be a thing. 0:20:43.240 --> 0:20:46.040 I don't know. Uh So over the years have been, 0:20:46.200 --> 0:20:48.200 like we said, a lot of court cases that have 0:20:49.080 --> 0:20:52.320 kind of whittled away and defined not whittled away, you know, 0:20:52.560 --> 0:20:58.000 because that molded shaped, molded and shaped. Uh So Marvin 0:20:58.320 --> 0:21:02.480 Old Marv ran an adult book business, and he what 0:21:02.600 --> 0:21:05.600 he did was he sent out mailers. He liked to 0:21:05.600 --> 0:21:09.320 send out a mailer, right, and um, these mailers would 0:21:09.320 --> 0:21:11.879 show up at houses where, you know, something my kid 0:21:11.960 --> 0:21:14.680 might read it, or someone easily offended might read it, 0:21:15.200 --> 0:21:17.960 or not so easily offended might read it. Uh. And 0:21:18.080 --> 0:21:22.280 there was a mom who uh this was her adult son. Yeah, 0:21:22.320 --> 0:21:24.280 it was a mom and her grown son who's the 0:21:24.359 --> 0:21:28.160 manager of I guess the family restaurant. And they childlike 0:21:28.800 --> 0:21:33.119 maybe he was his eyes were burning. Um, I don't know, 0:21:33.240 --> 0:21:35.760 maybe his mom was just just treated him like a kid. 0:21:35.840 --> 0:21:38.280 Who knows. But they said, you know what, you know, 0:21:39.240 --> 0:21:42.280 this guy shouldn't be mailing these randomly to just whoever. 0:21:42.440 --> 0:21:44.760 We certainly don't want it, so we're gonna call and complaint. 0:21:45.440 --> 0:21:49.320 And Marvin Miller ended up getting arrested for um obscenity. 0:21:50.240 --> 0:21:52.000 And this is a huge this turned out to be 0:21:52.080 --> 0:21:53.720 a huge case. Yeah, and went all the way to 0:21:53.720 --> 0:21:57.399 the Supreme Court, and um, yeah, it was. It was 0:21:57.680 --> 0:22:03.360 what you call a um, what do you call that? Landmark? Well, 0:22:03.480 --> 0:22:07.920 Landmark's waters watershed. I couldn't think of it. I was like, 0:22:08.000 --> 0:22:10.600 we did a podcast on it recently. It's an Intego 0:22:10.720 --> 0:22:15.200 Girls song. That's right. It was a watershed case. Miller v. California. 0:22:15.680 --> 0:22:17.760 And I'm gonna say V instead of versus. I think 0:22:17.800 --> 0:22:20.520 we've talked about that before, right, Um, it makes you 0:22:20.640 --> 0:22:25.840 sound more legal easy, Yeah, and everyone likes being legal easy. Uh. 0:22:25.920 --> 0:22:29.320 In three, like I said, the Supreme Court heard the 0:22:29.400 --> 0:22:32.280 case and they found that his speech did not qualify 0:22:32.480 --> 0:22:36.760 for for protection. Um. But here's the hitch. They didn't 0:22:36.840 --> 0:22:41.600 rule on the obscenity. They ruled that, hey, we're protecting kids, 0:22:41.640 --> 0:22:44.000 and you can't just mail this stuff to a house 0:22:45.000 --> 0:22:48.880 because kids live in houses, and so it was inappropriate 0:22:49.000 --> 0:22:52.480 content for children. Um. And what it did as well 0:22:52.640 --> 0:22:57.400 is it is it specified a test for defining obscenity, which, boy, 0:22:57.480 --> 0:22:59.880 over the years, this has been a really tough thing 0:23:00.240 --> 0:23:03.359 and it seems like over the years of courts round 0:23:03.400 --> 0:23:05.480 me don't want any part of that. Now. If There's 0:23:05.560 --> 0:23:08.560 one thing too that as far as restricting free speech goes, 0:23:08.640 --> 0:23:12.160 that drives me up the wall. It's obscenity. The Court 0:23:12.200 --> 0:23:15.920 should not have anything to do with obscenity, and mostly 0:23:15.960 --> 0:23:18.760 they don't wantling on it. Right, There's this great quote 0:23:18.880 --> 0:23:22.800 from Hugo Black, who, as of this podcast has become 0:23:22.880 --> 0:23:26.000 my favorite Supreme Court justice of all time. He said 0:23:26.359 --> 0:23:30.040 in Michigan versus State of New York, Um, I wish 0:23:30.160 --> 0:23:32.720 once more to express my this is my Hugo Black, 0:23:32.760 --> 0:23:35.200 by the way, I wish once more to express my 0:23:35.320 --> 0:23:38.480 objections to saddling this court with the irksome and an 0:23:38.680 --> 0:23:43.960 inevitably unpopular and unwholesome task of finally deciding by a 0:23:44.160 --> 0:23:47.359 case by case, site by site personal judgment of the 0:23:47.400 --> 0:23:50.680 members of this court what pornography, whatever that means is 0:23:50.760 --> 0:23:55.200 too hardcore for people to see or read. Basically, they 0:23:55.240 --> 0:23:57.280 were tired of sitting in court and looking at like 0:23:58.000 --> 0:24:01.920 pictures of a B. C. At the least, and ruling 0:24:02.000 --> 0:24:04.400 on this stuff like what about this one? What about 0:24:04.440 --> 0:24:06.600 this one? What about? The thing is they were looking 0:24:06.680 --> 0:24:09.880 at like pulp pulp books Like Michigan was a guy 0:24:09.960 --> 0:24:13.359 who had a publishing house of pulp books that showed 0:24:13.400 --> 0:24:17.480 like B D S M or lesbianism or masturbation or 0:24:17.520 --> 0:24:19.720 whatever on the cover. He's like, this is this is 0:24:19.720 --> 0:24:22.600 actually pretty nice, right, They're like minutes a perk of 0:24:22.680 --> 0:24:24.760 the job. But we shouldn't have to do it anyway. 0:24:25.440 --> 0:24:28.320 And so the idea that that um, the court is 0:24:28.440 --> 0:24:31.560 ruling what is obscene is and what is not is 0:24:31.840 --> 0:24:37.400