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Freedom of speech vs freedom to sell said speech

 
 
Reply Tue 17 Feb, 2004 04:09 pm
Is there any legal basis in the US to claim not only the right to freedom of speech but the right to sell said speech?

For example, a rap group may write songs about killing cops. For them to perform and distribute the song is clearly protected.

But in theory, could they be prohibited from seelling it? I'm sure there is legal basis for them to sell it but would like to know more.

I ask because I think a lot of people who take up the banner of free speech use it as a pretext to be a shock-jock for money.
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Type: Discussion • Score: 2 • Views: 2,690 • Replies: 20
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husker
 
  1  
Reply Tue 17 Feb, 2004 04:14 pm
look at Howard Stern - King of Shock
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Craven de Kere
 
  1  
Reply Tue 17 Feb, 2004 04:14 pm
Yep, I'm sure it's protected by some law. I just want to know which ones.
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fishin
 
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Reply Tue 17 Feb, 2004 04:15 pm
I'd have to dig around in cases but I'd guess that a law prohibiting the sale would be seen as an unconstitutional prohibition on 1st Amendment grounds.

The law would probably be seen as a way to limit the distribution and thereby inhibiting free speech.

I'll look and see what I can find.
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Craven de Kere
 
  1  
Reply Tue 17 Feb, 2004 04:20 pm
I'm thinking that it'd be the 1st as well. Because there's no "right" to sell anything.

But let me reword it. Instead of "sell" use "profit".

In other words, they could sell it for the cost of distribution.
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husker
 
  1  
Reply Tue 17 Feb, 2004 04:25 pm
Yeah but look at the movies & books that get recreated out of criminal activity and murder, someone profits in those cases (not supposed to be the bad guys)
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Craven de Kere
 
  1  
Reply Tue 17 Feb, 2004 04:31 pm
I'm not advocating that they stop profiting. I'm just wondering if an attempt to do so has been tried and on what grounds it was struck down.
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ebrown p
 
  1  
Reply Tue 17 Feb, 2004 04:39 pm
No.

The First Amendment is enough to protect us against such a ban.

The first Amemendment says

"Congress shall make no law ... abridging the freedom of speech, or of the press ... "

A law preventing the sale of speech that is deemed (presumably by the government) to be offensive would seem to be an example of "abridging" the freedom of speech. The fact that it mentions the "press" which is a patently commercial institution is even more clear.

This type of ban would go against the spirit of the First Amendment which, in my mind, is the bedrock of American Democracy.

The First Amendment is specifically to protect the type of unpopular (i.e. "offensive") speech that you are targeting. Think of what would happen if certain ideas couldn't be marketed and others could. This would create a inherently unfair marketplace of ideas that would certainly hurt our democracy.

Freedom of expression is sacred.
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Craven de Kere
 
  1  
Reply Tue 17 Feb, 2004 04:40 pm
I'm not going to be debating the merits of the laws. I'm just asking about the laws themselves.
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ebrown p
 
  1  
Reply Tue 17 Feb, 2004 04:44 pm
Craven de Kere wrote:
I'm not advocating that they stop profiting. I'm just wondering if an attempt to do so has been tried and on what grounds it was struck down.


Larry Flynt was protected by the First Amendment. I am quite sure these rappers will enjoy the same protection.
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Craven de Kere
 
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Reply Tue 17 Feb, 2004 04:45 pm
Thanks! That is an example I knew of but forgot (despite it's relevance). As an aside I'm not like to restrict it to rappers.

Follow up question:

What determines law priority?

For example, laws against plagiarism restrict my "free speech".

Laws against divulging technological knowhow that can be used to circumvent copyright protection restrict my "free speech".
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fishin
 
  1  
Reply Tue 17 Feb, 2004 05:09 pm
Craven de Kere wrote:
For example, laws against plagiarism restrict my "free speech".

Laws against divulging technological knowhow that can be used to circumvent copyright protection restrict my "free speech".


Neither of these laws restrict your free speech. You are fully free to plagarize or steal copyrighted info as far as the 1st Amendment goes.

You would be libel for any damages you do to anyone else in your acts though. Your rights extend only as far as the point where they infringe upon someone elses rights.
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Craven de Kere
 
  1  
Reply Tue 17 Feb, 2004 05:12 pm
Ok, but which rights come first?

The second example is really relevant.

If I were to post instructions on how to circumvent copyright technology I could run afoul of the DMCA.

In that case I've not directly done any wrong except to divulge information on how to break a law (which is, itself, illegal).

I'd say it's comparable to songs that teach how to roll a blunt or telling people to kill cops.
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fishin
 
  1  
Reply Tue 17 Feb, 2004 05:23 pm
Craven de Kere wrote:
If I were to post instructions on how to circumvent copyright technology I could run afoul of the DMCA.

In that case I've not directly done any wrong except to divulge information on how to break a law (which is, itself, illegal).

I'd say it's comparable to songs that teach how to roll a blunt or telling people to kill cops.


If you go back to the Schenk case (1920 or so. This is the famous "You can't yell "fire" in a crowed theatre" case..) thw USSC laid out that the specific circumstances in effect at the time of the "offense" would have to be considered in determining if the issue is protected by the 1st Amendment or not.

In your copyright instance it would depend on exactly how the instructions were worded, who it was released to, where it was released, etc..

The DeCSS case is a good example. The kid was sued (i.e. post publication - not prior) for copyright infringement. In that case teh CA Supreme Court said "preliminary restraint on publication of a computer program only in very narrow circumstances" and the DCA eventually dropped the case admitting they didn't have any grounds to maintain it.

But again, they sued under copyright infringement law - not on any 1st Amendment issue.
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Craven de Kere
 
  1  
Reply Tue 17 Feb, 2004 05:29 pm
But obviously they can't sue under the first amendment. But one could say that said laws infringe...

Bah, I'm splitting hairs over words. I'm sure they use more common sense in the courts.

Thing is, I see a parallel in the copyright infringement cases. It's not just illegal to steal copyrighted work but also to disseminate information on how to do it.

By that reckoning the Anarchist's Cookbook would be illegal (if it had had any useful information).
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fishin
 
  1  
Reply Tue 17 Feb, 2004 05:37 pm
Craven de Kere wrote:
But obviously they can't sue under the first amendment. But one could say that said laws infringe...


I think this is a part of a larger misconception about our rights.

People tend to think that they are protected from them ever being infringed upon but that isn't and never has been the case. If you or I lived in a vacum then it might be but as soon as you put two people in the same place then you have competing rights and that's what the courts deal with. Most of it is now assumed in case law but things come up all the time and it's up to the Courts to decide where the line gets drawn.

If I pee in a stream when I go fishing I might be infringing on someone else's right to clean water. In some places they make that known ("No peeing in the stream!" signs). In other places I take my chances. Wink
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Craven de Kere
 
  1  
Reply Tue 17 Feb, 2004 05:44 pm
I understand that. Sigh.

Look, if something like telling someone how to burn a copyright protected CD onto their harddrive is a crime, (in which one right (copyright protection) superceded the other(free speech)) then I don't think it's unreasonable to compare it with telling people how to kill each other and advocating it.

I've never said that rights should not or do not infringe on each other. I've only noted that rights about trivial copyright issues are deemed important enough to infringe on free speech while people dying isn't enough to infringe on the free speech of those who advocate their death.

I'm wondering why.

If I had to answer my own question I'd say that the DCMA is unjustified. Or that the difference is that in the case of divulging technical info one is enabling more so than when one says "kill the cops".
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ebrown p
 
  1  
Reply Tue 17 Feb, 2004 05:52 pm
Craven de Kere wrote:

Thing is, I see a parallel in the copyright infringement cases. It's not just illegal to steal copyrighted work but also to disseminate information on how to do it.

By that reckoning the Anarchist's Cookbook would be illegal (if it had had any useful information).


I don't think this is correct.

Most universities, for example, offer courses in cryptography. To do cryptography well (i.e. to make your software secure), you need to know how to crack encryption schemes. I don't think it is either productive or legally possible to prevent the dissemination of this type of knowledge.

There are many ways to disseminate information on how to steal copyrighted work. Last year, there were CNN stories about how a kid defeated the new Sony (I may have the details wrong) CD copy protection with a black permanent marker. These strories gave me the information I needed to do the same thing. I think these were protected.

I can also tell you how to rip a CD onto your compter and how to burn a new CD. This information allows anyone with minimal intellegence to copy CD's illegally. But, there are perfectly legal reasons to do either of these things. Should I be prohibited from teaching these skills?

I think the DMCA is deeply flawed. I think that it will continue to have problems in the court.

And remember, 30-some years ago companies were trying to ban VCR's because they could be used to steal copyrighted work.

I may be misunderstanding your points. If so, could you give some concrete examples?
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Craven de Kere
 
  1  
Reply Tue 17 Feb, 2004 06:07 pm
ebrown_p wrote:

Last year, there were CNN stories about how a kid defeated the new Sony (I may have the details wrong) CD copy protection with a black permanent marker. These strories gave me the information I needed to do the same thing. I think these were protected.


I remember this article. I also vaguely remember CNN making a point of telling that it had already been dissseminated.

They made a point of "reporting that it had been disseminated".

Quote:
I think the DMCA is deeply flawed. I think that it will continue to have problems in the court.


I agree.

Quote:
And remember, 30-some years ago companies were trying to ban VCR's because they could be used to steal copyrighted work.


Yep, another good example. I think the "d ual-purpose" angle was a big factor in striking that down.

Quote:
I may be misunderstanding your points. If so, could you give some concrete examples?


I haven't really had points, just questions. I'm not really trying to debate the merits of any of the laws.

I think my question has been answered. I think the law I was asking about really would be the first.

Now I disagree that the First should also protect profits but like I said, I don't plan to get into the merit.
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fishin
 
  1  
Reply Tue 17 Feb, 2004 06:08 pm
Craven de Kere wrote:
Look, if something like telling someone how to burn a copyright protected CD onto their harddrive is a crime, (in which one right (copyright protection) superceded the other(free speech)) then I don't think it's unreasonable to compare it with telling people how to kill each other and advocating it.


I don't think it's unreasonable either. I was just expounding.

Quote:
I've only noted that rights about trivial copyright issues are deemed important enough to infringe on free speech while people dying isn't enough to infringe on the free speech of those who advocate their death.

I'm wondering why.


What is "trivial" to you may or may not be to someone else. But there are other considerations to the whole thing. A copyright infringement is relatively easy to prove if it actually happened so there are lawsuits over it and people who know they could be caught and charged.

But how do you go about proving that one single song is what caused another person to kill? You don't have a fixed trail to chase after here. You get into what influenced who and there are millions of things that influence every one of us. That makes it almost impossible to pin a death on a song or "artist" so you don't see the lawsuits and those that do get started never get anywehere.

I dunno. Maybe I'm not explaining my thoughts here well...
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