Freedom of Speech

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Freedom of Speech vs HateSpeech

Disclaimer: I am discussing FreeSpeech in the U.S.A only.

I'm sure you've heard this before on the internet: "Free speech man! I can say what I want!". You may have shaken your head and walked away, you also may have started to respond and argue on the internet. And, well, we all know how well that works.

Whatever this internet troll has said, the fact of the matter is that they are almost always correct about their right to Free speech. It does not matter if you are offended. I'm sorry, but it doesn't. If something as simple as being offended by something someone else has said (which is very easy) constituted a violation of the First Amendment, then we'd all be jailed by some thin-skinned person with a lawyer. And while I don't always enjoy seeing things that offend me, I am fully aware that people can voice their own opinion, so long as it is simply voicing it.

Where you step into the areas outside of your rights is when your words become a call to action that can harm someone. The Supreme Court only counts speech as hateful if it leads to "imminent violence". For example, in the case of Synder v. Phelps in 2011, the Westboro Baptist Church (WBC) was protesting with signs that offended people (myself included), it was brought to court and you know what? The Supreme Court sided with Phelps, the head of the WBC. Protecting their constitutional right to say the things they did regardless of whom they offended. This decision was made because the WBC was not promoting any sort of imminent violence.

Sometimes you might hear a funny quip in a cartoon or western show calling out to another that "them's be fighting words!". Oddly enough, this is actually one of the first things which Freedom of Speech does not protect. Fighting words are inflammatory speech designed to cause the hearer to retaliate back, typically in a physical manner or in some way that would be injurious to themselves. For example, if you walk into a black neighborhood and start calling them all racial slurs, not only are you likely a racist, but you're inciting them to attack you: fighting words in the truest sense. In that case, you are not protected by a Freedom of Speech for being a bigot, and are engaging in Hate Speech.[1]

Besides fighting words, threats, child pornography, obscenity, defamation, invasion of privacy and intentional emotional distress all fall into the category of exclusions of Freedom of Speech. Let me give an example of each:

Not all of these are criminal offenses. Defamation, invasion of privacy, and intentional infliction of emotional distress are what's known as 'Torts': which are civil wrongs that you can be sued for as they breach one of your rights. So you'll get your pants sued off for defaming someone, but you're not likely to go to jail for it (is my understanding).

There's a lot more to cover here besides just Torts, such as public employee speech, student speech, government speech, dealings with national security, and even your voice in patent law. But I'm really more focused on the internet culture around free speech than this. And while obviously these things are related, I don't want to go to far down the legal rabbit whole. So let's get back to the topic we started with armed with our new knowledge: arguing with someone on the internet.

Let's take youtube and news article comments as an example. On many controversial videos or stories people tend to pop out of the cracks and voice their opinion. This is a good thing. Talking and debating articulate points is generally beneficial and educational to all involved. However, this is the internet, and therefore you're going to run into something anyone under the age of 30 will know about. Trolls.

A troll is someone who attempts to get a rise out of people for personal amusement. There's nothing inherently wrong with this, it's not uncommon to see siblings irk one another or even schoolchildren tease. In my opinion, teasing is an important part of anyone's growth as it teaches one to take criticism, build up a bit of a thicker skin, and in general prepare for the much harder situations down the line like messing up and needing to own up to it. A simple troll who hops onto a forum and starts playing devil's advocate and saying silly things is not in anyway morally wrong. No matter how frustrating you find it. Why? Because of fighting words. Because there is no threat of imminent violence. Because in the United States v. American Library Association and in Reno v. ACLU, the full protection of the 1st amendment extends to the internet.

This does not, however, give a troll the freedom to go onto a person's video and begin commenting about things that may cause emotional distress. This is an extremely grey area, for example, one does not always know what might cause someone distress. The thing about torts, besides being a funny word, is that they can often be unintentional or due to negligence. An emotional distress can be caused by intentional OR reckless disregard, and both of these are sufficient for a tort case to go through.

The other grey area here is on the side of the distressed party, the reaction must be severe. Which is based upon the intensity, duration, and any physical reactions to the stress. Almost always, mental disorders that have been documented by a mental health professional are required for an actual tort case. Otherwise you're pretty much told, correctly, that someone criticizing you on the internet is not a crime.

So what does this all mean when it comes to our youtube arguing troll? Or even to the unknowing internet browser who happens to comment something that 'triggers' someone? Is it harassment? Should they be sued? Is there more than a misunderstanding here or an accidental infringement? Well, one of the elements of the tort is that the actions the defendant (the one who has been accused of causing emotional distress) took were extreme or outrageous. A simple bit of clever prauding at peoples soft spots to get a rise out of them is not extreme, so it doesn't fall under that. Not to mention that the actions of the troll have to actually cause emotional distress, not the actions of a large group of people, but the actions of that specific person.

Now what about something else on the internet? Parody? You see it all the time, autotuned videos of speeches, silly comics or drawings of public figures, even fanfiction sometimes. Are these examples of Hate Speech, slander, or libel? Once again, the answer is no. Parody is actually protected by the first amendment, and was in the case of Hustler v. Falwell when the surpreme court decided public figures do not have protection from parody. One of the things people seem to not realize, is that the moment you create a youtube video you have put yourself out there as a possible limited public figure.

This is not victim shaming, a limited public figure is anyone who engages in actions which generate publicity within a narrow area of interest. Guess what? A youtube channel or show falls into this category. Therefore parody of youtubers is allowed, and hell, sometimes you get some pretty amusing stuff from it. This also brings in the fun realm of caricature and other political art. People get pretty creative about these things, and I think it's quite humorous and a good thing, afterall, anyone with a good sense of humor will recognize the parody and laugh along before getting back to business of discussing whatever niche they're in.

I've talked about the innocuous type of troll. Not the kind of person who goes out of their way to attack someone. I don't refer to these people as trolls, because that's not anywhere close to my definition of it. A troll is just someone who finds amusement in riling someone up for "the lulz", and I have no problem with that and find it pretty funny sometimes. But someone who verbally attacks and harasses someone is not a troll, they are a harasser. And should be called as such. Language is very important as it defines how we think, express ourselves, and justify our actions.

So now you're a little more educated, about freedom of speech. And so I want to ask you now, what do you think this video? Do you believe an April fools joke was meant to cause emotional distress? Do you believe Jensine Anahita was justified in calling Title IX? If you've read this all the way through, I wonder if you agree with me when I say that jokes, parody, and satire is protected by the 1st Amendment. Do you believe that the memo sent around by Linda Bennet was a good intention or thought policing? Chat in the comments below about it, follow the 1st amendment and try not to troll each other too much ;)

If I've gotten something wrong, feel free to point it out along with a relevant source and I'll revise.

[1] Another example of fighting words is calling any sort of cultural identity dead and dehumanizing said culture. A la #GamerGate. But I digress since this piece is not about #GamerGate.

[2] A true threat must have probably cause and intent behind it, simply saying something typically doesn't net you a jailcell, as shown in [Watts v. United States]

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