Then again, how many theater fires are there in a year? A decade? We weren't taught theater fire drills in school - only fire, tornado, and sometimes earthquakes... Maybe it'd be better if we were taught "how to stay calm during acts of great panic" drills.
Really? You don’t remember the “Leave your playbills where they are and make your way to the exits. Do not attempt to stop at the coat check” drills from elementary school?
This is a worthwhile effort but also a Herculean one. I was going to suggest that you consider "unprotected speech" as shorthand for the set of exceptions that permit content-based regulation without strict scrutiny. But even that shorthand is potentially misleading to a layperson given that "unprotected speech" can be protected by other doctrines (off the top of my head, overbreadth, vagueness, and the bar on viewpoint discrimination).
Great post, but notice that the Johnson ammendment doesn't fit into this analysis. If my church preaches that God wants you to wear a dunce hat then my church qualifies for the lower tax status. OTOH if my church preaches God wants you to elect Trump then I am subject to the tax.
It's the actual expressive content here which triggers what amounts to a fine so either the Johnson ammendment is facially unconstitutional (both free exercise and free speech problems) or it should fall into a first ammendment exception.
Am I missing something? Or is this as doctrinally inconsistent as it seems?
Peter, the Johnson Amendment prohibits tax-exempt orgs from endorsing candidates. Put another way, it limits non-profit tax exemption to organizations that don't. The Supreme Court has traditionally classified this as putting conditions on a benefit -- of declining to subsidize certain activities through tax breaks. https://supreme.justia.com/cases/federal/us/461/540/
The unconstitutional conditions doctrine is complex, and it's not 100% clear that the current court would still uphold the Johnson Amendment -- to put a big mess very briefly.
Thank you! I'll read that case to get a better understanding of the current case law.
Having read the case, I see your point. It's really hard to think that the reasoning there could be rendered compatible with Janus. If the court found that reasoning compelling it should have adopted the reasoning in Eugene Volkoh's amicus in Janus. At least this gives me some more hope that the current SCOTUS might strike down the Johnson ammendment.
I hope so because, as you say, it has little practical effect yet inflicts harm both insofar as it undermines the coherence of first ammendment jurisprudence and creates an excuse to object to robust funding of the IRS.
However, Im not so sure. It lies at a really tricky spot in politics as getting rid of it either requires accepting the ability of churches to campaign with tax free dollars (something the left finds symbolically distasteful even if in practice it's rarely enforced) or (my preferred approach but something the right and large parts of the left, eg, black church goes, would find symbolically distasteful) eliminating the special tax status of churches.
So I really feel like it's the kind of thing that requires the court to step in and fix. Politically it's far more appealing to just not enforce it than to either be seen as saying it's ok for religious organizations to campaign or that religious organizations aren't really charitable in the sense that doctors without borders is.
However, I also feel this is exactly the kind of question where the current court would ignore existing precedent to avoid this result. Thomas is a no-brainer here and the attitudes expressed by the other members on issues like the lemon test make me doubt the right leaning members and the left leaning members have their own reasons for not wanting to apply existing precedent here (eg their willingness to essentially create a psuedo-exception for campaign finance regulations despite the truly disastrous effects McCain-Feingold has had on our elections).
I'm someone who thinks churches probably shouldn't have a special tax status at all, since that forces the government to make decisions about the difficult question of "what even is a church anyway", so maybe I'm not the best person to answer this. That said, here's my best stab at it.
The problem here, like I alluded to above, is figuring out what is and isn't a church, and how to implement the concept of "separation of church and state". In a lot of ways this is also the core of issues around whether, when, and to what extent corporations have free exercise rights, but it's at least a little simpler when we're talking about something that straightforwardly claims to be a church. The basic conclusions that we've come to are (1) we mostly trust the self-identification of organizations that claim to be religious, and (2) we allow these organizations to disengage from the tax system to some extent, but (3) if an organization starts to directly engage in advocacy about how and by whom the government should be run, that sure looks a lot like a political party, for which we do not allow the same level of tax disengagement. The question is how we can distinguish between organizations that are actually religious, whatever that means, versus organizations that are just opportunistically trying to claim the extra leeway we give to religious organizations, in a situation where we are trying to be cautious about drawing too small a circle around what is "genuinely" religious conduct.
If I preach that the church should use a portion of its tithes to purchase goods that the paying members have a need for, and then distribute those goods according to the value of the tithes, and that the rest of the tithing income should be used to compensate church functionaries handling the logistics of all this, then it starts to look like I'm just running a store that I named "church" for whatever reason. In the case of political advocacy, we know that religion is a source of ethical guidance for many people, and ethics obviously inform political policy choices, so we can't make a distinction based on the mere fact that a policy is being discussed. Consistently suggesting that people vote for specific candidates in specific elections, though, is the core identifying feature of a political party, which we know is a different kind of thing. So in this case, it's not that churches are forbidden to speak about candidates for office, exactly, it's that the speech is being taken as an admission that the organization is not in fact a church. Sort of a civil version of "speech integral to criminal conduct".
And if your response boils down to "but that's basically the same thing" then, well, that's why the government should probably prefer not to categorically exempt certain kinds of organizations from general laws.
The IRS does look for 'fake pass throughs'. When you as a tax payer report giving you certify that you aren't receiving a benefit. If the church buys goods and gives them to tithers in proportion to the tithe, you are well over that line. You can still call yourself a church, but the giving isn't tax deductible. (When people give to our church to a specific pastor, that gift is not tax deductible (usually we return the check in that case, but if we accepted it we would mark it as not tax deductible)).
Having 501c status doesn't guarantee all giving to the 501c is tax deductible.
Fair point. That example was overbroad. The more general question of "what is a church" is still relevant to the underlying issue, though. After all, if you donate to, say, the SPLC, what benefit you receive from your donation is at best a fairly abstract one, most likely pretty removed from your daily life. Likewise the American Cancer Society, or a local community center. These organizations are non-profits, but they're not churches, and they're subject to more restriction in terms of their activities (I think, anyway - I tried to look deeper and have to an extent joined you in your initial confusion) and more scrutiny when it comes to their financing (this seems to be definitely true, or at least ProPublica makes confident claims to that effect). How do we tell the difference between ACS or the EFF and a church? It's an important question, because the FRC is right there already claiming that there is no difference.
(As far as tax law specifically - the IRS documentation on this subject is frustratingly unclear. All churches and charities are definitely 501(c)(3) organizations, and all 501(c)(3) orgs are prohibited from intervening directly on behalf of a candidate or political party, but that's not the same thing as lobbying, which they're allowed to engage in "some" of. And things like legal briefs or interactions with executive agencies appear to be explicitly exempted from both of those activity categories, despite being pretty near the core of the mission for things we would colloquially call "political advocacy organizations". All that said, something like ACS is also a 501(c)(3), so there's some subcategorization going on in there that the IRS is being cagey about. There's also persistent reference to other, unmentioned kinds of tax-exempt organizations besides 501s and 527s, which I think are formal political parties and the like. No doubt the tax lawyers are as uncomfortable as I am getting involved here.)
This sort of question, about what exactly we mean when we talk about "religious activity" or "religious belief" has been bugging me for a while. As I see Christian nationalists start to get more blatant in their efforts to push this country in a theocratic direction, I'm starting to feel like the concept of separate magestaria for church and state points in the direction of some important civic needs but fails to squarely capture them. At the same time, I am not a religious person, and so I'm very uncomfortable trying to draw a line in a conceptual space that just isn't much part of my life, at least the way our society frames things.
I'm confused. I know a lot of churches that take a political stand and it doesn't affect their tax status. Ours doesn't, but that's for theological reasons, not legal.
The Johnson ammendment (as I understand it) doesn't prohibit taking an issue stand (we are for/against trans-rights) but does prohibit direct exhortations to vote for specific candidates w/o giving up preferential tax status (not sure if that's only federal elections or if not how referendums are handled). Practically that's not a problem for most mainstream faiths but in principle there could be a faith which believes that God wants you to vote for Donald Trump and that must be explicitly preached from the pullpet.
As noted above it's not enforced much so in practice you have to be blatant for it to matter. As long as a church only talks about it indirectly (think about abortion etc when you vote next week) it's not going to practically matter. But it's still obviously inconsistent and should be struck down on a facial challenge -- though I fear it won't.
The 1st amendment has a very straight forward meaning. I don't think we need lawyers and political pundits "deciphering that meaning", yet here we are! (Not that I mind, of course)
So is the common bad metaphor of "falsely shouting fire in a crowded theater", if taken extremely literally, an example of the rule about expressive conduct?
If I actually cause an accident where people get hurt storming out of a theater, the government can punish me because they're not punishing my speech based on the content of a message I'm trying to convey, they're punishing me for the action of causing an unnecessary panick that hurt people. Is that somewhat accurate?
Jason LaBar, the public defender who represented Bryan Kohberger in Pennsylvania was quoted as saying this:
"People are too free to express their views without repercussions... and in this case, a lot of people have already expressed either guilt or innocence and really neither helps either the prosecution or defense."
Can you make sense of this? He seems pretty free to say people are too free.
I have not studied law, but I once participated in a long argument with an attorney who had urged that Congress reinstate the Fairness Doctrine, which requires broadcasters to present opposing viewpoints to matters of public interest. I took the position that the Doctrine was (or should be) a 1st Amendment issue because the Doctrine, instead of prohibiting political speech, *compelled* it. It seemed to me that compelling political speech was no less a violation of the 1st Amendment than prohibiting political speech.
I can't see how any of the exceptions to the 1st Amendment you discussed apply here. Has this issue ever been addressed by the courts?
Yes. The theory behind the Fairness Doctrine, accepted by the Supreme Court in 1969, was that the government owned the limited broadcast frequencies, and when it allocated those limited frequencies to broadcasters, it could require them as a condition to provide multiple viewpoints. It’s vulnerable now because (1) very little is broadcast vs. on cable or internet, so there aren’t limited frequencies, and (2) the modern Court is less likely to accept that logic anyway.
Thank you! Clear explanations, in layperson's terms, and including relevant references are of utmost importance to those of us who are willing to be educated, but don't have the extensive background in the subject material that an expert does. I found this summary to be very informative and easy to digest.
Another thing worth clarifying: the concept of “protected speech”. Some non-excepted speech is more protected than others (political speech, for instance).
We are a government made up of rules and standards and their application. This makes sense to me now. Thank you for slowing it down and making clarity. Happy New Year.
That was an exceptional attempt but I doubt it was successful for a lot of people.
Some otherwise intelligent people think First amendment means they can say anything, anywhere about anyone, free from consequences.
What it really means is your rights all stop where my nose begins.
For instance if someone wants to say hateful and hurtful things in a forum, on a street corner, or in a bar, I can walk away. But if you are in my doorway on my property, then in Texas, those are fighting words, and I have the right to protect myself physically. You are up in my nose, expect me to evict you you.
A friend who was losing an arguement in my back seat, while I was attempting to get directions from another friend on the phone. Screamed at me about the First Amendment. I stopped the car, pulled her out and told her to yell at anyone who would listen. I then called her husband and told him where he could pick her up.
Time and place...and I am not a governmental entity.
My car and home are not public spaces, like a internet forum, they are private spaces, subject to the rules of the owners.
I embrace Elon's right to waste 40 billion, on a dead bird. But the reality is that forum had become a verbal donniebrook much as the back seat of my car became the night I put an old friend out on a curb. His overpriced attempt to create a safe space for him and his bigoted friends, was the nail in the coffin of the poor little bluebird of happiness.
But it was a blessing for Medium, substack, Post, and Mastodon, and even for Facebook.
What is truly sad, is it is not just regular people, it is apparently lawyers. More than one lawyer has tried to compare the women's march against Kavanuagh and the BLM marches to Jan. 6 Seditious riot.
So I guess we should be patient with your readers, if even Ivy league lawyers are clueless.
Keep tilting at that windmill, I am here for it and I applaud Don Quixote Popehat!
Just noticed this, not sure what you are refencing here.
I as a general rule am opposed to doxing, especially for social reasons. I try not use words like he/she, or especially the most dangerous word in the English language "you". I have not been doxxed, lately, but the one time I was doxxed, I did literally walk away from it. Packed my house and moved.
But I am assuming here, the use of the word "you" is not meant to be me personally...unless you are implying I doxxed someone, which aside from one individual situation, I have never publically doxxed anyone. But we may be defining the word "doxxed" differently.
No, I didn’t express myself clearly. Not implicating you at all.
Doxxing is protected speech, and those who are the target of doxxing cannot reasonably walk away from it. Not everyone can just pack their stuff and move.
I feel that doxxing is different than someone yelling epithets in public, something you can ignore. A lot different than someone yelling out your name, address, and phone number in public.
I was interested in your thoughts on countering it. It is not illegal, and yet it wrecks people’s lives. Is that something we basically ignore because any legal measures would run afoul of the First Amendment?
On actual doxxing. This was years before that word had any meaning.
A guy on a BBS got into a disagreement with me and my husband on two different forums. He then found out that I ran one of the forums on a BBS my husband was co-owner on. He threatened to kill us and our children. Going into graphic detail, on a different forum and telling people our address and real names.
We moved. It was not easy, it was not fun, but we had a baby and a toddler.
The police would not do anything.
At the next mods meeting, the local BBS owners banned him from their sites. This late 1989.
Legally the legality of doxxing, what it is, and when it crosses any legal lines, is largely more of a state law POV, which has gotten blurred by the internet.
So people who have one opinion on legalities based on their state, may run into confusion on terms, and lines, when speaking on an interstate communication. The whole theatre on fire concept kinda goes up in flames, when the person giving dates and times of a private plane flight, are in New York and the plane is flying from Cali to Texas. California might care, but Texas does give a fig.
ahh ok, you are sort of correct that it is not illegal.
It depends on context.
Is the information truly private.
Second is the individual a private citizen or a "celebrity".
So in the context.
If I post as I am getting on a plane a photo and say OMG, this TV star is two rows up on my Delta flight to Houston. I hope I get a chance to talk to him when we deplane at 3 pm. Courts have ruled that is not a privacy issue. Celebrities deliberately give up a certain amount of privacy as a consequence of their status.
If on the other hand, I see a victim of a horrific crime, being escorted by Marshall's for their safety to a court date, and I take that picture and give that location,...I might be in trouble. Especially if one of those marshall's or the witness dies as a result of my action.
In the case of Emol the CEO, first he has made himself a celebrity. Most CEO's keep a low profile. Emoe goes out of his way to get as much press as possible.
Second he was NOT doxxed.
He has been calling the posting of his private plane as doxxing, but flight numbers and dates and times are public info, anyone with Google can get it.
He can "literally" walk away from the plane.
Honestly I bet Emoe's biggest problem is that no one was showing up to get his autograph, and his public antics have resulted with a handful of protestors showing up with signs.
I found his explanation here very helpful. He is doing something new: explaining terms that are common perhaps in legal parlance, but not immediately clear to people like me. Sure, it’ll take more effort on my part, but it is very useful. And a far cry from the Twitter dunkathon on people who didn’t grasp it in the first attempt.
Protip: If you come here with a Pepe the Frog avi talking about how people are genetically inferior, you won’t stay for long.
I want to say I'm astounded that someone was dumb enough to need this tip, but the real tragedy here is that I would be lying if I did.
How long was Patrick here?
The real tragedy of the First Amendment is just how many people have died in theater fires only because there’s no legal way to alert anyone.
Then again, how many theater fires are there in a year? A decade? We weren't taught theater fire drills in school - only fire, tornado, and sometimes earthquakes... Maybe it'd be better if we were taught "how to stay calm during acts of great panic" drills.
Really? You don’t remember the “Leave your playbills where they are and make your way to the exits. Do not attempt to stop at the coat check” drills from elementary school?
This is a worthwhile effort but also a Herculean one. I was going to suggest that you consider "unprotected speech" as shorthand for the set of exceptions that permit content-based regulation without strict scrutiny. But even that shorthand is potentially misleading to a layperson given that "unprotected speech" can be protected by other doctrines (off the top of my head, overbreadth, vagueness, and the bar on viewpoint discrimination).
Great post, but notice that the Johnson ammendment doesn't fit into this analysis. If my church preaches that God wants you to wear a dunce hat then my church qualifies for the lower tax status. OTOH if my church preaches God wants you to elect Trump then I am subject to the tax.
It's the actual expressive content here which triggers what amounts to a fine so either the Johnson ammendment is facially unconstitutional (both free exercise and free speech problems) or it should fall into a first ammendment exception.
Am I missing something? Or is this as doctrinally inconsistent as it seems?
Peter, the Johnson Amendment prohibits tax-exempt orgs from endorsing candidates. Put another way, it limits non-profit tax exemption to organizations that don't. The Supreme Court has traditionally classified this as putting conditions on a benefit -- of declining to subsidize certain activities through tax breaks. https://supreme.justia.com/cases/federal/us/461/540/
The unconstitutional conditions doctrine is complex, and it's not 100% clear that the current court would still uphold the Johnson Amendment -- to put a big mess very briefly.
Thank you! I'll read that case to get a better understanding of the current case law.
Having read the case, I see your point. It's really hard to think that the reasoning there could be rendered compatible with Janus. If the court found that reasoning compelling it should have adopted the reasoning in Eugene Volkoh's amicus in Janus. At least this gives me some more hope that the current SCOTUS might strike down the Johnson ammendment.
The Johnson Amendment is going to be extinct within a decade. It’s ineffective today, and rarely enforced anyway.
I hope so because, as you say, it has little practical effect yet inflicts harm both insofar as it undermines the coherence of first ammendment jurisprudence and creates an excuse to object to robust funding of the IRS.
However, Im not so sure. It lies at a really tricky spot in politics as getting rid of it either requires accepting the ability of churches to campaign with tax free dollars (something the left finds symbolically distasteful even if in practice it's rarely enforced) or (my preferred approach but something the right and large parts of the left, eg, black church goes, would find symbolically distasteful) eliminating the special tax status of churches.
So I really feel like it's the kind of thing that requires the court to step in and fix. Politically it's far more appealing to just not enforce it than to either be seen as saying it's ok for religious organizations to campaign or that religious organizations aren't really charitable in the sense that doctors without borders is.
However, I also feel this is exactly the kind of question where the current court would ignore existing precedent to avoid this result. Thomas is a no-brainer here and the attitudes expressed by the other members on issues like the lemon test make me doubt the right leaning members and the left leaning members have their own reasons for not wanting to apply existing precedent here (eg their willingness to essentially create a psuedo-exception for campaign finance regulations despite the truly disastrous effects McCain-Feingold has had on our elections).
I'm someone who thinks churches probably shouldn't have a special tax status at all, since that forces the government to make decisions about the difficult question of "what even is a church anyway", so maybe I'm not the best person to answer this. That said, here's my best stab at it.
The problem here, like I alluded to above, is figuring out what is and isn't a church, and how to implement the concept of "separation of church and state". In a lot of ways this is also the core of issues around whether, when, and to what extent corporations have free exercise rights, but it's at least a little simpler when we're talking about something that straightforwardly claims to be a church. The basic conclusions that we've come to are (1) we mostly trust the self-identification of organizations that claim to be religious, and (2) we allow these organizations to disengage from the tax system to some extent, but (3) if an organization starts to directly engage in advocacy about how and by whom the government should be run, that sure looks a lot like a political party, for which we do not allow the same level of tax disengagement. The question is how we can distinguish between organizations that are actually religious, whatever that means, versus organizations that are just opportunistically trying to claim the extra leeway we give to religious organizations, in a situation where we are trying to be cautious about drawing too small a circle around what is "genuinely" religious conduct.
If I preach that the church should use a portion of its tithes to purchase goods that the paying members have a need for, and then distribute those goods according to the value of the tithes, and that the rest of the tithing income should be used to compensate church functionaries handling the logistics of all this, then it starts to look like I'm just running a store that I named "church" for whatever reason. In the case of political advocacy, we know that religion is a source of ethical guidance for many people, and ethics obviously inform political policy choices, so we can't make a distinction based on the mere fact that a policy is being discussed. Consistently suggesting that people vote for specific candidates in specific elections, though, is the core identifying feature of a political party, which we know is a different kind of thing. So in this case, it's not that churches are forbidden to speak about candidates for office, exactly, it's that the speech is being taken as an admission that the organization is not in fact a church. Sort of a civil version of "speech integral to criminal conduct".
And if your response boils down to "but that's basically the same thing" then, well, that's why the government should probably prefer not to categorically exempt certain kinds of organizations from general laws.
The IRS does look for 'fake pass throughs'. When you as a tax payer report giving you certify that you aren't receiving a benefit. If the church buys goods and gives them to tithers in proportion to the tithe, you are well over that line. You can still call yourself a church, but the giving isn't tax deductible. (When people give to our church to a specific pastor, that gift is not tax deductible (usually we return the check in that case, but if we accepted it we would mark it as not tax deductible)).
Having 501c status doesn't guarantee all giving to the 501c is tax deductible.
Bob
Fair point. That example was overbroad. The more general question of "what is a church" is still relevant to the underlying issue, though. After all, if you donate to, say, the SPLC, what benefit you receive from your donation is at best a fairly abstract one, most likely pretty removed from your daily life. Likewise the American Cancer Society, or a local community center. These organizations are non-profits, but they're not churches, and they're subject to more restriction in terms of their activities (I think, anyway - I tried to look deeper and have to an extent joined you in your initial confusion) and more scrutiny when it comes to their financing (this seems to be definitely true, or at least ProPublica makes confident claims to that effect). How do we tell the difference between ACS or the EFF and a church? It's an important question, because the FRC is right there already claiming that there is no difference.
(As far as tax law specifically - the IRS documentation on this subject is frustratingly unclear. All churches and charities are definitely 501(c)(3) organizations, and all 501(c)(3) orgs are prohibited from intervening directly on behalf of a candidate or political party, but that's not the same thing as lobbying, which they're allowed to engage in "some" of. And things like legal briefs or interactions with executive agencies appear to be explicitly exempted from both of those activity categories, despite being pretty near the core of the mission for things we would colloquially call "political advocacy organizations". All that said, something like ACS is also a 501(c)(3), so there's some subcategorization going on in there that the IRS is being cagey about. There's also persistent reference to other, unmentioned kinds of tax-exempt organizations besides 501s and 527s, which I think are formal political parties and the like. No doubt the tax lawyers are as uncomfortable as I am getting involved here.)
This sort of question, about what exactly we mean when we talk about "religious activity" or "religious belief" has been bugging me for a while. As I see Christian nationalists start to get more blatant in their efforts to push this country in a theocratic direction, I'm starting to feel like the concept of separate magestaria for church and state points in the direction of some important civic needs but fails to squarely capture them. At the same time, I am not a religious person, and so I'm very uncomfortable trying to draw a line in a conceptual space that just isn't much part of my life, at least the way our society frames things.
I'm confused. I know a lot of churches that take a political stand and it doesn't affect their tax status. Ours doesn't, but that's for theological reasons, not legal.
The Johnson ammendment (as I understand it) doesn't prohibit taking an issue stand (we are for/against trans-rights) but does prohibit direct exhortations to vote for specific candidates w/o giving up preferential tax status (not sure if that's only federal elections or if not how referendums are handled). Practically that's not a problem for most mainstream faiths but in principle there could be a faith which believes that God wants you to vote for Donald Trump and that must be explicitly preached from the pullpet.
As noted above it's not enforced much so in practice you have to be blatant for it to matter. As long as a church only talks about it indirectly (think about abortion etc when you vote next week) it's not going to practically matter. But it's still obviously inconsistent and should be struck down on a facial challenge -- though I fear it won't.
Skip the boring stuff. You should discuss "prurient interests" in depth.
Skip the boring stuff? As in glance over the whole, entire article. Lol
Anyway, what precisely do you mean by "prurient interests"? In your own words.
Shalom
The 1st amendment has a very straight forward meaning. I don't think we need lawyers and political pundits "deciphering that meaning", yet here we are! (Not that I mind, of course)
Shalom
Excellent explanation.
I learned something from this, thank you for writing it
So is the common bad metaphor of "falsely shouting fire in a crowded theater", if taken extremely literally, an example of the rule about expressive conduct?
If I actually cause an accident where people get hurt storming out of a theater, the government can punish me because they're not punishing my speech based on the content of a message I'm trying to convey, they're punishing me for the action of causing an unnecessary panick that hurt people. Is that somewhat accurate?
Jason LaBar, the public defender who represented Bryan Kohberger in Pennsylvania was quoted as saying this:
"People are too free to express their views without repercussions... and in this case, a lot of people have already expressed either guilt or innocence and really neither helps either the prosecution or defense."
Can you make sense of this? He seems pretty free to say people are too free.
https://www.newsweek.com/bryan-kohberger-court-today-live-updates-news-1773247#live-blog-23240
Kohberger Won't Get Fair Trial In Idaho, Public Defender
I have not studied law, but I once participated in a long argument with an attorney who had urged that Congress reinstate the Fairness Doctrine, which requires broadcasters to present opposing viewpoints to matters of public interest. I took the position that the Doctrine was (or should be) a 1st Amendment issue because the Doctrine, instead of prohibiting political speech, *compelled* it. It seemed to me that compelling political speech was no less a violation of the 1st Amendment than prohibiting political speech.
I can't see how any of the exceptions to the 1st Amendment you discussed apply here. Has this issue ever been addressed by the courts?
Yes. The theory behind the Fairness Doctrine, accepted by the Supreme Court in 1969, was that the government owned the limited broadcast frequencies, and when it allocated those limited frequencies to broadcasters, it could require them as a condition to provide multiple viewpoints. It’s vulnerable now because (1) very little is broadcast vs. on cable or internet, so there aren’t limited frequencies, and (2) the modern Court is less likely to accept that logic anyway.
https://supreme.justia.com/cases/federal/us/395/367/
Thank you! Clear explanations, in layperson's terms, and including relevant references are of utmost importance to those of us who are willing to be educated, but don't have the extensive background in the subject material that an expert does. I found this summary to be very informative and easy to digest.
Maybe it is confusing because by its own terms, the First Amendment only applies to Congress.
That’s a separate subject. But one I’ll address eventually.
I don’t think it applies only to Congress in the literal text.
Another thing worth clarifying: the concept of “protected speech”. Some non-excepted speech is more protected than others (political speech, for instance).
We are a government made up of rules and standards and their application. This makes sense to me now. Thank you for slowing it down and making clarity. Happy New Year.
That was an exceptional attempt but I doubt it was successful for a lot of people.
Some otherwise intelligent people think First amendment means they can say anything, anywhere about anyone, free from consequences.
What it really means is your rights all stop where my nose begins.
For instance if someone wants to say hateful and hurtful things in a forum, on a street corner, or in a bar, I can walk away. But if you are in my doorway on my property, then in Texas, those are fighting words, and I have the right to protect myself physically. You are up in my nose, expect me to evict you you.
A friend who was losing an arguement in my back seat, while I was attempting to get directions from another friend on the phone. Screamed at me about the First Amendment. I stopped the car, pulled her out and told her to yell at anyone who would listen. I then called her husband and told him where he could pick her up.
Time and place...and I am not a governmental entity.
My car and home are not public spaces, like a internet forum, they are private spaces, subject to the rules of the owners.
I embrace Elon's right to waste 40 billion, on a dead bird. But the reality is that forum had become a verbal donniebrook much as the back seat of my car became the night I put an old friend out on a curb. His overpriced attempt to create a safe space for him and his bigoted friends, was the nail in the coffin of the poor little bluebird of happiness.
But it was a blessing for Medium, substack, Post, and Mastodon, and even for Facebook.
What is truly sad, is it is not just regular people, it is apparently lawyers. More than one lawyer has tried to compare the women's march against Kavanuagh and the BLM marches to Jan. 6 Seditious riot.
So I guess we should be patient with your readers, if even Ivy league lawyers are clueless.
Keep tilting at that windmill, I am here for it and I applaud Don Quixote Popehat!
What are your views on doxing someone, especially trans people? I understand it is protected speech generally, but you cannot walk away from it.
Just noticed this, not sure what you are refencing here.
I as a general rule am opposed to doxing, especially for social reasons. I try not use words like he/she, or especially the most dangerous word in the English language "you". I have not been doxxed, lately, but the one time I was doxxed, I did literally walk away from it. Packed my house and moved.
But I am assuming here, the use of the word "you" is not meant to be me personally...unless you are implying I doxxed someone, which aside from one individual situation, I have never publically doxxed anyone. But we may be defining the word "doxxed" differently.
No, I didn’t express myself clearly. Not implicating you at all.
Doxxing is protected speech, and those who are the target of doxxing cannot reasonably walk away from it. Not everyone can just pack their stuff and move.
I feel that doxxing is different than someone yelling epithets in public, something you can ignore. A lot different than someone yelling out your name, address, and phone number in public.
I was interested in your thoughts on countering it. It is not illegal, and yet it wrecks people’s lives. Is that something we basically ignore because any legal measures would run afoul of the First Amendment?
On actual doxxing. This was years before that word had any meaning.
A guy on a BBS got into a disagreement with me and my husband on two different forums. He then found out that I ran one of the forums on a BBS my husband was co-owner on. He threatened to kill us and our children. Going into graphic detail, on a different forum and telling people our address and real names.
We moved. It was not easy, it was not fun, but we had a baby and a toddler.
The police would not do anything.
At the next mods meeting, the local BBS owners banned him from their sites. This late 1989.
One caveat, I live in Texas.
Legally the legality of doxxing, what it is, and when it crosses any legal lines, is largely more of a state law POV, which has gotten blurred by the internet.
So people who have one opinion on legalities based on their state, may run into confusion on terms, and lines, when speaking on an interstate communication. The whole theatre on fire concept kinda goes up in flames, when the person giving dates and times of a private plane flight, are in New York and the plane is flying from Cali to Texas. California might care, but Texas does give a fig.
ahh ok, you are sort of correct that it is not illegal.
It depends on context.
Is the information truly private.
Second is the individual a private citizen or a "celebrity".
So in the context.
If I post as I am getting on a plane a photo and say OMG, this TV star is two rows up on my Delta flight to Houston. I hope I get a chance to talk to him when we deplane at 3 pm. Courts have ruled that is not a privacy issue. Celebrities deliberately give up a certain amount of privacy as a consequence of their status.
If on the other hand, I see a victim of a horrific crime, being escorted by Marshall's for their safety to a court date, and I take that picture and give that location,...I might be in trouble. Especially if one of those marshall's or the witness dies as a result of my action.
In the case of Emol the CEO, first he has made himself a celebrity. Most CEO's keep a low profile. Emoe goes out of his way to get as much press as possible.
Second he was NOT doxxed.
He has been calling the posting of his private plane as doxxing, but flight numbers and dates and times are public info, anyone with Google can get it.
He can "literally" walk away from the plane.
Honestly I bet Emoe's biggest problem is that no one was showing up to get his autograph, and his public antics have resulted with a handful of protestors showing up with signs.
Still not doxxing.
Forget Elon, he is wealthy, and can survive readily available public info. being available.
But what about someone following a trans activist from a march, for example, and then publishing where they live, work, etc.?
That is doxxing and I would think perfectly legal.
Same for rape victims being followed from an abortion clinic.
Any remedies you can think of? Seems like protected speech.
Well, I shall have to keep my thoughts to myself. I got banned for expressing my outrage.
Again somewhat depends on what state the litigants live in.
I honestly can not think of any legal remedies. Fortunately my current health prevents me from acting on my rage.
I know it happens I have trans friends who have had to take extreme moves to protect themselves. Not everyone can find a job in Europe.
I found his explanation here very helpful. He is doing something new: explaining terms that are common perhaps in legal parlance, but not immediately clear to people like me. Sure, it’ll take more effort on my part, but it is very useful. And a far cry from the Twitter dunkathon on people who didn’t grasp it in the first attempt.
I do not disagree.