Will the Real First Amendment Please Stand Up?
Ram Samudrala
Has anyone read the online book at <http://www.krusch.com>? I think
it's great, well-written, and very witty. I particularly never
thought of Federal Copyright Law being a violation of the First
Amendment (i.e., language wise---I've always thought it was against
the notion of free speech and expression).
It's clear that the courts have carved out various exceptions to the
First Amendment, and the people have let them. It's also clear the
way things are, Krusch's arguments take on, what is considerd a
"literal" or "absolutist" view (but in my opinion, the only correct
view) of the First Amendment.
I was wondering what people thought of the book, and in general, of
the argument that Federal Copyright Law is a violation of the First
Amendment? Of course, there's some ambiguity in the words "speech"
and "press" in the First Amendment, but assuming that Federal
Copyright Law abridges those freedoms, isn't the conclusion inevitable?
I highly recommend this book. At the very least, it brings to light
some very interesting Supreme Court cases, and at the best, it'll make
you think about how the legislative and judiciary bodies have amassed
more power than they're supposed to have (according to the
U.S. Constitution) over the years.
--Ram
m...@ram.org || http://www.ram.org || http://www.twisted-helices.com/th
Remember, proteins don't have a folding problem; it's we humans that do.
Andrew C. Greenberg
> Of course, there's some ambiguity in the words "speech"
> and "press" in the First Amendment, but assuming that Federal
> Copyright Law abridges those freedoms, isn't the conclusion inevitable?
Excuse me, I am going to presume you didn't mean by "the conclusion" the
proposition that Federal Copyright Law violates the first amendment. If
so, this sentence is entirely vacuous. What did you mean?
--
just another view,
Andy Greenberg (wer...@gate.net)
Carlton Fields
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>In article <50ktf3$n...@hecate.umd.edu>, m...@ram.org wrote:
>> Of course, there's some ambiguity in the words "speech"
>> and "press" in the First Amendment, but assuming that Federal
>> Copyright Law abridges those freedoms, isn't the conclusion inevitable?
>Excuse me, I am going to presume you didn't mean by "the conclusion"
>the proposition that Federal Copyright Law violates the first
>amendment. If so, this sentence is entirely vacuous. What did you
>mean?
Sorry, it's an ill-constructed sentence. By conclusion, I mean that
the two things are inconsistent with each other. The last paragraphs
in Krusch's chapter on this talks about the nature of this
inconsistency.
--Ram
Hey! Aren't you scared of me Christ? Mr. Wonderful Christ! You're a
joke, you're not the Lord, you are nothing but a fraud. Take him away
he's got nothing to say! ---King Herod in Jesus Chris Superstar
Seth Finkelstein
In article <50ktf3$n...@hecate.umd.edu> m...@ram.org writes:
>Has anyone read the online book at <http://www.krusch.com>? I think
>it's great, well-written, and very witty. I particularly never
I skimmed over it. I wasn't real impressed, but I could see how
someone else might be. It had a strong nutty flavor to me, like those
tracts as to why income tax is Unconstitutional, or the people who run
around babbling about the UCC or admiralty law (especially turning
Federal-State division into a veritable anti-Federal obsession).
The author indeed writes well, and is clearly well-read, but the
stuff is just a little too far into the territory of being a crank rant
for my taste. But you might have to know some detail about the issues he
discusses, which are not part of the ordinary back-and-forth on free
speech arguments, to feel that.
>the argument that Federal Copyright Law is a violation of the First
>Amendment?
I hate it.
Not because I have any love for copyrights, but because this
argument is very commonly made by an advocate of criminalizing "racist"
or "sexist" or "sexual" speech. *Schematically*, it goes "The First
Amendment says no abridgment of speech. But copyright law restricts what
you can say, and it's widely accepted. Therefore, there's no problem
with any other sort of restrictions on what you can say". Of course,
they don't do it as starkly, but that's the gist. It's a subset of "All
words can't be protected (death threats, fraud, copyrights), so free
speech has no meaning".
Whenever I see that stuff, I know I'm in for a long, tiring, haul
in talking about the differences between creating a property right
in a certain patterns of words, and forbidding whole areas of ideas, and
why these are not equivalent. And that "free speech" does not mean
"anything which is a word". And exposing the argument structure above
from what's typically several paragraphs of hidden assumptions and
(deliberate?) confusions.
So I hate it.
I think it's an extremely bad idea to head-butt the First Amendment
and copyright directly against each other, on several fronts. It gets
all the net.libertarians rushing to the defense of property. The
would-be censors run the above line. Almost all the legal people
start in on how the law has lived with this forever. And so on.
There's a genre of sophisticated argument to be made if you can
do the legal cases with enough skill, but "Federal Copyright Law is a
violation of the First Amendment" isn't it.
I say stay away from this area unless you can argue down
Libertarians, MacKinnonites, and Lawyers all together. I sure wouldn't
want to try to do it.
--
Seth Finkelstein se...@mit.edu
Disclaimer : I am not the Lorax. I speak only for myself.
(and certainly not for Project Athena, MIT, or anyone else).
Ram Samudrala
Seth Finkelstein (se...@athena.mit.edu) wrote:
> I skimmed over it. I wasn't real impressed, but I could see how
>someone else might be. It had a strong nutty flavor to me, like those
>tracts as to why income tax is Unconstitutional, or the people who run
>around babbling about the UCC or admiralty law (especially turning
>Federal-State division into a veritable anti-Federal obsession).
I think this is different because unlike the tax law thing (which I've
read a lot on as well), which relies on some assumptions, this work
actually relies on what is written and can be verified (with fairly
extensive documentation). The author also points out (in the private
mythology section) that the way things are is different from the way
things are written. Besides, since it's all written in an humourous
vein, it's hard to take it as a rant. In any case, it's no more a
rant than the Federalist papers are a rant. I think the main feature
of this book is to illuminate, rather than to accuse or rally.
>argument is very commonly made by an advocate of criminalizing "racist"
>or "sexist" or "sexual" speech. *Schematically*, it goes "The First
>Amendment says no abridgment of speech. But copyright law restricts what
>you can say, and it's widely accepted. Therefore, there's no problem
>with any other sort of restrictions on what you can say".
I think the argument made here is that the two are inconsistent.
There's no argument like the one you describe above at all. Further,
it's only Federal Copyright Law, since the First Amendment only
restricts Congress. Copyright law can still exist at the state
level. Finally, to make the kinds of arguments you make, all one has
to do is invoke the obscenity statutes. It's more relevant, and
obscene speech is criminally punishable, no?
> I say stay away from this area unless you can argue down
>Libertarians, MacKinnonites, and Lawyers all together. I sure wouldn't
>want to try to do it.
My intention was simply to find out what others thought of it.
But I've had arguments with all these people about copyrights even
without this, and if anything, the First Amendment argument would only
be a very very small point since I try not to rely on the
U.S. Constitution as the supreme arbiter of right and wrong. <-:
--Ram
He is most powerful who has himself in his own power. ---Seneca
Rahul Dhesi
In <50lki8$r...@senator-bedfellow.MIT.EDU> se...@athena.mit.edu (Seth
Finkelstein) writes:
>In article <50ktf3$n...@hecate.umd.edu> m...@ram.org writes:
>>Has anyone read the online book at <http://www.krusch.com>? I think
>>it's great, well-written, and very witty. I particularly never
> I skimmed over it. I wasn't real impressed, but I could see how
>someone else might be. It had a strong nutty flavor to me, like those
>tracts as to why income tax is Unconstitutional, or the people who run
>around babbling about the UCC or admiralty law (especially turning
>Federal-State division into a veritable anti-Federal obsession).
I find that rebuttals to such allegedly crank arguments are almost
always ad hominem. On the face of it, such ad hominem attacks are well
deserved because to go any further would be a wasting time on frivolous
endeavours. But in fact, I find that such crank arguments generally
quote the constitution's original language
and ignore court decisions that ignore the
constitution's original language
and there is a minority of people, which includes me, that believes that
this is the right approach. Of course this approach will not work in a
court of law -- but Usenet and the Internet are not courts of law. The
Krusch book makes perfect sense to me -- which doesn't mean that it
would make sense to practising judges and attorneys, who are after all
bound by legal precedence in a way that Usenetters in their native
habitat definitely are not.
It is good to recognize that the way judges operate is to:
- look at the facts
- decide what is the "right thing to do" independent of the law
- find a way of rationalizing that decision using available
legal precedence
- and make a ruling as close to this alleged right thing as possible while
still taking steps to ensure that the ruling will be overruled on
appeal
It's also good to recognize that this is the way we *all* operate,
within the respective frameworks that bind us.
Notice, however, that the Supreme Court, unlike every other court,
doesn't have to worry about being overruled on appeal.
Which explains a lot.
--
Rahul Dhesi <dh...@rahul.net>
"please ignore Dhesi" -- Mark Crispin <m...@CAC.Washington.EDU>
Andrew C. Greenberg
> It is good to recognize that the way judges operate is to:
>
> - look at the facts
> - decide what is the "right thing to do" independent of the law
> - find a way of rationalizing that decision using available
> legal precedence
> - and make a ruling as close to this alleged right thing as possible while
> still taking steps to ensure that the ruling will be overruled on
> appeal
And you didn't just engage in precisely this form of analysis? Indeed,
your legal hermeneutics didn't even involve looking at how other judges
before you had passed on the same text! How else would you suggest we
are to interpret texts, anyway, without being subject to this same criticism?
Can any system of making judgments on the law EVER avoid this result?
Indeed, there is a jurisprudential school of thought, called "Legal
Realism" that takes this view. Indeed, the modern version of this, sort
of
"Legal Realists meet Derrida" is called Critical Legal Studies, and Crits
now represent a substantial percentage of most law school faculty.
While I do think that the 1st vs. Copryright is well-worthy of derision as
a kooky idea, and indeed that you are being somewhat hypocritical by
criticizing judges for engaging in legal reasoning processes in which you,
yourself, routinely engage, Legal Realism and, to an extent, Critical Legal
Studies are well-regarded jurisprudential theories.
On the other other hand, LR and CLS is not nihilism. It does not assert
that the law is illegitimate or unworkable, or both (although some LRs and
Crits do take that position or are nihilsts).
Andrew C. Greenberg
> quote the constitution's original language
>
> and ignore court decisions that ignore the
> constitution's original language
>
> and there is a minority of people, which includes me, that believes that
> this is the right approach
.
If I wanted to take your position, I'd probably have to adopt that view
as well.
But even if you are going to go out into that great intellectual
good-night, you should probably pause, and recall that
1) the plain text of
the constitution espressly embraces a copyright law,
2) that many (I think all)
of the original states had a declaration of rights, most including something
quite similar to the 1st prior to the passage of the constitution and the
BOR, and finally,
3) that one of the very first pieces of legislation adopted
by Congress was a Copyright bill.
Then, let's not lose track of the idea/expression dichotomy.
These present a long enough row to hoe, intellectually speaking, even if
you chose to dump these principal sources of law.
Then, let's not forget Article III, and all that lovely language in the
Federalist talking about the Courts as the ultimate arbiter of what the
Constitution is to mean.
Nah, sorry, your approach just ain't the American way. You may be arguing
what you think should be the law, but you aren't arguing the law of the
Constitution.
Rahul Dhesi
In <werdna-0509...@192.0.2.23> wer...@gate.net (Andrew C.
Greenberg) writes:
>But even if you are going to go out into that great intellectual
>good-night, you should probably pause, and recall that
>1) the plain text of
>the constitution espressly embraces a copyright law,
True. This contradiction needs to be resolved. In my opinion the most
graceful way of resolving the contradiction is to distinguish between
original speech and copied speech, and give the latter First Amendment
protection only when no copyright violation has occurred.
What we should not be doing is reinterpreting the constitution to
create new contradictions that never existed to begin with.
Let me remind all readers of something:
When you observe a conflict between rights,
you have found a flaw in your philosphy.
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>1) the plain text of the constitution espressly embraces a copyright
>law,
Well, doesn't the plain text of the Constitution also (implicitly at
least) endorse slavery?
>2) that many (I think all) of the original states had a declaration
>of rights, most including something quite similar to the 1st prior to
>the passage of the constitution and the BOR, and finally,
Your argument here is?
>3) that one of the very first pieces of legislation adopted
>by Congress was a Copyright bill.
Was this before or after the passage of the Bill of Rights?
>Then, let's not forget Article III, and all that lovely language in
>the Federalist talking about the Courts as the ultimate arbiter of
>what the Constitution is to mean.
That's new to me. Can you tell me which Federalist is that has
the language about the courts being the ultimate arbiter of what the
Constitution is to mean? Thanks.
--Ram
I had a dream, when I was young, a dream of sweet illusion.
A glimpse of hope and unity, and visions of one sweet union.
But a cold wind blows, and a dark rain falls, and in my heart it shows,
look what they've done to my dream. ---Queen
Seth Finkelstein
In article <50lpsn$9...@hecate.umd.edu> m...@ram.org writes:
>Seth Finkelstein (se...@athena.mit.edu) wrote:
>> I skimmed over it. I wasn't real impressed, but I could see how
>>someone else might be. It had a strong nutty flavor to me, like those
>
>read a lot on as well), which relies on some assumptions, this work
>actually relies on what is written and can be verified (with fairly
It's inverted, and he has a lot of common censorship arguments
inverted, but it strikes me as the same flavor of nut.
>extensive documentation). The author also points out (in the private
>mythology section) that the way things are is different from the way
>things are written.
Even a broken clock is right twice a day. And the
anti-income-tax people have occassionally said something worthwhile. I
still don't think highly of their arguments.
>Besides, since it's all written in an humourous
>vein, it's hard to take it as a rant.
Not all rants are poorly-written. The better ones employ humor as
a bridge over substantive failings.
>In any case, it's no more a rant than the Federalist papers are a rant.
But the Federalist papers have a lot more significance to them.
>I think the main feature
>of this book is to illuminate, rather than to accuse or rally.
I don't think it's good illumination, rather like a black light.
Sure, some stuff looks cool and fascinating, but it's not good for your eyes.
>>argument is very commonly made by an advocate of criminalizing "racist"
>>or "sexist" or "sexual" speech. *Schematically*, it goes "The First
>>Amendment says no abridgment of speech. But copyright law restricts what
>>you can say, and it's widely accepted. Therefore, there's no problem
>>with any other sort of restrictions on what you can say".
>
>I think the argument made here is that the two are inconsistent.
And they are inconsistent *because* of making the assumption
that speech == any word, to make it very short. This argument is more
annoying than useful, in my view.
>There's no argument like the one you describe above at all. Further,
Yes, he's using the "speech == any word" form to attack
copyright. This is the *opposite* of the common censor's trick, which is
to use copyright and "speech == any word" to try to confuse people into
accepting content-based bans. I see the difference. But I was telling you
that I hate the First Amendment vs Copyright stuff *because* it's so
frequently seen in long-winded censorship advocacy. I don't think it's a
much of an anti-copyright argument in the simplistic formulation, and I
don't like to see it stirred up because the way it's often used. Little
gain, lots of pain.
>it's only Federal Copyright Law, since the First Amendment only
>restricts Congress. Copyright law can still exist at the state level.
Now this is where I think you've been misled by his ranting.
What happens with Free-Speech provisions in the State Constitutions? Don't
they, similarly, override State Copyright law? You'd think this would
occur to him, but he's so intent on doing an anti-Federal fandango that
it never seems to cross his mind. It reads like he's trying to brush
under the rug the absurdities of the "speech == any word" stance by
claiming all the problem are really for the States to deal with, but
many State have exactly the same problems with such law. It's just a way
for him to do a rant on the in-his-view-unconstitutional Federal stuff,
but ducking the philosophical difficulties by saying "States!"
>Finally, to make the kinds of arguments you make, all one has
>to do is invoke the obscenity statutes. It's more relevant, and
>obscene speech is criminally punishable, no?
The difference is that obscenity is supposed to be "no ideas",
hence the defense of some value. The copyright bit, in a censors hands,
is trying for "speech which is significant ideas, but in society's
interest to ban/restrict/punish". He wants to go after copyright, which
is unusual. But while I sympathize with his dislike, I can't credit his
arguments in this context.
>> I say stay away from this area unless you can argue down
>>Libertarians, MacKinnonites, and Lawyers all together. I sure wouldn't
>>want to try to do it.
>
>My intention was simply to find out what others thought of it.
OK, I don't think very much of it. It's cute in places, but I
wouldn't recommend it to anyone, and I think you could pick up a lot of
nonsense from it.
Barry Krusch
Seth, rather than respond to ad hominem such as rant, I'll just quote from
my preface:
Would the Real First Amendment Please Stand up?
attempts to blast into smithereens the following syllogism:
1) The Constitution is the Supreme Law of the Land, and
2)The First Amendment is part of the Constitution, therefore
3) The First Amendment is the Supreme Law of the Land.
Do you agree or disagree with proposition 3?
jputnam
Barry Krusch wrote:
> Would the Real First Amendment Please Stand up?
> attempts to blast into smithereens the following syllogism:
>
> 1) The Constitution is the Supreme Law of the Land, and
> 2)The First Amendment is part of the Constitution, therefore
> 3) The First Amendment is the Supreme Law of the Land.
Wow, this really boiled it down to the essentials. I can see why you took an
entire essay to discredit it.
1) The U.S. is the most powerful nation on earth.
2) Delaware is part of the U.S.
3) Delaware is the most powerful nation on earth.
> Do you agree or disagree with proposition 3?
Shouldn't you have been able to dispose of this with, at most, a Venn diagram?
Jon Putnam
Doug Sorensen
Also part of the Constitution, Article 1, Section 8:
The Congress shall have the power ...
8. To promote the progress of science and useful arts, by
securing for limited times to authors and inventors the exclusive right to
their respective writings and discoveries:
Barry Krusch <b...@netcom.com> wrote in article <bakDxB...@netcom.com>...
> Seth, rather than respond to ad hominem such as rant, I'll just quote
from
> my preface:
>
>
>
> Would the Real First Amendment Please Stand up?
> attempts to blast into smithereens the following syllogism:
>
> 1) The Constitution is the Supreme Law of the Land, and
> 2)The First Amendment is part of the Constitution, therefore
> 3) The First Amendment is the Supreme Law of the Land.
>
jputnam
Barry Krusch wrote:
>
> A fascinating point, Jon. But I believe the proper analogy is:
>
> 1)Jim's house is in Texas;
> 2)Jim's couch is in Jim's house;
> 3)Jim's couch is in Texas.
Not to take this too seriously, and I am not a lawyer, but it seems to me that the
sense in which the 1st Amendment is "in" the Constitution is not even remotely
like the sense in which Jim's couch is "in" his house. There are all kinds of
statements "in" the Constitution that, if read in isolation from others, could
be construed to mean things never intended by the framers. The president has
the power to conduct foreign affairs... except that the Senate is the one who
has to advise and consent on treaties. You don't further your cause by
engaging in the elementary textual error of divorcing a part from the whole
and then proclaiming that the part is the whole ("The First Amendment is the
Supreme Law of the Land"), even if you are only attacking a straw man.
Jon Putnam
>
> jputnam (jpu...@ziplink.net) wrote:
> : Barry Krusch wrote:
>
> : > Would the Real First Amendment Please Stand up?
> : > attempts to blast into smithereens the following syllogism:
> : >
> : > 1) The Constitution is the Supreme Law of the Land, and
> : > 2)The First Amendment is part of the Constitution, therefore
> : > 3) The First Amendment is the Supreme Law of the Land.
>
> : Wow, this really boiled it down to the essentials. I can see why you took an
> : entire essay to discredit it.
>
> : 1) The U.S. is the most powerful nation on earth.
> : 2) Delaware is part of the U.S.
> : 3) Delaware is the most powerful nation on earth.
> :
> : > Do you agree or disagree with proposition 3?
>
> : Shouldn't you have been able to dispose of this with, at most, a Venn diagram?
>
> : Jon Putnam
Barry Krusch
A fascinating point, Jon. But I believe the proper analogy is:
1)Jim's house is in Texas;
2)Jim's couch is in Jim's house;
3)Jim's couch is in Texas.
jputnam (jpu...@ziplink.net) wrote:
Stuart P. Derby
[re-arranged to more conventional follow-up form
In article <bakDxB...@netcom.com>, b...@netcom.com (Barry Krusch) wrote:
: jputnam (jpu...@ziplink.net) wrote:
: : Barry Krusch wrote:
:
: : > Would the Real First Amendment Please Stand up?
: : > attempts to blast into smithereens the following syllogism:
Let's call this "Syllogism #1"
: : > 1) The Constitution is the Supreme Law of the Land, and
: : > 2)The First Amendment is part of the Constitution, therefore
: : > 3) The First Amendment is the Supreme Law of the Land.
:
: : Wow, this really boiled it down to the essentials. I can see why you
took an
: : entire essay to discredit it.
Let's call this "Syllogism #2"
: : 1) The U.S. is the most powerful nation on earth.
: : 2) Delaware is part of the U.S.
: : 3) Delaware is the most powerful nation on earth.
: :
: : > Do you agree or disagree with proposition 3?
: A fascinating point, Jon. But I believe the proper analogy is:
Let's call this "Syllogism #3"
: 1)Jim's house is in Texas;
: 2)Jim's couch is in Jim's house;
: 3)Jim's couch is in Texas.
Nope, Barry, your re-statement doesn't parallel the original,
while jputnam's does. It's like this:
Syllogism #1 is of the form
1) A is B
2) C is part of A
3) C is B
Syllogism #2 is of the form
1) A is B
2) C is part of A
3) C is B
Syllogism #3 is of the form
1) A is part of B
2) C is part of A
3) C is part of B
If you believe syllogism #2, then you can believe syllogism #1.
-Stu
-Stu
--
World-wide picket of Scientology, September 7th/8th.
Stop the Internet harassment!! For details, see
http://www.primenet.com/~cultxpt/demo.htm
Andrew C. Greenberg
> Andrew C. Greenberg (wer...@gate.net) wrote:
>
> >1) the plain text of the constitution espressly embraces a copyright
> >law,
>
> Well, doesn't the plain text of the Constitution also (implicitly at
> least) endorse slavery?
Yes, of course there was the thirteenth Amendment, which (explicitly in
fact) forbade it. There is ample documentation that the federal government
was intended by the Congress to side-step the issue of slavery.
But to assert that the first amendment was intended to preclude an Article
I, Section 8 bill is, in fact, ludicrous. There is substantial documentary
evidence that none of the founders thought so: many states had bills of rights,
as well as defamation laws and protection for authors. Most significantly,
one of the first acts passed was a copyright act.
> >2) that many (I think all) of the original states had a declaration
> >of rights, most including something quite similar to the 1st prior to
> >the passage of the constitution and the BOR, and finally,
>
> Your argument here is?
Copyright law has coexisted with freedom of speech as a codified right
for a long, long time, and existed at the time of the passage of both
the Constitution and the bill of rights. Had anybody intended the 1st
to repeal A1S8, they would have said so.
Your reply here is?
> >3) that one of the very first pieces of legislation adopted
> >by Congress was a Copyright bill.
>
> Was this before or after the passage of the Bill of Rights?
Good question. I don't know. I'll check and get back to you.
>
> >Then, let's not forget Article III, and all that lovely language in
> >the Federalist talking about the Courts as the ultimate arbiter of
> >what the Constitution is to mean.
>
> That's new to me. Can you tell me which Federalist is that has
> the language about the courts being the ultimate arbiter of what the
> Constitution is to mean? Thanks.
Off the top of my head, I think it was 79, or thereabouts. If none of that
resonates with you, I'll go look it up.
Andrew C. Greenberg
> Seth, rather than respond to ad hominem such as rant, I'll just quote from
> my preface:
>
>
>
> Would the Real First Amendment Please Stand up?
> attempts to blast into smithereens the following syllogism:
>
> 1) The Constitution is the Supreme Law of the Land, and
> 2)The First Amendment is part of the Constitution, therefore
> 3) The First Amendment is the Supreme Law of the Land.
>
> Do you agree or disagree with proposition 3?
Disagree. It's word play, messing around with the notion of "is part of."
Perhaps, if you were committed to actual syllogism, you might conclude that
3') The First Amendment is part of the Supreme Law of the Land.
Now where does this point get you, except back to having to work the
hermeneutics of relating one part of the law to other parts of that
same law? Of course, that is precisely what the Supreme Court has to
do every day of its term. Rarely are results dicated by the text of the
Constitution: there is always complexities in its construction. This kind
of "argument" trivializes the great adventure that is American jurisprudence,
and the great experiment that our founders conceived in setting forth its
structure.
Ram Samudrala
Seth Finkelstein (se...@athena.mit.edu) wrote:
> Even a broken clock is right twice a day. And the
>anti-income-tax people have occassionally said something worthwhile. I
>still don't think highly of their arguments.
Sigh. I meant that it's basically a disclaimer of sorts.
> But the Federalist papers have a lot more significance to them.
So might this book someday. I find it strange, that you value rants
based on significance. But it's your judgement. For the record, he
quotes Nimmer a lot on there, and Nimmer basically advances the same
argument and finally says something like "we can't take the First
Amendment literally", which I think is incongruous (assuming he hasn't
taken Nimmer completely out of context). And a lot of Nimmer's
writing do have significance (I've seen Supreme Court decisions
quoting him as an authority of sorts).
>What happens with Free-Speech provisions in the State Constitutions? Don't
>they, similarly, override State Copyright law?
Perhaps, but I think the solution is to reword everything so Federally
Copyrighted Speech is exempted. As it stands, I do believe it's an
inconsistency (that can be easily fixed) and why let it stand?
In any case, thank you for your opinion and your time.
--Ram
Up on my podium as the know it all scholar.
Down in my seat of judgement gavel's bang, uphold the law.
Up on my soapbox a leader out to change the world. Down in my pulpit
as the holier than-thou-could-be messenger of god! ---Megadeth
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>But to assert that the first amendment was intended to preclude an Article
>I, Section 8 bill is, in fact, ludicrous.
This is not an argument I'd make. The First Amendment conflicts with
Federal Copyright Law, as worded, but I doubt if that was the intention.
>the Constitution and the bill of rights. Had anybody intended the 1st
>to repeal A1S8, they would have said so.
>Your reply here is?
I agree with that reasoning (on the surface). Why then not make it
clear in the language of the First Amendment?
Further, BAK cites a case where this issue came up in his last
chapter, and the prosecutor argued that that particular copyrighted
work wasn't entitled to First Amendment protection (in that case), if
I recall right (I am without www access right now).
Thanks for your answers too.
--Ram
And look at the two of us in sympathy, with everything we see.
I never want anything, it's easy. You buy whatever I need.
But look at my hopes, look at my dreams, the currency we've spent.
I love you, you pay my rent. ---Pet Shop Boys
Ram Samudrala
Seth Finkelstein (se...@athena.mit.edu) wrote:
>that I hate the First Amendment vs Copyright stuff *because* it's so
>frequently seen in long-winded censorship advocacy. I don't think it's a
>much of an anti-copyright argument in the simplistic formulation, and I
>don't like to see it stirred up because the way it's often used. Little
>gain, lots of pain.
Can you point me to a location where it's used this way (I'm curious)?
As an aside, the misuse or abuse of an argument does not deter me
personally from that argument being put forth anyway. Sorta like how
nuclear power is abused, but how I support research on nuclear power
anyway (including making bombs) or even the issue of guns.
Besides, I don't think it's an anti-copyright argument (in fact, out
of 11 or so chapters, it's just one chapter). I think I found his
book illuminating because it really illustrated how so-called First
Amendment "rights" have been eroded over the years, and further, the
First Amendment "rights" aren't "rights" strictly-speaking but
limitations on the power of Congress. This I knew, but I showed it to
many people here (who have little interest in such issues, i.e.,
people who believe who can say what they want when they want) and they
were fairly surprised. The history on the Bill of Rights was new to
me, and I'd like to pursue to this further---why did the BoR come
about? The discussion on America being a Republic and not a
Democracy was interesting as well.
One of the topics I found fascinating, but I am unsure about, is his
view of how the courts don't really have power, but yet their
decisions are treated like legislation. Sorta like common-law, except
that there's no provision for Common Law in the Constitution. Should
there be? If so, why was it expressly omitted (as he argues and
quotes a leter from Hamilton (?) which expresses this concern)?
--Ram
If you didn't care what happened to me, and I didn't care for you,
we would zig zag our way through the boredom and pain occasionally
glancing up through the rain wondering which of the buggers to blame
and watching for pigs on the wing. ---Pink Floyd
Ram Samudrala
Stuart P. Derby (sde...@blkbox.com) wrote:
> Nope, Barry, your re-statement doesn't parallel the original,
>while jputnam's does. It's like this:
You're failing to consider the underlying semantics though. You just
have to parse "in Texas" as "B". <-: Then A = "Jim's house", and C =
"Jim's couch", you have:
A is B.
C is part of A.
C is B.
But I think it's fairly clear what Barry is saying with his original
statement.
--Ram
Annihilation, kill 'em all! Capitulation, watch the mighty fall.
The road to glory is lined in red, and the reason now is gone...
the battle rages on! ---Deep Purple
Barry Krusch
I appreciate the reasoned discussion on my syllogism. The problem, I
think, is that "constitution" and "supreme law of the land" have a
subordinate relationship, unlike the coextensive relationship of "US" and
"most powerful." An additional problem is in the ambiguity of the
construct "the law"; one can say "65mph speed limit is the law" without
signifying it constitutes the entire law.
Having said that, I will re-write the syllogism for greater precision,
and to avoid the potential part/whole trap.
BKrusch
Here's the improved syllogism:
1) The Constitution and its amendments, laws in pursuance of the
Constitution, and treaties made
under the authority of the United States constitute the Supreme Law
of the Land, and
2)The 1791 First Amendment is an amendment to the Constitution,
therefore
3) The 1791 First Amendment is one of the laws of the Land.
== END ==
Stuart P. Derby
In article <50qv4u$9...@hecate.umd.edu>, m...@ram.org wrote:
: Stuart P. Derby (sde...@blkbox.com) wrote:
:
: > Nope, Barry, your re-statement doesn't parallel the original,
: >while jputnam's does. It's like this:
:
: You're failing to consider the underlying semantics though. You just
: have to parse "in Texas" as "B". <-: Then A = "Jim's house", and C =
: "Jim's couch", you have:
:
: A is B.
: C is part of A.
: C is B.
But that "re-parsing" utterly ignores the semantics, it's a purely
mechanical re-arrangement. Doing this parsing gives the meaning that
"Jim's house" is the same thing as "in Texas". "is" is an assetion of
identity, that they're the same thing (in this type of syllogism). And
of course, the "in" in "in Texas" is arbitrarily being treated
differently than the "in" in "in Jim's house". (Which calls to mind
a minor puzzle from my days as a linguistics student - punctuate the
following so that it's a well-formed sentence: "John while Jim had had
had had had had had").
Ram Samudrala
Stuart P. Derby (sde...@blkbox.com) wrote:
>In article <50qv4u$9...@hecate.umd.edu>, m...@ram.org wrote:
>: You're failing to consider the underlying semantics though. You just
>: have to parse "in Texas" as "B". <-: Then A = "Jim's house", and C =
>: "Jim's couch", you have:
> But that "re-parsing" utterly ignores the semantics, it's a purely
>mechanical re-arrangement.
You're right. I should have prefixed "On an unrelated note" before
"You just".
I still think you're failing to consider the underlying semantics,
when you say that the Delaware example is the same form as the
original statement.
Copyright Law is destructive to society.
X is part of Copyright Law.
X is destructive to society.
Where X is a section of Copyright Law that is destructive to society.
The problem is that it's an assertion which may or may not be true
(but in BAK's case, it's an assertion I've heard before), but I don't
think the Delaware example is closer in meaning to the original
statement, than the Jum's House example is.
--Ram
Our first ancestors, our Adams and our Eves, were endowed in a higher
degree than the animals of any other species with two precious facilities:
the power to think and the desire to rebel. ---Michael Bakunin
BKrusch
Here's one I like even better:
1) Every amendment to the Constitution not itself formally
amended has legal force and effect.
2)The 1791 First Amendment is an amendment to the
Constitution which has not been formally amended, therefore
3) The 1791 First Amendment has legal force and effect.
Seth, do you agree with proposition 3?
== END ==
Andrew C. Greenberg
> Copyright Law is destructive to society.
> X is part of Copyright Law.
> X is destructive to society.
Of course, the consequent does not follow. It is quite possible for
X to be non-destructive, even essential for society, while the combination
of X and something else (which might also be harmless) is what does the
harm.
The difficulty is that the full meaning of the phrase "is part of"
is not specified or used throughout. We are confusing one syllogism,
the geographical one, where "is part of" is used as a measure of
geographical containment, and the interaction between elements is
irrelevant, with examples such as the above, where the interaction between
elements that are part of another are critical to the effects of the whole.
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>In article <50t7k6$7...@hecate.umd.edu>, m...@ram.org wrote:
>> Copyright Law is destructive to society.
>> X is part of Copyright Law.
>> X is destructive to society.
>Of course, the consequent does not follow. It is quite possible for
>X to be non-destructive, even essential for society, while the combination
>of X and something else (which might also be harmless) is what does the
>harm.
It does not necessarily follow---it might. As I said, it's an
assertion which may or may not be true. I think the point here is
that some people might use this reasoning. But I agree with your
version of Barry's syllogism. (I believe his first modification takes
this into account.)
--Ram
Andrew C. Greenberg
> Andrew C. Greenberg (wer...@gate.net) wrote:
>
> >In article <50t7k6$7...@hecate.umd.edu>, m...@ram.org wrote:
>
> >> Copyright Law is destructive to society.
> >> X is part of Copyright Law.
> >> X is destructive to society.
>
> >Of course, the consequent does not follow. It is quite possible for
> >X to be non-destructive, even essential for society, while the combination
> >of X and something else (which might also be harmless) is what does the
> >harm.
>
> It does not necessarily follow---it might. As I said, it's an
> assertion which may or may not be true. I think the point here is
> that some people might use this reasoning.
This is your point? That some people would use fallacious reasoning?
So what? Done. I agree that some people might use fallacious reasoning.
However, is not SOUND reasoning, logically or legally, and doesn't do
anything to prove or motivate the other points you have made (concerning
the First Amendment and the Copyright Act).
If you *are* making these kinds of arguments, you
can understand why folks are treating it, well, less than seriously
and more by analogy to the "tax patriot" arguments.
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>This is your point? That some people would use fallacious reasoning?
>So what? Done. I agree that some people might use fallacious reasoning.
Well, if the third proposition is true (or a significant number of
people believe it---that is X in Copyright Law is indeed destructive
to society), it's sorta moot whether or not it was arrived through
fallacious reasoning. Your goal is to prove X in Copyright Law is not
destructive to society---proving the reasoning fallacious might not be
enough to convince people that X is not destructive to society.
On a personal note, as a scientist, I observe this a lot when people
come up with pet theories, and based it on fallacious reasoning. It's
a lot easier to prove the conclusion wrong, than to show the reasoning
is wrong and therefore the conclusion might be wrong, because most
people come up with the conclusion first and then wrap a theory around
it.
--Ram
Daddy's lil girl ain't a girl no more.
This is outrage and it's gross. This is getting to me and I'm drowned.
I'm a negative creep and I'm stoned! ---Nirvana
Andrew C. Greenberg
> Well, if the third proposition is true (or a significant number of
> people believe it---that is X in Copyright Law is indeed destructive
> to society), it's sorta moot whether or not it was arrived through
> fallacious reasoning. Your goal is to prove X in Copyright Law is not
> destructive to society---proving the reasoning fallacious might not be
> enough to convince people that X is not destructive to society.
Q.E.D.
Really, Ram, how far have we come from the initial reaction to this
on-line "book," stated by others, that it is little more than
unsubstantiated, unsupported populist pubulum for anti-copyright
advocates, without basis in history, logic or law.
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>Really, Ram, how far have we come from the initial reaction to this
>on-line "book," stated by others, that it is little more than
>unsubstantiated, unsupported populist pubulum for anti-copyright
>advocates, without basis in history, logic or law.
I don't know. Your arguments have convinced me it actually is more
meritorious than I initially thought.
I think that's an unfair assessment of the book. One chapter (out of
11 or so) is devoted to Federal Copyright. Further, there's really no
anti-copyright sentiment evoked there. It's pointing out what is, at
the very least, a logical contradiction.
It's also clear you've not read it.
--Ram
God is a conjecture; but I desire that your conjectures should not reach
beyond your creative will. Could you /create/ a god? Then do not speak
to me of any gods. But you could well create the overman. ---Nietzsche
Barry Krusch
1270...@192.0.2.23>
:Organization: NETCOM On-line Communication Services (408 261-4700 guest)
Distribution: inet
Andrew C. Greenberg (wer...@gate.net) wrote:
: advocates, without basis in history, logic or law.
Without basis in law? Andrew, do you agree with prop. 3?
Andrew C. Greenberg
> Andrew C. Greenberg (wer...@gate.net) wrote:
>
> >Really, Ram, how far have we come from the initial reaction to this
> >on-line "book," stated by others, that it is little more than
> >unsubstantiated, unsupported populist pubulum for anti-copyright
> >advocates, without basis in history, logic or law.
>
> I don't know. Your arguments have convinced me it actually is more
> meritorious than I initially thought.
> I think that's an unfair assessment of the book. One chapter (out of
> 11 or so) is devoted to Federal Copyright. Further, there's really no
> anti-copyright sentiment evoked there. It's pointing out what is, at
> the very least, a logical contradiction.
The logic of which in the immediately preceding post, you ceded was
fallacious.
You need to educate yourself about the law and about the
constitution both. Two texts must be read in pari materia
whenever possible. There isn't a contradiction, because the first amendment
doesn't (and NEVER did) mean an absolute proscription of laws concerning the
use of spoken language (let alone other forms of expression). Only when you
take that view, must you find a contradiction. But this is simply naked
first amendment absolutism, a long-discredited notion, even by the Warren
Court at its peak. (Certainly, there have been Justices who took this view
when it suited them: Black's "'No law' means NO LAW", but this has never
been the law of any Supreme Court since the founding).
Indeed, under that view, *ALL* laws respecting speaking or press (including
slander and incitement of riot) are constitutionally proscribed. OK, so far
as it goes, but this has NEVER been the law in the United States of America,
and certainly was never found in the intentions of the founding fathers.
(Once again, consider Madison's Virginia, which had a "first amendment,"
common law defamation causes of action *AND* a sedition Act!)
Rahul Dhesi
In <werdna-1009...@192.0.2.23> wer...@gate.net (Andrew C.
Greenberg) writes:
>You need to educate yourself...
>...this is...
>a long-discredited notion, even by the Warren
>Court at its peak.
>...but this has NEVER been the law in the United States of America,
>and certainly was never found in the intentions of the founding fathers.
But this is mostly an argument by appeal to authority. Such an argument
cannot be logically used to refute a claim that the authority in
question is wrong.
--
Rahul Dhesi <dh...@rahul.net>
"please ignore Dhesi" -- Mark Crispin <m...@CAC.Washington.EDU>
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>The logic of which in the immediately preceding post, you ceded was
>fallacious.
I am sorry, but that statement (with regards to the Copyright example
I gave---as Barry pointed, the words "the law" can be used
differently) has nothing to do with the argument with regards to
Federal Copyrights. It is separate and distinct.
>doesn't (and NEVER did) mean an absolute proscription of laws concerning the
>use of spoken language (let alone other forms of expression). Only when you
>take that view, must you find a contradiction.
This, as Barry points out throughout, is like saying "2 != 2". This
sort of argument, advanced by Nimmer, is exactly why I find this whole
thing dubious. Your statement might have basis in law (i.e., over the
years, the courts have interpreted it that way), but it has no basis
in logic (which is what I said). The first amendment is written
absolutely. It says "no law". The main argument as far as I can see
is what constitutes "speech". I believe at least some things to which
copyright law applies does.
That is, if you gave a Vulcan a copy of the amended Constitution, and
asked him whether Federal Copyright law was inconsistent with the
First Amendment, I believe the answer would be yes. The fact that
were not vulcans implies that we are illogical (in this respect at
least). You might also argue no sufficiently powerful system (the
enumeration of supreme laws) can ever be consistent, and we have no
reason to expect it to be, but that's another issue.
--Ram
Waiting for the revolution. Nuclear vision, genocide.
Computerise god, it's the new religion.
Program the brain, not the heart beat. ---Black Sabbath
Barry Krusch
Well stated, Ram. Thanks for saving me the trouble. You'll note Andrew
has not answered the hypothetical.
BKrusch
In article <werdna-1009...@192.0.2.23>, wer...@gate.net (Andrew
C. Greenberg) wrote:
> You need to educate yourself about the law and about the
> constitution both.
Great advice, Andrew! Read this (from my book):
* * *
When we analyze the words that make up the speech protection
provisions of the First Amendment paragraph, we find a clear
Constitutional directive: Congress cannot pass even one law that in any
way, shape, or form limits the power of any person or body to speak or to
publish.
From the standpoint of clarity, this is a beautiful amendment, which
satisifies several key parameters for well-written legislation; it is short,
uncomplicated by irrelevant language, understandable, simple, and
about as unambiguous as you can get.
In fact, of the Amendment's 10 key terms, 8 are unambiguous. 2 of the
terms (used in Boolean logic) have a rigor that allows them to be used in
computer languages like C, Pascal, Fortran, Hypertalk, etc, with
flow-chartable meaning: "no" and "or". 2 other terms are defined in the
Constitution: "Congress" (in Article I), and "law" at the Federal level (also
in Article I, with a plain meaning at the State level and lower). The other 4
terms, "make", "shall", "freedom", and "abridging", have clear meanings
in everyday language.
This leaves only 2 terms which can be seen as ambiguous, giving the
green light for "broad" interpretation ("literal" interpretation is required
for unambiguous provisions like "no"). "Speech" is tricky: is sign
language "speech"? So is "press": may writing on a poster be considered
"press", if no printing press is involved? And what about Braille, film,
videotape, CD-ROM, and/or transmissions over the Internet? Some would
claim that these forms of media should not fall under the First Amendment,
because they weren't around when the Amendment was written.
Unfortunately, to apply this "original understanding" approach to
interpreting the First Amendment would be to dilute it, since most of the
effective media for communication that exist today were not even
conceived 200 years ago.
To have the maximum First Amendment protection, we will need to see
these final two ambiguous terms in their broadest senses; that's
permissible, since an ambiguous term, by definition, contains more than
one meaning, and so the term itself declares the mode of permissible
interpretation: broad interpretation is okay because more than one
meaning is involved. There is no one literal interpretation possible with
ambiguous terms, because there is no one single meaning to be seen
literally. How can we see the term "reasonable" literally?
There is an important proviso here: if we are going to see these
ambiguous terms in their most expansive senses, we must consistently
take this approach, and not shift our standards from case to case as
convenience dictates. Luckily, consistent expansive interpretation of
these ambiguous terms is not a controversial idea. Most people, regardless
of political persuasion, don't have any problem with giving sign language,
radio transmissions, film, television, Braille, and Morse Code First
Amendment protection. And this final (political) decision removes the last
barrier to First Amendment understanding.
When all is said and done, we have one of the most sterling examples of
clear and unambiguous constitutional writing extant, so clear that we can
break analysis down into three decision points, or nodes. With regard to
directives regulating speech, the First Amendment tells us to ask three
questions :
1) Is the directive a law?
2) Did Congress make the law?
3) Does the law abridge the freedom of speech or press?
If the answer to all three questions is "yes", the law is unconstitutional
with respect to the First Amendment. If the answer to any of the
questions is "no", then the law may or may not be unconstitutional on
other grounds, but is definitely constitutional with respect to the First
Amendment. (As stated before, the speech and press portions of the
Amendment, the exclusive focus of this book).
These questions ("nodes") are decision points (points of direction
change), and can be put into a flow chart:
Now that you understand the procedure mandated by the speech and
press provisions of the First Amendment, it's time to see this procedure in
action. Remember, we're considering only the First Amendment here, and
no other Amendments, under which one or more of the following
directives might be considered unconstitutional.
Jim's boss makes out a pink slip (a directive) firing Jim for
leaking an internal office memo to the press.
1) Is the directive a law? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST AMENDMENT.
The Texas legislature makes a law prohibiting bookstores
from selling fiction.
1) Is the directive a law? YES
2) Did Congress make the law? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST AMENDMENT.
New York City's legislative body makes a municipal
ordinance prohibiting the spray-painting of messages on
subway cars.
1) Is the directive a law? YES (an "ordinance" is a "law" with a different
name)
2) Did Congress make the law? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST AMENDMENT.
Congress makes a law that no book can be longer than 300
pages.
1) Is the directive a law? YES
2) Did Congress make the law? YES
3) Does the law abridge the freedom of speech or of the press? YES
UNCONSTITUTIONAL WITH RESPECT TO THE FIRST
AMENDMENT.
Congress makes a law proclaiming the existence of
"National Pickle Week".
1) Is the directive a law? YES
2) Did Congress make the law? YES
3) Does the law abridge the freedom of speech or of the press? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST
AMENDMENT.
Florida's legislature makes a law that will fine newspapers
$10,000 for each count of "slanderous publication."
1) Is the directive a law? YES
2) Did Congress make the law? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST
AMENDMENT.
A state judge orders television cameras out of his courtroom
for a closed hearing.
1) Is the directive a law? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST
AMENDMENT.
As the above examples show, the First Amendment is widely
misunderstood. This amendment is not (as generally believed) a catch-all
directive against Government regulation of speech. In this regard, the first
word of the First Amendment is its most important word: Congress. We're
talking about the "Federal" government here, not "government" in the
abstract. This view of the meaning of this first amendment contained in
the original Bill of Rights is confirmed by the last amendment contained
in the original Bill of Rights, the Tenth Amendment, which provides that
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
In other words, Congress can't regulate speech: it doesn't have that
power. That power flows down to one of the State governments in our
Federalist system. If they choose not to exercise that power (available to
them since not prohibited by Section X of Article I), the people retain it.
Consequently, the concern of the First Amendment is not rights, but
powers. The First Amendment is concerned not with protection of
minority rights, but rather with Federalism: who rules, Congress or the
States? Let's make this perfectly clear:
The issue under the First Amendment is not "can speech be
abridged",
but "who can abridge speech?"
And this is what saves (or should have saved) the First Amendment from
arguments to evade or re-organize its clear procedure. Imagine society
helpless before the following situations:
-- Automated obscene (or threatening) phone calls
are made to "latchkey kids" while Mommy and Daddy
are at work;
-- Graffiti is sprayed on the pulpit of a church;
-- A newspaper vendor wants to sell child
pornography;
-- An ad is placed in a mercenary magazine for a
"hit man";
-- A restaurant copies the trademarks and menus of
a more successful restaurant down to the last
detail to get more customers;
-- A magazine publishes troop movement schedules in
wartime;
-- A student copies another student's essay while
taking an exam;
-- A business submits a false competitive bid to
the government;
-- A newspaper prints false and defamatory stories
about a group, manufacturing fake quotes to put in
the words of the group leaders, with no right of
reply;
-- Radio frequencies clash so that no radio can get
through.
Put enough "nothing we can do"'s together, and a coalition of anti-First
Amendment sentiment from people of the north, south, east ("left"), and
west ("right") would form. Disrespect for this critical Amendment would
spread in the society.
Luckily, there is something we can do about child pornography and
advertisements for "hit men" in the local paper: we just have to do it on a
non-Federal level. And this is what should have saved the First
Amendment from the excuse that following its clear procedure is "too
harsh".
Many of the difficulties that come about from a "literal" or "absolutist" or
"rigid" interpretation of the First Amendment (i.e., a correct reading of the
First Amendment) fall away when we realize that the Amendment does
not prohibit State governments from legislating against speech. The First
Amendment doesn't say "no" government is prohibited from passing laws
against libel, slander, child pornography, and false advertising; rather, it
says that regulation of these matters is up to the States. The authors of
the First Amendment did not believe you could "say anything you
wanted"; to the contrary. Under the First Amendment, Texas, Florida, and
Alaska can shut you up tighter than a clam, if they want to.
At the Federal level, however, the Government's hands are tied. In case
you had any doubts about this, you could do a reality check by reading
the words of the two Supreme Court judges who were the greatest
(though as we'll see, far from perfect) defenders of this Amendment -
Hugo Black and William O. Douglas.
Before we do this, though we have to go off track for a second and bring
up an important issue: citing the opinion of judges with reference to the
meaning of constitutional text is a potential trap: after all, sometimes
judges tell us that "2 + 2 = 4", and others that "2 + 2 = 5". And to cite the
judge who says "2 + 2 = 4" is to implicitly endorse the power of
another judge to hold that "2 + 2 = 5"!
However, citing the opinions of judges is permissible provided that we
understand that these opinions are in no way dispositive of the meaning
of Constitutional text, and cannot in any way overrule the plain
meaning of constitutional text.
With this critical proviso in mind, let's look at some of this
reality-checking language. According to Judge Douglas,
The First Amendment is written in terms that are
absolute. Its command is that 'Congress shall make
no law . . . abridging the freedom of speech, or of
the press . . .' That guarantee, can, of course, be
changed by a constitutional amendment which can
make all the press or segments of the press organs
of Government and thus control the news and
information which people receive. Such a
restructuring of the First Amendment cannot be done
by judicial fiat or by congressional action. The
ban of 'no' law that abridges freedom of the press
is in my view total and complete. [1]
True, though "in my view" can be struck as irrelevant (and misleading).
According to Judge Douglas, the Court does not have
carte blanche to design systems of supervision and
control or empower Congress to read the mandate in
the First Amendment that 'Congress shall make no
law . . . abridging the freedom . . . of the press'
to mean that Congress may, acting directly or
through any of its agencies such as the FCC make
'some' laws 'abridging' freedom of the press. [2]
True, though under Article I, Section I of the Constitution, Congress
cannot delegate its exclusive legislative power to any "agenc[y]".
According to Judge Black,
[T]he First Amendment's language leaves no room for
inference that abridgments of speech and press can
be made just because they are slight. That
Amendment provides, in simple words, that 'Congress
shall make no law . . . abridging the freedom of
speech, or of the press.' I read 'no law . . .
abridging' to mean no law abridging. The First
Amendment, which is the supreme law of the land,
has thus fixed its own value on freedom of speech
and press by putting these freedoms wholly 'beyond
the reach' of federal power to abridge. . . . The
contrary notion is, in my judgment, court-made not
Constitution-made. [3]
True, though "federal" power should be amended to read "Congressional"
power. Thomas Jefferson provided a reality-check from a non-judicial
observer, and stated in 1798 that:
[The First Amendment] thereby guard[s] in the same
sentence, and under the same words, the freedom of
religion, of speech, and of the press; insomuch,
that whatever violates either, throws down the
sanctuary which covers the others, and that libels,
falsehood, and defamation, equally with heresy and
false religion, are withheld from the cognizance of
federal tribunals. [4]
True, though "federal tribunals" should be amended to read "Congress".
The idea advanced by some that the First Amendment was
"old-fashioned" was no argument for not following its clear language:
What kind of First Amendment would best serve our
needs as we approach the 21st century may be an
open question. But the old-fashioned First
Amendment that we have is the Court's only
guideline; and one hard and fast principle which it
announces is that Government shall keep its hands
off the press. That principle has served us through
days of calm and eras of strife and I would abide
by it until a new First Amendment is adopted. [5]
True, though a little bug slipped in here. See if you see it in this
restatement:
[I]t is anathema to the First Amendment to allow
Government any role of censorship over newspapers,
magazines, books, art, music, TV, radio, or any
other aspect of the press. There is unhappiness in
some circles at the impotence of Government. But if
there is to be a change, let it come by
constitutional amendment. [6]
Did you find the error? I know, it's subtle. Douglas refers to the impotence
of "Government". Ahh, but you see, the First Amendment doesn't say that
it is "Government" which is "impoten[t]" to regulate speech - the
Amendment refers only to the legislative branch of the Federal
government (a/k/a "Congress"). And the Tenth Amendment confirms this
point of view, in case we had any doubts in the matter.
What is Douglas talking about?
====================================
Barry Krusch:: http://www.krusch.com/real2.html
Seth Finkelstein
In article <bk-080996...@ts3port7.port.net> b...@interport.net (BKrusch) writes:
>Here's one I like even better:
>
> amended has legal force and effect.
> 2)The 1791 First Amendment is an amendment to the
> Constitution which has not been formally amended, therefore
> 3) The 1791 First Amendment has legal force and effect.
>
Ack. I have a feeling that we have very different ideas as to
what I'd be "agree"ing to. Can we get rid of all the sillygisms? I think
they are distracting us all from the main point.
Here, in a nutshell, is my problem with your position: We need a
*meaning* for the First Amendment. You appear think that the "speech ==
any words" one is the only correct way to view it. Anything else draws
your derision, as "fine print" or such. Usually, people who talk about
"speech == any words" are censorship advocates trying to imply by
contradiction that there is no meaning to freedom of speech. The reason
they take this approach is because "speech == any words" is so absurd.
You have a sort of inverted take in this, claiming "speech ==
any words" is in fact *true*, and trying to get out of the absurdities
by pushing the philosophical problems on to *State* law. This leads you
to crankish, ranty, anti-Federalism, with attacks on 14th-Amendment
incorporation, and Federal copyright. But it's a sham, since the same
philosophical problems reappear on the *State* level, when there are
similar freedom of speech provisions the *State* constitutions. All
you've done is swept it all one level of government down, and said of
lot of *extremely* dubious stuff in the process.
You material is appealing to some people because you're saying
what they want to hear as a conclusion, but I'm concerned that they'll
pick up a lot of nonsense. You may have a great career ahead of you as a
Usenet flamer, but I think anyone who starts taking your arguments
seriously is doing themselves a disservice.
--
Seth Finkelstein se...@mit.edu
Disclaimer : I am not the Lorax. I speak only for myself.
(and certainly not for Project Athena, MIT, or anyone else).
Barry Krusch
Seth Finkelstein (se...@athena.mit.edu) wrote:
: You have a sort of inverted take in this, claiming "speech ==
: any words" is in fact *true*, and trying to get out of the absurdities
: by pushing the philosophical problems on to *State* law.
Okay, Seth, let's start from square one. Does 2 = 2?
Doug Sorensen
The odd thing is, in this Alice in Wonderland world called American legal
analysis, you are both right. In American a decision is law, even if badly
decided, until overruled by the same or higher authority. So a Supreme
Court decision is the law.
There is an inherent conflict between the First Amendment and Congress'
authority to protect copyrights. Trying to resolve it by a priori analysis
from the Constitution is hopeless. It's just not there. The Court has drawn
a fuzzy line between the two, but one that has been workable until lately.
However, now Intellectual Property is in vogue and IP owners trying to push
its boundaries as far as they can. Some (Co$ comes to mind) are using IP to
abridge freedom of speech, IMHO. I believe this issue will end up in the
Supreme Court.
When it does, the analysis will be based on the competing policies of
copyright and freedom of speech. The analysis will not be directly based on
the text of the Constitution. If you want a discussion that really gets
somewhere, start talking about the policy questions.
Regards,
Doug Sorensen
d-sor...@ti.com
Rahul Dhesi <dh...@rahul.net> wrote in article
<5158fq$j...@bug.rahul.net>...
Seth Finkelstein
A = A, OK? But you have X = Y, and that's different. Anyway,
are you going to address the flaw I've pointed out in your approach or not?
You can call this _ad hominem_, but the whole tone of your
writing just screams to me "Legal kook! Stay away!".
Barry Krusch
Barry Krusch
1270...@192.0.2.23> <512tt0$v...@hecate.umd.edu> <werdna-1009...@192.0.2.23> <5158fq$j...@bug.rahul.net> <01bba0b6$60ca8e00$0369...@RNA0179403.taiwan.ti.com>
Doug Sorensen (d-sor...@ti.com) wrote:
: The odd thing is, in this Alice in Wonderland world called American legal
: analysis, you are both right. In American a decision is law, even if badly
: decided, until overruled by the same or higher authority. So a Supreme
: Court decision is the law.
Really? How would you square that with Article 1, Section 1?
Seth Finkelstein
"no" what? The question is really what is an "abridgement" of
freedom of speech. If you take the view that it is anything which
affects any words whatsoever, this quickly becomes untenable. Start
dealing with it, every exchange where you keep ducking it ups your
kookyness quotient.
Ram Samudrala
Seth Finkelstein (se...@athena.mit.edu) wrote:
> "no" what? The question is really what is an "abridgement" of
>freedom of speech. If you take the view that it is anything which
>affects any words whatsoever, this quickly becomes untenable. Start
>dealing with it, every exchange where you keep ducking it ups your
>kookyness quotient.
For the record, it is your comments that I find kooky (bringing that
"it can be used by the censors so it's more trouble than its worth"
argument, ad hominems, etc.), but USENET is full of them and I have no
bias against what so-called "kooks" might say. Though I'm a bit
surprised it's coming from you (given your other posts I've read).
Anyhow, I had exactly the same question as I read his book. You don't
need to take the view that it "affects any words whatsoever". Just
pick up a dictionary.
--Ram
Hey! Aren't you scared of me Christ? Mr. Wonderful Christ! You're a
joke, you're not the Lord, you are nothing but a fraud. Take him away
he's got nothing to say! ---King Herod in Jesus Chris Superstar
Seth Finkelstein
In article <51amrq$g...@hecate.umd.edu> m...@ram.org writes:
>Seth Finkelstein (se...@athena.mit.edu) wrote:
>> "no" what? The question is really what is an "abridgement" of
>>freedom of speech. If you take the view that it is anything which
>>affects any words whatsoever, this quickly becomes untenable. Start
>>dealing with it, every exchange where you keep ducking it ups your
>>kookyness quotient.
>
>For the record, it is your comments that I find kooky (bringing that
>"it can be used by the censors so it's more trouble than its worth"
Exactly what's kooky about my opinion that head-butting the
First Amendment and copyright (presumably for an anti-copyright
argument) is a rhetorical loser and legally quite difficult to do
meaningfully? That sounds outright stolid to me.
I also said I hate that argument, because I run into that stuff
so often from would-be censors. That's a recounting of personal experience.
>argument, ad hominems, etc.), but USENET is full of them and I have no
I'm getting a little tired of the _ad hominem_ bit. For all it's
been slung against me, I've engaged the arguments put forth (broadly),
and pointed out the severe flaws in them (IMHO). And my conclusion is
that they're pretty bad. In addition, overall it strikes me as akin to
the tax-loons. That's at worst *derision*, not _ad hominem_.
>bias against what so-called "kooks" might say. Though I'm a bit
I do. Life's too short.
>surprised it's coming from you (given your other posts I've read).
Though I am a strong free-speech advocate, I also am very wary
of the net lunatic fringe, even if they happen to espouse the same the
views I do. Someone making ludicrous babble arguments is just going to
be embarassing in the long run (guilty secret: I'm sometimes amused by
watching these people in flame wars against opponents). If you ask me
what I think of someone's material (and that's how this conversation
started), I'm not going to give it a good review if it's utter junk but
making the right noises.
By the way, if you actually examined the stuff more closely,
you'd see that book is *not* really an argument for free speech or
anti-copyright at all, it's just fanatically anti-Federal government
with that as a hobby-horse (the literalism cuts both ways). As I keep
pointing out, and as the author keeps avoiding, all the philosophical
problems are just pushed onto the *State* governments as an answer.
>Anyhow, I had exactly the same question as I read his book. You don't
>need to take the view that it "affects any words whatsoever". Just
>pick up a dictionary.
Any good dictionary will have a range of definitions. Which is The
ONE TRUE MEANING?
I'd point out that this is the sort of *damage* nutty stuff like
his can do. Now the next time the topic comes up, you're more likely to
try to push a position that's absurd, and look very foolish in the
process. That's *harmful* overall. Which is why one has to beware kooks
who might be tempting when one considers only their conclusions or
slogans.
Andrew C. Greenberg
> Doug Sorensen (d-sor...@ti.com) wrote:
> : The odd thing is, in this Alice in Wonderland world called American legal
> : analysis, you are both right. In American a decision is law, even if badly
> : decided, until overruled by the same or higher authority. So a Supreme
> : Court decision is the law.
>
> Really? How would you square that with Article 1, Section 1?
I would take off my blinders and read Article 3 as well.
Andrew C. Greenberg
> In <werdna-1009...@192.0.2.23> wer...@gate.net (Andrew C.
> Greenberg) writes:
>
> >You need to educate yourself...
> >...this is...
> >a long-discredited notion, even by the Warren
> >Court at its peak.
> >...but this has NEVER been the law in the United States of America,
> >and certainly was never found in the intentions of the founding fathers.
>
> But this is mostly an argument by appeal to authority. Such an argument
> cannot be logically used to refute a claim that the authority in
> question is wrong.
Ordinarily, you might be right, but not in this case! You see, the
"claim" you addressed is predicated on the premise that the words in the
constitution must be literally read in a particular way, adopting a strict
literal textualist hermeneutics.
Unfortunately, that reading of the constitution also requires deference to
the Supreme Court's authority, because the cosntitution ALSO says that the
Supreme Court is the arbiter of cases and controversies arising under the
Constitution, and that its appellate jurisdiction is as to all questions
of law and fact.
So, the logical consistency lies here with your argument. If you buy into
a strict textualist conclusion to arrive at your argument that,
notwithstanding any construction given to the Constitution by the
judiciary, *YOUR* reading is the "right" one, then you are unfortunatly
likewise obliged to a strict textualist reading of the rest of the
constitution, and with that the conclusion that the Supreme Court is the
ultimate arbiter of what is the law. C!
Really, boys and girls, except for a literal restatement of the literalist
absolute construction, there has been little defense to the various
historical points made so far. Constitutional construction (indeed the
attribution of substantive meaning to any text) is a difficult and complex
thing. The Constitution is *NOT* a programming language -- there are no
natural and simple semantics that will credibly flesh out its meaning for
all purposes. It was not written by programmers for a particular hardward
configuration, but by visionaries for all manners of interactions between
citizens throughout the ages.
I commend to everyone with a legitimate interest (rather than an ideological
ax to grind seeking validation for a predetermined conclusion) the
following:
From the past:
The Federalist Papes, #78
From the right:
Robert H. Bork, The Tempting of America (1990) (Free Press)
From the left (not really, more like straight scholarship):
Harry H. Wellington, Interpreting the Constitution (1990) (Yale Univ. Press)
Of course, Bork's piece is a diatribe in defense of his jurisprudence, but
it is also a useful precis of constitutional jurisprudence generally.
When read with a skeptical eye, it is a very useful "leg up," particularly
for a lay audience. Wellington, a far more scholarly and balanced work,
may be a little tougher for some audiences, but a worthwhile read for
both, and offers a criticism of originalism, not found in Bork.
The point is to begin with an appreciation for the difficulty in reading
the Cosnstitution and applying it to the affairs of people. The Posse
Commitatus and their progeny, the modern "Common Law Courts" use the same
text as the Supreme Court to explain its seperatist views. How many
different readings of any passage of the Bible or a page of Talmud can be
valid? Which are the "correct" views? Is it possible for a judge to be
"bound" or limited by a piece of text?
These, ladies and gentlement, are difficult problems. Ultra-simplistic,
arguments, such as BK offers are appealing, for they require no education,
no study, nor any appreciation of the underlying history of the document.
The truth, however, is far more interesting.
And I do not argue that the "'No law' means no law" argument is without
its respective advocates. It is just that even those who made these
arguments never meant what they said. Black and Douglas both found, in
time, limitations on the freedom of speech when sufficiently entangled
with illegitimate conduct. What I do argue is that no Court has ever
embraced that view, that the founders could never have meant it to be
read that way (for their practices were wholly inconsistent with such a
reading, and their laws at the time construing similar language were
likewise inconsistent), and that it is inconsistent with any reasonable
reading of the document as a whole.
If you ask what *is* the law in this nation, you must defer to the Courts,
and by that measure, BK is dead wrong. If you want to ask what *should*
the courts take the law to be, a fair question, then you cannot use a
absolutist textualist approach to dismiss as meaningful the history of the
Constitution or its construction by the courts, for that same approach
REQUIRES you to read the entire Constution that way, and Article III, read
under an absolutist textualist rubrick, requires deference to that history
and construction.
Andrew C. Greenberg
In article <519afj$1...@senator-bedfellow.MIT.EDU>, se...@athena.mit.edu
(Seth Finkelstein) wrote:
> >Okay, Seth, let's start from square one. Does 2 = 2?
>
> A = A, OK? But you have X = Y, and that's different. Anyway,
> are you going to address the flaw I've pointed out in your approach or not?
>
> You can call this _ad hominem_, but the whole tone of your
> writing just screams to me "Legal kook! Stay away!".
I agree that the argument is kooky, but I wouldn't argue that its author
is a kook. It is the form of argument used by constitutional cranks and
crackpots, indeed, but that doesn't by itself negate the legitimacy of the
argument, and in particular, it doesn't make Barry a crank or a crackpot.
In this case, however, this kind of reasoning exposes the weaknesses and
oversimplifications of Barry's analysis. The question
Whether 2 = 2 ?
is asking for an equation of referents refered to by the text of a
language. That little formula asks whether two, the number referred to by
the numeral '2' is equal to the number two, referred to by the numeral
'2'.
We are not asking that question at all. When posed in the form:
Whether "no law" = "no law" ?
the truth of the formula is evident, but it is merely tautologous. It
doesn't prove anything, or add to the body of knowledge that already
acknowledges reflexivity. It doesn't answer the question of the first
amendment, but begs it. All this formula asserts is the equivalence of
two strings of text. What we are seeking is the question whether
Whether "no law" means no law ?
which is a much more complex matter. Here we are asking not about the
reflexive equality of a string of text with itself, but the semantic
meaning of a particular piece of text.
And even this question itself is poorly founded, for the fragment
by itself doesn't have meaning. The phrase "no time" as in,
Don't worry, we'll have this done in no time at all.
doesn't mean the task will be accomplished in a time equal to zero, but
that it will be done in a jiffy. The sentence
There was no time in which to do all the work.
didn't mean that there was zero time in which to do work, but not enough
time to do the work. Finally,
The clock having run out, there was no time to make the winning play.
does, in fact, mean zero time. Thus, context has a lot to do with
meaning, and a phrase by itself is not dispositive. So, fleshing it out
somewhat from Justice Black's melifluous phrase, "'no law' means no law,"
we really are asking the far more sophisticated question
Whether the phrase "no law" in the First Amendment of the
Constitution, read in the context of the whole document,
means no law at all?
Which is not self-answering, nor does it have a tautologically obvious
answer. Far from an answer, Barry's "programming language" solution to
the first amendment jurisprudence problem merely begs the question, and
appears to be little more than an announcement of his conclusion.
And by the way, even a mindless dictionary reading of the phrase "no law"
leads to an ambiguous answer to this question. My Webster's Third New
International includes the meaning "hardly any." So by a dictionary
substitution it *is* plausible to conclude that
"no law" means, among other things, "hardly any" .
But of course, that is not the answer to the complex question of
construing the First Amendment. On the other hand, when faced with the
infantile rhetorical nonsense, "Does 2=2?", rather than replying by
calling the person a kook, it is far more impressive to answer. "Of
course, and your point is?" and expose the argument, not as one that is
merely kooky, as one that is, actually wrong, or at most substantively
empty. Whether or not Barry is correct in his conclusions, the "2=2" line
of reasoning is destined to a dead end. It will not prove that point.
By the way, all of the above presumes that there is a unique meaning
attributable to the "no law' words. Why couldn't it have meant different
things to different people at different times? Could different founders,
as have different Justices over the years, have meant different things by
these words? When you have a document that is to have a unique semantic
construction by a computer when executed, there is but one meaning (or a
countable infinity of functionally equivalent ones), but when we have a
text that is to govern people, written in mere English, it is quite naive
to think that the text itself can uniquely determine the result. As much
as we can accomplish, the wisdom of having a fair procedural tribunal to
explain the "meaning" of a text is the only way that people can actually
govern themselves, for language is *NOT* capable of such mathematical
precision.
How could the founding fathers, if they intended to bar copyright laws,
libel laws, and laws authorizing actual government censorship of the
content and meaning of all writings have written the first amendment to
arrive at Barry's conclusion? Well, had they meant to do so, they could
have said "no law at all, notwithstanding any provisions of Article I,
Section 8 or governing defamation. . ."?
But by "no law" THEY meant no law, you argue, and they reasonably could
have meant that just by their writings? Fine, I agree with this point in
particular. But then we are talking about, not the meaning of the text per
se, but their intentions by those words, and that is another matter. At
any case, the Krush hypothesis has a long row to hoe here, for the first
Congress *did* pass a Copyright Act and did have libel laws. But this is
a substantive argument far deeper than the pithy, but vapid
> >Okay, Seth, let's start from square one. Does 2 = 2?
and I shall await the substantive replies thereto.
I regret that I did not have more time, or I would have written less.
Andrew C. Greenberg
In article <bk-110996...@ts4port17.port.net>, b...@interport.net
(BKrusch) wrote:
> In fact, of the Amendment's 10 key terms, 8 are unambiguous. 2 of the
> terms (used in Boolean logic) have a rigor that allows them to be used in
> computer languages like C, Pascal, Fortran, Hypertalk, etc, with
> flow-chartable meaning: "no" and "or". 2 other terms are defined in the
> Constitution: "Congress" (in Article I), and "law" at the Federal level (also
> in Article I, with a plain meaning at the State level and lower). The other 4
> terms, "make", "shall", "freedom", and "abridging", have clear meanings
> in everyday language.
Alas, the Constitution was not written in a programming langugage for
execution on a machine that oeprationally defines its semantics, but
in English to guide all of the affairs of citizens with its government.
Barry makes a dismal error here by presuming that words can be taken out
of context and reassembled, as though parsing a portion of a computer
language statement in a compiler, and reconstitute all the possible
meaning intended by those who promulgated the language.
> This leaves only 2 terms which can be seen as ambiguous, giving the
> green light for "broad" interpretation ("literal" interpretation is required
> for unambiguous provisions like "no").
Does "no" unambiguously mean none at all? Of course not, and I can
prove that in no time at all! In fact, I just did. The phrase "no,"
according to Webster's Third New International, the word "no" can mean,
inter alia, "hardly any."
*large snip*
> As the above examples show, the First Amendment is widely
> misunderstood. This amendment is not (as generally believed) a catch-all
> directive against Government regulation of speech. In this regard, the first
> word of the First Amendment is its most important word: Congress. We're
> talking about the "Federal" government here, not "government" in the
> abstract.
Well, if we are going to argue that the First Amendment trumps Art. I,
Sec. 8, I am afraid you are also stuck with the Fourteenth, which does
guarantee citizens due process, even under state laws. This meant an
incorporation of the first amendment protections at the state level as
well. As it turns out, however, almost all state constitutions have a
nearly identical provision -- the issue in most cases arises only when
state courts construing their identical state provision differ from the
Supreme Court's constructions of the first.
So, if you are trying to make us feel comfortable with your first amendment
absolutism by allowing the states to regulate speech of the fringe variety,
you have actually made me far more nervious. First of all, it doesn't work,
because the 14th (thank g-d!) precludes states from regulating flag burning.
Secondly, it gives me pause. Are you actually arguing that the state may
censor its citizens without limtiation at all under the Constitution?
BKrusch
In article <51ah1m$l...@senator-bedfellow.MIT.EDU>, se...@athena.mit.edu
(Seth Finkelstein) wrote:
> >Does "no" mean "no"?
>
> "no" what? The question is really what is an "abridgement" of
> freedom of speech.
OK, Seth, let's clarify this with a hypothetical from my book:
Can Time-Life, which holds the copyright to the Zapruder film, prevent CNN
from airing it in a documentary on the JFK assassination? If they can, and do,
does this abridge CNN's freedom of speech?
BKrusch
Andy writes:
Well, if we are going to argue that the First Amendment
trumps Art. I, Sec. 8, I am afraid you are also stuck with
the Fourteenth, which does guarantee citizens due
process, even under state laws. This meant an incorporation of
the first amendment protections at the state level as
well.
I devote a whole chapter and an additional 25 pages to this topic in my book.
Are you actually arguing that the state may censor its
citizens without limitation at all under the Constitution?
Yes, if the State doesn't have its own Bill Of Rights. But as you note,
As it turns out, however, almost all state constitutions
have a nearly identical provision -- the issue in most
cases arises only when state courts construing their
identical state provision differ from the Supreme Court's
constructions of the first.
Now for your best point:
Does "no" unambiguously mean none at all? Of course not,
and I can prove that in no time at all! In fact, I
just did. The phrase "no," according to Webster's Third New
International, the word "no" can mean, inter alia,
"hardly any."
A great counterexample! You've made me think here. I'm working on a response,
but I'd like your view of the meaning of the word "no" in the First Amendment.
Does it mean:
1) 0
2) A number greater than 0
3) Either 1 or 2
4) Both 1 or 2
5) Both 3 and 4
What do YOU think it means?
--
===========================================
Barry Krusch
http://www.krusch.com/real2.html
Rahul Dhesi
In <werdna-1309...@192.0.2.23> wer...@gate.net (Andrew C.
Greenberg) writes:
>...the [Constitution] ALSO says that the
>Supreme Court is the arbiter of cases and controversies arising under the
>Constitution, and that its appellate jurisdiction is as to all questions
>of law and fact.
On the face of it, this puts us in a bind. It means that the US Supreme
Court is always right, no matter what it does, simply because there is
no provision in the Constitution to appeal its rulings. (I guess even a
presidential pardon simply forgives a person for a crime but does not
declare that no crime was committed.)
But there is a saving grace! The Constitution only makes the Supreme
Court the final arbiter from a strictly legal perspective. We are
required to accept the Supreme Court's decisions as final and there is
no appeal. But we are not required to *agree* with them! We are
perfectly free to believe that the Supreme Court is grossly
misinterpreting the Constitution.
So, if Krusch does not actually believe that his interpretation of the
Constitution is the law of the land -- and I see no evidence that he
does -- the fact that the Supreme Court is the final arbiter does not in
any way affect his arguments. Those who question his arguments must
rely on some basis other than the rulings of the Court.
Ram Samudrala
Seth Finkelstein (se...@athena.mit.edu) wrote:
> Exactly what's kooky about my opinion that head-butting the First
>Amendment and copyright (presumably for an anti-copyright argument) is
>a rhetorical loser and legally quite difficult to do meaningfully?
>That sounds outright stolid to me.
That's not what I said was kooky. What is kooky is your argument that
you run into that stuff so often from would-be censors and therefore
it's more trouble than its worth. When you first said it, it was
totally out of the blue. Besides, as I've repeatedly stated, it's not
head-butting it---it's just a chapter. Also as I've said, Nimmer makes
the same argument and then wimps out at the end saying the First
Amendment cannot be construed literally.
> I also said I hate that argument, because I run into that stuff so
>often from would-be censors.
This is what I find odd. You like or dislike arguments because of how
often your "opponents" use it? What I also find odd is that this is
the first time I've heard anyone come up with the claim you're making,
and I've had a lot of arguments with would-be censors as well. So I'm
curious---is there any book/web page that makes this argument?
>the tax-loons. That's at worst *derision*, not _ad hominem_.
What's ad hominem is your dismissal of the arguments (for example,
assuming that the entire book is about First Amendment vs. Copyrights)
and simply calling it kooky (comparing to the tax-loons, etc.),
without refuting it (at least in my opinion). That's appealing to
people's feelings.
>you'd see that book is *not* really an argument for free speech or
>anti-copyright at all,
Did I say it was? You're the one who assumed this. I have repeatedly
stated that it's one chapter that's devoted to this issue (out of
15). I think the book illustrates how the First Amendment protections
has changed over the years. Barry starts with this flowchart at the
beginning and there's another one at the end. Those two alone are
enough. And the first flowchart should be an exercise in civics in
grade school, and the second one is done by a Cornell Professor (might
be a kook as well, but it's not Barry who did it). Those two
flowcharts alone, without the whole book, say a lot. THAT I think is
what the book is about.
> Any good dictionary will have a range of definitions. Which is The
>ONE TRUE MEANING?
There is none. But even with any extreme view, how can you deny
abridgement at least means "reduce" or "diminish" or "curtail"? To
this date, I've heard many people argue that the freedom of speech can
be abridged for "compelling state reasons".
And forget this book---if his quotes from Nimmer on Freedom of Speech
(the book) are right, here's what Nimmer, as quoted by Barry, writes:
[I]f a completely literal reading of the First Amendment is to be
made, then we must likewise recognize that the First Amendment is an
amendment, hence superseding anything inconsistent with it which may
be found in the main body of the Constitution. This, of course,
includes the Copyright Clause.... As illuminated in Reid v. Covert
(per Justice Black, incidentally): 'The United States is entirely a
creature of the Constitution. Its power and authority have no other
source. It can only act in accordance with all the limitations imposed
by the Constitution'. Any other conclusion would, of course, render
the First Amendment, as well as the remainder of the Bill of Rights,
meaningless.
Doesn't the First Amendment obliterate the Copyright Clause and any
laws passed pursuant thereto? This returns us to Justice Black's
absolutist approach. [Irrelevant -- BK] It cannot be denied that the
copyright laws do in some degree abridge freedom of speech, and if the
First Amendment were literally construed, [Federal! --BK] copyright
would be unconstitutional .
Again, quoting Nimmer at the end:
"If the word "no" means "no", Federal copyright law would be
unconstitutional."
And then Nimmer goes onto say such an absolutist approach must be
rejected. All fine and nice.
> I'd point out that this is the sort of *damage* nutty stuff like his
>can do. Now the next time the topic comes up, you're more likely to
>try to push a position that's absurd, and look very foolish in the
>process.
You know me that well, do you? <-:
What topic are you talking about The only time I push this (which I do
quite often these days) is when people ask "what has happened to the
First Amendment over the years?" I have enough arguments against
Copyright Law without appealing, of all things, to the First
Amendment.
--Ram
If you didn't care what happened to me, and I didn't care for you,
we would zig zag our way through the boredom and pain occasionally
glancing up through the rain wondering which of the buggers to blame
and watching for pigs on the wing. ---Pink Floyd
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
> Don't worry, we'll have this done in no time at all.
Are there laws that use the words "no time" in this manner? Should
laws use words in this manner? Aren't laws supposed to be as
unambiguous and as clear-cut as possible? Are you saying that laws
can be written in the form (for example): "This parking ticket must be
paid in no time" and that we can (and should?) interpret it to mean
"This parking ticket must be paid in a jiffy"? Further, are you
suggesting that the First Amendment was written with this sort of
intent?
> "no law" means, among other things, "hardly any" .
Your dictionary really defines "no law" to mean "hardly any"? I
presume you mean "no" to be "hardly any". While I agree this is fine
in the common use of the word, why didn't the BoR writers write:
"Congress shall pass hardly any law abridging..."? And when you think
of it, the BoR is an important document to most Americans. Don't you
think it's surprising that they'd leave an ambiguity like this without
clarifying it or making any exceptions as they desired?
What exactly could've been the motivation behind people to write "no"
instead of "hardly any"? Shouldn't this be amended (why leave it to
the courts)? Or even say "Congress shall pass zero laws abriding...
except for compelling state reasons." That would clarify things and
tell people who think the First Amendment allows them to say anything
they want that they can't.
I think it's hard to argue what the Founding Fathers were thinking.
If my memory of the Supreme Court cases with regards to the First
Amendment serves me right, the First Amendment was construed more
literally then than it is now.
I really believe, and it's not a big deal to me personally since I
don't appeal to the Constitution for moral guidance, that the
Constitution's setting of limits on the Federal Government has
basically eroded. It means little more than what Supreme Court Judges
(who are unelected) think they mean. This is all fine and dandy, but
I believe the public is misled on this issue. Any person, kook or
not, who brings this to light I think is doing a worthy thing.
Did the Founding Fathers really write the Bill of Rights? Did
Copyright Law come out after the BoR (the BoR was ratified in 1791 I
believe)? Is there a page on the www that /details/ how the BoR came
about? (I tried searching for it, but I came up with a load of junk
and the ones that had the history were too brief, like the ACLU
primer, but it had quite a bit of interesting info.)
Also as I have repeatedly said, the copyright law is just one chapter
out of 15 in Barry's book.
--Ram
Up on my podium as the know it all scholar.
Down in my seat of judgement gavel's bang, uphold the law.
Up on my soapbox a leader out to change the world. Down in my pulpit
as the holier than-thou-could-be messenger of god! ---Megadeth
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>Unfortunately, that reading of the constitution also requires
>deference to the Supreme Court's authority, because the cosntitution
>ALSO says that the Supreme Court is the arbiter of cases and
>controversies arising under the Constitution, and that its appellate
>jurisdiction is as to all questions of law and fact.
I'm definitely open to the idea that the Supreme Court is the ultimate
arbiter of what is law (and that would indeed resolve any
inconsistencies), but I'm not convinced that this power is granted to
it by the Constitution. If you're interested in convincing me, I have
a few questions:
If the Supreme Court can decide what is law, and what is not, in
general, doesn't this go beyond the scope of the powers of the
Judiciary? Why then does Article I one say "all legislative powers"?
Does this mean that "all" should be taken to mean "most"?
I presume when you say it's the ultimate arbiter of what is law,
you're referring to this sentence:
"In all the other cases before mentioned, the Supreme Court shall have
appellate jurisdiction, both as to law and fact, with such exceptions,
and under such regulations as the Congress shall make."
I do believe the Supreme Court is the ultimate arbiter of all court
cases. What I take this to mean is that for each case, the Supreme
Court can either decide whether a person's innocent or guilty. But I
don't see how the Supreme Court (from a literal reading of the
Constitution) can decide whether something's the law or not IN
GENERAL. I take that sentence above to mean in the cases to which the
Judicial Power extends ("all the other cases..."), the Supreme Court
/can/ decide whether a lower court judged right or wrong. In THOSE
specific cases. (I understand it's different in practice, but I'm
still sticking to the literal interpretation.)
When I read the Federalist Papers on the Judiciary by Hamilton a while
ago, I took this to mean, for example, that all the Supreme Court can
(and has to) do is judge that a law, as executed in a specific case,
is "an abridgement of speech". This immediately renders it void,
because of the First Amendment (and by extension---not authorised by
the Constitution as far as I can see, but I'd be happy if someone
corrected me---in all cases of the same nature). I did not take it to
mean that the Supreme Court could judge laws that DID abridge speech
to be okay as long as the government had a compelling interest. I'll
give them another look, especially 78 which you just cited, but I'd be
happy to have any quotes that prove me wrong.
In any case, to say that there are no laws that violate the First
Amendment, and that there's nothing in the Copyright statutes that
violate the First Amendment, even assuming a liberal (not literal)
interpretation of the First Amendment, is deluding yourself. I argue
there are, and I argue there're a lot more today than there were 100
years ago, and the question, for me at least, how does this scale.
Personally, I've yet to a see a convincing argument against the
literal constructions made so far. And to me it's merely an academic
argument, because to believe the Constitution one way or another is to
give credence to its statements not all of which I agree with---so my
mind is fairly open on this topic. Since I don't believe in the notion
of intellectual property (State or Federal Copyrights are equally
unappealing to me), and since I don't believe in human made law
(artificial top-down law, as I call it), it's all irrelevant except as
an academic exercise.
Your argument that the literal reading is ignoring the history,
interpretations by judges, etc. is bogus. Laws aren't made for
historians or judges. They're made for the common people. They
should, on their own, stand as clearly and as umambiguously as
possible. In cases where there is ambiguity, it should be clarified
what the nature of the ambiguity is (like in the Fair Use doctrine).
As I said, I'm definitely open to the idea that the Judges can decide
what is or what is not law (not just for specific court cases) in a
given situation, where situation is a general form of a court case.
That would technically resolve ALL inconsistencies.
--Ram
He is most powerful who has himself in his own power. ---Seneca
Rahul Dhesi
>I'm definitely open to the idea that the Supreme Court is the ultimate
>arbiter of what is law (and that would indeed resolve any
>inconsistencies), but I'm not convinced that this power is granted to
>it by the Constitution.
I don't think this power is really and truly granted to the Supreme
Court by the Constitution. One could make a case that the Supreme
Court's role is only advisory, i.e., it is supposed to resolve
ambiguities, but what it says is ultimately only a recommendation to
Congress, and Congress ultimately rules.
And in fact, *to an extent* this really is the case. Every time a
federal law is ruled unconstitutional Congress goes right on to pass
another one that does pretty much the same thing. Watch this in action
as the infamous Communications Decency Act comes back again and again
during the next two years.
But more than this, I believe the reason the Court's decisions are
respected as final (even modulo the previous paragraph) is that that is
what precedent says. Once you have sufficient precedent for something,
it becomes right, no matter how wrong it may be. Another way of
describing this is:
Slippery slope.
By virtue of the fact that Congress often chose to abide the Supreme
Court's decisions, the Supreme Court has managed to slide way down (or
up) to a position of greater power than the Constitution really grants
it. This happens most often when legislators without a spine wait for
the Supreme Court to rule something unconstitutional instead of not
passing the bad law to begin with.
Such things are true of government in general. As a result, a document
that was supposed to limit the powers of Congress has now become now
become a document that blesses pretty much any government action, under
the guise of concepts such as police power and regulation of business.
Civil forfeiture is a nice example -- how many different parts of the
Constitution does it violate? Unreasonable seizure, cruel and unusual
punishment, due process, private property taken for public use without
just compensation.
BKrusch
> Barry starts with this flowchart at the
> beginning and there's another one at the end. Those two alone are
> enough. And the first flowchart should be an exercise in civics in
> grade school, and the second one is done by a Cornell Professor (might
> be a kook as well, but it's not Barry who did it). Those two
> flowcharts alone, without the whole book, say a lot. THAT I think is
> what the book is about.
Precisely!
===========================================
Barry Krusch
Would the Real First Amendment Please Stand Up? @
http://www.krusch.com/real2.html
===========================================
Andrew C. Greenberg
In article <bk-130996...@ts3port20.port.net>, b...@interport.net
(BKrusch) wrote:
> OK, Seth, let's clarify this with a hypothetical from my book:
>
> Can Time-Life, which holds the copyright to the Zapruder film, prevent CNN
> from airing it in a documentary on the JFK assassination? If they can, and do,
> does this abridge CNN's freedom of speech?
Nimmer has of course written extensively on the subject. The difficulty, of
course, is the other question, whether CBS can keep CNN from
rebroadcasting its newsreports, saving the cost of running a newsroom at
all?
Andrew C. Greenberg
> In <51ccpa$6...@hecate.umd.edu> r...@mbisgi.umd.edu (Ram Samudrala) writes:
>
> >I'm definitely open to the idea that the Supreme Court is the ultimate
> >arbiter of what is law (and that would indeed resolve any
> >inconsistencies), but I'm not convinced that this power is granted to
> >it by the Constitution.
>
> I don't think this power is really and truly granted to the Supreme
> Court by the Constitution. One could make a case that the Supreme
> Court's role is only advisory, i.e., it is supposed to resolve
> ambiguities, but what it says is ultimately only a recommendation to
> Congress, and Congress ultimately rules.
I agree, and in fact, I find Marbury v. Madison to be a difficult pill
to swallow. However, if you adopt a strictly textualist construction,
your are stuck. If you are willing to "make a case" and wiggle around
the meanings of the words, that's fine, but there goes your "'no law'
can mean nothing but no law" hermeneutics.
> Another way of describing this is:
>
> Slippery slope.
I agree: just about any "simple" rules for construing the meaning of
as complex (or simple) a document as the Constitution, let alone the
massive body of law that is the U.S. legal system is destined to eat
itself up with inconsistencies.
Indeed, in a sense, the exercise and practice of law is learning to
resolve disputes *DESPITE* those inconsistencies, not to close your
eyes, pick some casual rhetoric to arrive at pabulum black-letter
rules, and make up your own version of the law, pretending the conflicts
don't exist. That is the worst jurisprudential conceit: believing that
your hermeneutics are inherently right, rather than normatively arrived
at as a point of convenience for your own politics. [Speaking as a crit.]
Andrew C. Greenberg
In article <bk-130996...@ts3port29.port.net>, b...@interport.net
(BKrusch) wrote, in response to my remarks:
> Does "no" unambiguously mean none at all? Of course not,
> and I can prove that in no time at all! In fact, I
> just did. The phrase "no," according to Webster's Third New
> International, the word "no" can mean, inter alia,
> "hardly any."
>
> A great counterexample! You've made me think here. I'm working on a response,
> but I'd like your view of the meaning of the word "no" in the First Amendment.
> Does it mean:
>
> 1) 0
> 2) A number greater than 0
> 3) Either 1 or 2
> 4) Both 1 or 2
> 5) Both 3 and 4
>
> What do YOU think it means?
I think it means a form of Japanese theatre, of course.
My point, Barry, is simply this: the word cannot be taken out of context
or in the abstract, and I mean context in the sense of reading "in pari
materia" with the rest of the Constitution, in the sense of reading it, in
the historical context in which it was written, and in the sense of the
intention of the founding fathers. (You see, the words "out of context"
was also used to mean many more than just one thing in that last
sentence.)
Out of a credible context, it has "no" meaning at all.
I, like you, shudder at the censorship of speech by reason of its
content, particularly when it ceases to permit the expression of an IDEA.
I don't really buy into the hierarchy of exceptions the Court has created
over the years, but I buy generally into the idea that "no law" doesn't
really mean no laws at all. And the reason I truly bristle at your work,
is that my usual examples of the kind of speech that you are particularly
targeting: theft of expression protected by copyright and defamation by
making knowingly false statements.
I join you with respect to most other examples, but these particular ones,
I believe, have a substantial historical justification. Your paper seems
to ignore that context.
Andrew C. Greenberg
> Andrew C. Greenberg (wer...@gate.net) wrote:
>
> >Unfortunately, that reading of the constitution also requires
> >deference to the Supreme Court's authority, because the cosntitution
> >ALSO says that the Supreme Court is the arbiter of cases and
> >controversies arising under the Constitution, and that its appellate
> >jurisdiction is as to all questions of law and fact.
>
> I'm definitely open to the idea that the Supreme Court is the ultimate
> arbiter of what is law (and that would indeed resolve any
> inconsistencies), but I'm not convinced that this power is granted to
> it by the Constitution. If you're interested in convincing me, I have
> a few questions:
>
> If the Supreme Court can decide what is law, and what is not, in
> general, doesn't this go beyond the scope of the powers of the
> Judiciary? Why then does Article I one say "all legislative powers"?
> Does this mean that "all" should be taken to mean "most"?
Once again, I do not believe in the absolute textualism adopted by Krush.
I simply point out that the argument that "'no law' means no law" cannot
pass the red-face test if one isn't willing to accept that
"'all powers' means all powers." (Or more directly "'no law' means
zero laws" without also accepting that "'all powers' means every power.")
> Your argument that the literal reading is ignoring the history,
> interpretations by judges, etc. is bogus.
Saying so doesn't make it so.
> Laws aren't made for
> historians or judges. They're made for the common people.
Saying so doesn't make it so.
> They
> should, on their own, stand as clearly and as umambiguously as
> possible.
I agree, but English is not Fortran nor Algol, and its meaning cannot be
construed uniquely in the abstract. Reasonable people may look at the
same text and disagree as to what it means, or what it should mean.
Accordingly, we try to find neutral principles to determine how best to
construct the Constitution: textualism, originalism, common law
adjudication, and combinations of those principles. Accordingly, we
also set up processes for resolving those disputes when individuals
cannot agree and a resolution is necessary, and empower certain people
to make those determinations.
And if you don't buy that, take the absolutist textualist reading of Art.
III. Alternatively, read some of the sources I suggested, Wellingon and
Bork for example. I can recommend others as well, if you are truly
interested.
> In cases where there is ambiguity, it should be clarified
> what the nature of the ambiguity is (like in the Fair Use doctrine).
Huh? What did that mean? Who should clarify things? How? And
how shall the ambiguity be resolved?
Andrew C. Greenberg
> Andrew C. Greenberg (wer...@gate.net) wrote:
>
> > Don't worry, we'll have this done in no time at all.
>
> Are there laws that use the words "no time" in this manner? Should
> laws use words in this manner? Aren't laws supposed to be as
> unambiguous and as clear-cut as possible?
Sure. But what if they are not? Saying that your preferred construction
is superior because you see it more clearly than another is hardly an
argument for that construction.
> Are you saying that laws
> can be written in the form (for example): "This parking ticket must be
> paid in no time" and that we can (and should?) interpret it to mean
> "This parking ticket must be paid in a jiffy"? Further, are you
> suggesting that the First Amendment was written with this sort of
> intent?
I thought you were a strict textualist, and intent was beside the point.
If intent is relevant, let's talk about their intent. If they meant by
"no law" to exclude a Copyright Act, why did they pass one? If they meant
by no law to exclude a libel action, how come they had one with nearly
identical language in state bills of rights?
I agree. Intent *is* relevant. Common law adjudication principles *are*
relevant. The rest of the Constitution as a whole *is* relevant. So can
we drop the absolutist hogwash and get back to reasoning?
> > "no law" means, among other things, "hardly any" .
>
> Your dictionary really defines "no law" to mean "hardly any"?
Page 1532.
> I presume you mean "no" to be "hardly any". While I agree this is fine
> in the common use of the word, why didn't the BoR writers write:
> "Congress shall pass hardly any law abridging..."?
Why didn't they write "no law at all?" If you are supposing their intent
was relevant, you have to go back to the arguments made above, which you
so conveniently argued when you thought that "2=2" was a good argument.
> And when you think
> of it, the BoR is an important document to most Americans. Don't you
> think it's surprising that they'd leave an ambiguity like this without
> clarifying it or making any exceptions as they desired?
Actually, the Constitution as a whole was, in the words of the founders
themselves, frought with ambiguity -- and intentionally so. The BoR was
especially designed that way, with fuzzy words like "abridgment of freedom"
(how much interference is an abridgment?) due process (procedural or
substantive, how much process is due?), reasonable searches and seizures,
probable cause.
The founders saw themselves as visionaries, not as architects. They were
right. The Constitution survives (and passed in the first place) because
it was a document of great compromises, with myriads of meanings so that it
could be embraced (sort of) by everybody, though everybody found something
wrong with it.
>
> What exactly could've been the motivation behind people to write "no"
> instead of "hardly any"? Shouldn't this be amended (why leave it to
> the courts)? Or even say "Congress shall pass zero laws abriding...
> except for compelling state reasons." That would clarify things and
> tell people who think the First Amendment allows them to say anything
> they want that they can't.
If motivation is relevant -- read the history. Look at what they _did_
and what they _wrote_. Then tell me how you can arrive at "zero laws."
> I think it's hard to argue what the Founding Fathers were thinking.
> If my memory of the Supreme Court cases with regards to the First
> Amendment serves me right, the First Amendment was construed more
> literally then than it is now.
Really? The first Congress passed an anti-sedition act, which passed
muster for quite some time.
Seth Finkelstein
In article <werdna-1309...@192.0.2.23> wer...@gate.net (Andrew C. Greenberg) writes:
>In article <519afj$1...@senator-bedfellow.MIT.EDU>, se...@athena.mit.edu
>(Seth Finkelstein) wrote:
>> You can call this _ad hominem_, but the whole tone of your
>> writing just screams to me "Legal kook! Stay away!".
>construing the First Amendment. On the other hand, when faced with the
>infantile rhetorical nonsense, "Does 2=2?", rather than replying by
>calling the person a kook, it is far more impressive to answer. "Of
>course, and your point is?" and expose the argument, not as one that is
>merely kooky, as one that is, actually wrong, or at most substantively empty.
Actually, I think you're completely correct. It would indeed be
far more impressive for me to write detailed refutations. It would also
take me far more time, effort, and typing. I mostly started in this
thread in response to Ram asking "I was wondering what people thought of
the book ...". I did not take this to mean "Is anyone interested in
supporting their opinion of this book with a long and detailed
discussion ..." (literalism vs interpretationalism!). I thought I could
simply tell him it sounded absurd and kooky to me, without have to
spending a lot of time in extensive argument backing up my impression of
it. But of course, I should know better by now ...
I'm really not very interested in that book, I'm busy with RSACi
and Demon Internet and such this week, which I regard as far more
important. I think your responses have been well-thought out and
excellent, and you seem to have more patience to engage Mr. Krusch and
his arguments. Thus, you're welcome to him.
Seth Finkelstein
In article <51c47t$6...@hecate.umd.edu> m...@ram.org writes:
>Seth Finkelstein (se...@athena.mit.edu) wrote:
>> Exactly what's kooky about my opinion that head-butting the First
>>Amendment and copyright (presumably for an anti-copyright argument) is
>>a rhetorical loser and legally quite difficult to do meaningfully?
>>That sounds outright stolid to me.
>
>That's not what I said was kooky. What is kooky is your argument that
>you run into that stuff so often from would-be censors and therefore
>it's more trouble than its worth. When you first said it, it was
>totally out of the blue.
No it wasn't. YOU ASKED (reference id <50ktf3$n...@hecate.umd.edu>):
"I was wondering what people thought of the book, AND IN GENERAL,
of the argument that Federal Copyright Law is a violation of
the First Amendment?" (emphasis added)
I then told you what I thought of it, in a general context. So
why in the world are you now turning around and saying it's "kooky" and
"was totally out of the blue"?
> Besides, as I've repeatedly stated, it's not head-butting it---it's just
> a chapter. Also as I've said,
Again, I was responding to your question above. What I mean by
"head-butting" is the very crude sort of "Copyright law is
unconstitutional because it's a law and the First Amendment says 'no
law' ". I meant my phrasing not to exclude the people who talk about "fair
use", so someone didn't muddy the discussion by saying "But there is a
First-Amendment consideration in copyright law in terms of "fair use",
are you saying that's not a good legal basis for argument?". In effect,
I was trying to say that there certainly can be reasonable arguments on
the topic, but this one-or-the-another is just useless.
> Nimmer makes the same argument and then wimps out at the end saying the
> First Amendment cannot be construed literally.
Yes, same as with death threats and libel and so on. This is a
*common* argument. Schematically, it's "X is words, if 'speech' == 'any
words', the literal reading of the First Amendment means that there
can't be a law against X". The law-prof then goes on to say "Thus, the
First Amendment can't be taken so literally" (the censorship advocate
then tries to add on by implication or confusion "Thus, free speech has
no meaning"). What Krusch does is to say "In fact, the law-prof is wrong
'there can't be a law against X' is in fact the correct conclusion, and
this doesn't produce an absurdity because the First Amendment only
applies to Congress, so the problems are the domain of the States". Then
the question becomes "But what about First Amendment provisions in the
*State* constitutions?", and Krusch doesn't answer that (well, actually
he says stuff like "Does 2 = 2?", but that isn't very helpful - and I
call him a kook, because my patience is short on this, and perhaps that's
not helpful either, but it is what I think).
>> I also said I hate that argument, because I run into that stuff so
>>often from would-be censors.
>
>This is what I find odd. You like or dislike arguments because of how
>often your "opponents" use it?
Yes. Some arguments grate on me for that reason. This one is
rather a peeve of mine.
> What I also find odd is that this is
>the first time I've heard anyone come up with the claim you're making,
>and I've had a lot of arguments with would-be censors as well. So I'm
>curious---is there any book/web page that makes this argument?
Are you looking "for" or "against"? Just check anything under
such topics as "First Amendment absolutism". If you want, I'll mail you
a whole long discussion I've got archived from when the infamous Matt Elkin
was running that sort of line in defense of the Communications Decency act.
>>the tax-loons. That's at worst *derision*, not _ad hominem_.
>
>What's ad hominem is your dismissal of the arguments (for example,
>assuming that the entire book is about First Amendment vs. Copyrights)
I never did this.
>and simply calling it kooky (comparing to the tax-loons, etc.),
>without refuting it (at least in my opinion).
>That's appealing to people's feelings.
No, it was telling you my opinion of it. Surely you see the
problem in requiring me to write a detailed refutation of something I
think isn't worth even reading, in order to state that opinion.
>> Any good dictionary will have a range of definitions. Which is The
>>ONE TRUE MEANING?
>
>There is none. But even with any extreme view, how can you deny
>abridgement at least means "reduce" or "diminish" or "curtail"? To
>this date, I've heard many people argue that the freedom of speech can
>be abridged for "compelling state reasons".
Indeed, what IS the meaning of the First Amendment has had many
books written on it. But the "speech == any words" one is absurd.
>And forget this book---if his quotes from Nimmer on Freedom of Speech
>(the book) are right, here's what Nimmer, as quoted by Barry, writes:
See the above response on this.
>> I'd point out that this is the sort of *damage* nutty stuff like his
>>can do. Now the next time the topic comes up, you're more likely to
>>try to push a position that's absurd, and look very foolish in the
>>process.
>
>You know me that well, do you? <-:
It's an estimation 1/2 :-).
>What topic are you talking about The only time I push this (which I do
Copyright, freedom of speech, etc. It's a perennial topic.
Ram Samudrala
Seth Finkelstein (se...@athena.mit.edu) wrote:
>thread in response to Ram asking "I was wondering what people thought
>of the book ...".
For the record, that's all I wanted from you. After I thanked you for
your opinion, you diappeared for a while, and then came into the fray.
Believe it or not, one of the things I hate most is a thread dragging
on and on (I know people would scoff at this, but I have those
proteins to fold). Unfortunately, I'm too stubborn to quit.
--Ram
The heart has 4 chambers. ---Jan Pedersen
But not one good plate reverb. ---Derek Sivers
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>I simply point out that the argument that "'no law' means no law" cannot
>pass the red-face test if one isn't willing to accept that
>"'all powers' means all powers."
Yes, I agree. I do think all powers means ALL powers. I think the
least lawmakers can do is spell out what they mean.
>> Laws aren't made for
>> historians or judges. They're made for the common people.
>Saying so doesn't make it so.
What do you think are the purpose of laws?
>I agree, but English is not Fortran nor Algol, and its meaning cannot be
>construed uniquely in the abstract. Reasonable people may look at the
>same text and disagree as to what it means, or what it should mean.
That's fine. Why not have an amended First Amendment which Barry
calls "the Real First Amendment"? Are the lawmakers afraid that the
court rulings (saying the law isn't unconstitutional) will not pass
the ratification test? Perhaps that's what's necessary for every (I
mean anything greater than 0) law that abridges speech.
>Huh? What did that mean? Who should clarify things? How? And
>how shall the ambiguity be resolved?
What it means and how the ambiguity will be resolved will be STATED to
be based on what the Courts decide. Or have a formal doctrine for
common law.
--Ram
The future belongs to those who believe in the beauty of their dreams.
---Eleanor Roosevelt
Ram Samudrala
Seth Finkelstein (se...@athena.mit.edu) wrote:
> No it wasn't. YOU ASKED (reference id <50ktf3$n...@hecate.umd.edu>):
> "I was wondering what people thought of the book, AND IN GENERAL,
> of the argument that Federal Copyright Law is a violation of
> the First Amendment?" (emphasis added)
> I then told you what I thought of it, in a general context. So why
>in the world are you now turning around and saying it's "kooky" and
>"was totally out of the blue"?
I apologise for saying it was out of the blue. I clearly asked for
it. On the other hand, that doesn't change the kookiness
factor---it's just that I find it incongrous coming from you, that's
all. Since you say it's a pet peeve, I guess I'll leave it that, but
let me assure you that when I first read it, that's how it struck me
(and it still strikes me as funny).
> Yes, same as with death threats and libel and so on.
Then why not list the exceptions? Surely death threats and libel were
around at the time the people who came up with the BoR were. At what
point does one draw the line, and why isn't the line spelled out in
the Constitution, but is instead left to the courts? And where does
it is say in the Constitution it should be left to the courts?
I am a free speech absolutist---I take what I call the "sticks and
stones" position, and construing the First Amendment literally would
damage my position as much as it helped it. But that is not my point
in this thread here, nor do I think it's the point of Barry's book.
The point is that you have all these exceptions and inconsisties, when
I feel, on the surface at least, it could've been clarified at least
to some degree. These exceptions exist, as Barry details in ihs
private mythologies, but yet, as he points out in his public
mythologies section, there are people who are either misled
intentionally or unintentionally.
> Indeed, what IS the meaning of the First Amendment has had many
>books written on it. But the "speech == any words" one is absurd.
Do you disagree with these (again, you don't have to say "why"---an
yes or no or "no comment" will do---but feel "free" to write as much
as you wish) statements: There are some laws, passed by Congress, that
do violate the First Amendment and are unconstitutional. At least
some portions of the Federal Copyright Law abridge the freedom of
speech and the freedom of press (and therefore violate the First
Amendment).
Anyways, I think the former is more the point than the latter.
And I'm not going to go into the rest of this, since I don't want to
argue whether you're really a kook or not. (:
--Ram
I don't know why I want to fly I try to sigh I try to cry make me high
and then they try to get me down I want to buy make me fly get me high
so I can try let me try little birdy start to cry so happy. ---Ween
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>Sure. But what if they are not?
Then it should be made clear who exactly has the authority to resolve
the ambiguity.
>I thought you were a strict textualist, and intent was beside the point.
I think the two positions are separate. I don't think one position is
superior to the other, though I general prefer a textual
interpretation. I can argue with regards to intent as well, but it's
harder (not the argument, but what the intent means). I also think the
misleading thing creeping into this discussion is that I (and others
with similar arguments) are "strict textualists". Even with fairly
liberal views, it's hard for me to see how at least some sections of
Federal Copyright Law do not abridge speech.
>If intent is relevant, let's talk about their intent. If they meant by
>"no law" to exclude a Copyright Act, why did they pass one?
And likewise with the reverse argument: if they did mean to exclude
Copyright Act, why didn't say or so, or write "no law"? (When was the
First Copyright Act passed anyway?) Perhaps what they wanted was a
clause in the form "except for compelling interests of the people, as
decided by the Supreme Court." Perhaps they didn't consider
copyrighted works (and "writings") at that time to be "speech".
There're a lot of explanations---but certainly not one that covers
everything. Perhaps another amendment that says the Supreme Court has
the power to decide what is and what is not a violation of the BoR is
necessary. Who knows?
>> Your dictionary really defines "no law" to mean "hardly any"?
>Page 1532.
Surely you're not saying "no law" == "hardly any". I was just
nitpicking, for fun, but anyways, it's not important.
>Why didn't they write "no law at all?" If you are supposing their intent
>was relevant, you have to go back to the arguments made above, which you
>so conveniently argued when you thought that "2=2" was a good argument.
I still think it is. I think saying "no law at all" is synomous with "no
law". Sorta like saying "zero and nothing more than zero". It's just
redundancy, since "no law at all" could also mean "hardly any law at
all" (like in "I'll be done in no time at all"). That doesn't solve
any problems AFAICS.
>The founders saw themselves as visionaries, not as architects. They were
>right. The Constitution survives (and passed in the first place) because
>it was a document of great compromises, with myriads of meanings so that it
>could be embraced (sort of) by everybody, though everybody found something
>wrong with it.
Perhaps. I remain unconvinced, however, but really my point is do you
deny that it's not wholly unreasonable to say that the Constitution,
for the most part, as far as legislators are justices are unconcerned,
has become irrelevant? Why, Clinton himself said "it's a radical
document" as if that were something bad. Part of this has to do with
this over-interpretation thing which I am also not convinced the
courts really have the authority to do. With regards to your query,
any abridgement is a violation. That's my view, and I don't hold
it to be supreme. I see no validity for the Supreme Court view
(if it's an opposing one) either.
>If motivation is relevant -- read the history. Look at what they _did_
>and what they _wrote_. Then tell me how you can arrive at "zero laws."
I can arrive at "zero laws with these exceptions..." There ARE a few
exceptions. The point is why wasn't it spelt out, and why wasn't it
spelt out who can decide them.
>> I think it's hard to argue what the Founding Fathers were thinking.
>> If my memory of the Supreme Court cases with regards to the First
>> Amendment serves me right, the First Amendment was construed more
>> literally then than it is now.
>Really? The first Congress passed an anti-sedition act, which passed
>muster for quite some time.
Again, was this before the BoR was ratified? The First Congress
convened in 1787 (if memory serves right---I'm at home on a 2400 baud
modem). The BoR was passed in 1791. In any case, I do believe more
and more exceptions have been carved out over the years. In some
sense, the protections given have expanded (removal of racial and
gender bias, etc.) and in some ways, the definition of what "speech"
is has been contrued very literally, but unfortunately or fortunately,
the negatives are what count since it means a violation of the oath
these people take.
--Ram
Andrew C. Greenberg
> That's fine. Why not have an amended First Amendment which Barry
> calls "the Real First Amendment"? Are the lawmakers afraid that the
> court rulings (saying the law isn't unconstitutional) will not pass
> the ratification test? Perhaps that's what's necessary for every (I
> mean anything greater than 0) law that abridges speech.
Because, dear Ram, nobody seriously questions the constitutionality of
the Copyright Act. The libel action has been remarkably revised in the
past thirty years, since New York Times v. Sullivan essentially added
a constitutional review element. In other words, because the first
amendment, for the most part, and to an extent greater than anywhere
else on earth, works.
But mostly, because the worst possible thing that could be accomplished
is to try to get the issue on the table. Most Americans despise the
first amendment, because they despise the speech they have seen. Given
the chance, it is far more likley that the result of the slightest
change to that wonderful, wonderful document would be a first amendment
littered with special exceptions for flag-burning, for non-obscene
pornographics expression, and so forth.
Andrew C. Greenberg
> Andrew C. Greenberg (wer...@gate.net) wrote:
>
> >Sure. But what if [laws] are not?
>
> Then it should be made clear who exactly has the authority to resolve
> the ambiguity.
You find no ambiguity in the first amendment, yet doubt the Court's
power to say what the Constitution means?
> >I thought you were a strict textualist, and intent was beside the point.
>
> I think the two positions are separate. I don't think one position is
> superior to the other, though I general prefer a textual
> interpretation.
And when they lead to different results, who is to determine which
principal to apply?
> I can argue with regards to intent as well, but it's
> harder (not the argument, but what the intent means). I also think the
> misleading thing creeping into this discussion is that I (and others
> with similar arguments) are "strict textualists". Even with fairly
> liberal views, it's hard for me to see how at least some sections of
> Federal Copyright Law do not abridge speech.
And what do you call an analysis that argues that "no law" precludes
a Copyright Act, despite the existence of one in the United States
almost immediately upon passage of the Constitution? that "no law"
precludes an action against libels? I call it one that clearly
ignores the meaning assigned to the First Amendment by the parties.
> >If intent is relevant, let's talk about their intent. If they meant by
> >"no law" to exclude a Copyright Act, why did they pass one?
>
> And likewise with the reverse argument: if they did mean to exclude
> Copyright Act, why didn't say or so, or write "no law"? (When was the
> First Copyright Act passed anyway?)
I inquire how you think this is relevant. My point is that no
contradiction exists. I argue that whatever the Constitution meant,
including the Bill of Rights, the authors meant it not to preclude an
action against libels nor an action against copying. That reasonable
people read this language and understand it to mean something other than
your literalist construction that "'no law' means no law" and that
abdidgment means "the slightest narrowing."
You inquire what they might have meant by the words. I responded to your
remark that their intent was relevant with evidence that their intent
could *NOT* have meant what you presume they meant. You replied by
restating the literalist argument in another form: "then why did they use
these words."
> Perhaps what they wanted was a
> clause in the form "except for compelling interests of the people, as
> decided by the Supreme Court." Perhaps they didn't consider
> copyrighted works (and "writings") at that time to be "speech".
> There're a lot of explanations---but certainly not one that covers
> everything.
Not everything, but certainly it deals with the issues now on the
table: defamation and Copyright.
> >> Your dictionary really defines "no law" to mean "hardly any"?
>
> >Page 1532.
>
> Surely you're not saying "no law" == "hardly any". I was just
> nitpicking, for fun, but anyways, it's not important.
Sorry, I missed your point. No problem.
> >Why didn't they write "no law at all?" If you are supposing their intent
> >was relevant, you have to go back to the arguments made above, which you
> >so conveniently argued when you thought that "2=2" was a good argument.
>
> I still think it is. I think saying "no law at all" is synomous with "no
> law". Sorta like saying "zero and nothing more than zero". It's just
> redundancy, since "no law at all" could also mean "hardly any law at
> all" (like in "I'll be done in no time at all"). That doesn't solve
> any problems AFAICS.
You don't see the difference, discussed at length before, between
a sentence of the form "2=2", which asserts an equation between two
denotations, or ambiguously, asserts an equation between the referents
of the two denotations, and "'2'=2," which asserts, proabably falsely
depending upon the semantics of the expression langugage, an equation
between the denotation and the referents.
Going further, You don't see the difference between an equation of
a thing with itself (a tautology), and the equation of a thing with
a different thing?
Krush didn't make the argument that "'no law' = 'no law'", with which
I will never disagree, but it only asserts an identity of two strings.
He made the argument that "'no law' MEANS no law" in a particular
context in a particular document. The latter is *NO* tautology, and
requires a far deeper and more substantive analysis.
> Perhaps. I remain unconvinced, however, but really my point is do you
> deny that it's not wholly unreasonable to say that the Constitution,
> for the most part, as far as legislators are justices are unconcerned,
> has become irrelevant? Why, Clinton himself said "it's a radical
> document" as if that were something bad.
He didn't mean that to assert that it was bad, and you know it. He meant
that it was a radical document, which it was. In terms of its relevance,
that issue cannot be doubted. The First Amendment was used this past year
to shut down more government action than any other clause of the
constitution (rhetorical shot, I didn't make a quantitative analysis).
Even the radically right-wing court we have today is ultra- liberal by
world-wide political spectra when it comes to freedom of speech. Scalia,
the darling of the right, is nevertheless a first amendment absolutist.
The document is *NOT* irrelevant. It just doesn't get interpreted the way
you would have it be interpreted. You have your own normative agenda, and
the construction you desire would be an absolutist one. That doesn't make
your textual absolutism (which you have already disclaimed) the only means
to read the constitution.
The relevance of the document is manifest by the numeber of state actions
that have this year been declared unconstitutional. The CDA is only one
such example.
> Part of this has to do with
> this over-interpretation thing which I am also not convinced the
> courts really have the authority to do. With regards to your query,
> any abridgement is a violation. That's my view, and I don't hold
> it to be supreme. I see no validity for the Supreme Court view
> (if it's an opposing one) either.
Article III. You can't selectively decide what text to read literally.
> >If motivation is relevant -- read the history. Look at what they _did_
> >and what they _wrote_. Then tell me how you can arrive at "zero laws."
>
> I can arrive at "zero laws with these exceptions..." There ARE a few
> exceptions. The point is why wasn't it spelt out, and why wasn't it
> spelt out who can decide them.
Ram. the reason they didn't spell things out is manifest in the history
of the Constitution and the Bill of Rights. Madison was a nut on the
issue of not enumerating things. Indeed, he didn't want to have a bill
of rights because of his fear that enumerating some rights would lead to
the inference that no other rights are reserved to citizens. Even the
presence of an amendment expressly stating this hasn't kept the court
and certain scholars from refusing to recognize some rights on precisely
that ground.
The founding fathers did not preume themselves capable of anticipating
everything, and certainly didn't have the time to do what you ask. The
Constitution itself was a miracle, given the substantial differences
between the states. The Bill of Rights, arrived at a somewhat more
leisurely pace, was still drafted with an eye towards it being part of
a living document.
> In any case, I do believe more
> and more exceptions have been carved out over the years. In some
> sense, the protections given have expanded (removal of racial and
> gender bias, etc.) and in some ways, the definition of what "speech"
> is has been contrued very literally, but unfortunately or fortunately,
> the negatives are what count since it means a violation of the oath
> these people take.
The first amendment is construed more broadly today than it ever was
during the early years of our nation. Many more types of laws are deemed
today to be proscribed, in part, because of the elaborate gloss imposed on
those words by 200+ years of judicial work, notwithstanding those
exceptions.
As to whether it means a violation of an oath, remains to be seen. You
discount hundreds of years of thought on the subject with a simplistic
textualist analysis, unsupported by authority, history or the dictionary,
and assert that people who have dedicated their lives to upholding the
Constitution have perjured themselves.
You are entitled to your opinions of course, and because of the Bill of
Rights, as presently construed, you have an absolute right to express
them. (Not true in the founder's day, when the sedition acts were
enforced.) Your right to express them, however, does not relieve you of
your obligation to justify them. So far, it's still mere gainsay, denial
of authorities cited by others to the contrary, and restatement of a
simplistic argument from which you have already receded twice to avoid its
contradictions.
BKrusch
(Andrew C. Greenberg) wrote:
>What do YOU think it means?
My point, Barry, is simply this: the word cannot be taken
out of context or in the abstract, and I mean context in
the sense of reading "in pari materia" with the rest of
the Constitution, in the sense of reading it, in the
historical context in which it was written, and in the sense
of the intention of the founding fathers.
I agree with you! So what do YOU think "no" means in FA1791?
> 1) 0
> 2) A number greater than 0
> 3) Either 1 or 2
> 4) Both 1 and 2
> 5) Both 3 and 4
=================================================
Barry Krusch
Would the Real First Amendment Please Stand Up? @
http://www.krusch.com/real2.html
=================================================
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>Because, dear Ram, nobody seriously questions the constitutionality of
>the Copyright Act.
What about Nimmer? Or for that matter, the Supreme Court case that
Barry talks about (Smith vs. California 375 U.S. 259 (1963)). In
fact, this sort of thing is why I asked people what they thought of
it---given my ignorance, I mostly have to take Barry at his word when
he cites stuff until I have a chance to go look it up (like that case
above sounds highly interesting). Whereas I presume more people here
are familiar with such cases.
>amendment, for the most part, and to an extent greater than anywhere
>else on earth, works.
It depends on what you consider "most", but this might be about the
only thing we agree on.
--Ram
And the strange flavour of AI work is that people try to put together
long sets of rules in strict formalisms which tell inflexible machines
how to be flexible. ---Douglas Hofstadter
Ram Samudrala
Andrew C. Greenberg (wer...@gate.net) wrote:
>You find no ambiguity in the first amendment, yet doubt the Court's
>power to say what the Constitution means?
I find little ambiguity (the ambiguity is in the terms "speech" and
"press" mainly) there. I don't recall saying "no ambiguity". Yes, I
do doubt the Court's power to say what the Constitution means. Where
is this power enumerated in the Constitution?
>And when they lead to different results, who is to determine which
>principal to apply?
You mean if the textual interpretation and the intent interpretations
differ? It doesn't matter who is, at least as far as I'm concerned,
as long as it's spelt out, and as long as the people agree to it. It
could be a flip of a coin for all I care (only because I'm detached
here), but it has to be spelt out.
>And what do you call an analysis that argues that "no law" precludes
>a Copyright Act, despite the existence of one in the United States
>almost immediately upon passage of the Constitution? that "no law"
>precludes an action against libels?
I would call it an analysis based on conflicting language in the
Constitution.
>I inquire how you think this is relevant. My point is that no
>contradiction exists.
I still don't see it. A contradiction, regardless of intent, does
exist. Even if I agreed that this was not their intent (which I have
already agreed to way back in a post of mine), how can you deny, as
written, that a contradiction does not exist. The First Amendment IS
written in absolute terms. Why use them?
>I argue that whatever the Constitution meant, including the Bill of
>Rights, the authors meant it not to preclude an action against libels
>nor an action against copying.
Why? Because they passed copyright and libel laws? Maybe they were
ignorant of their own inconsistencies.
>You don't see the difference, discussed at length before, between
>a sentence of the form "2=2", which asserts an equation between two
>denotations, or ambiguously, asserts an equation between the referents
>of the two denotations, and "'2'=2," which asserts, proabably falsely
>depending upon the semantics of the expression langugage, an equation
>between the denotation and the referents.
I do see the difference between 2=2, and '2' = 2 (using your
notation). But what I said was that there's no difference between "no
law" and "no law at all" semantically. You asked why they didn't say
"no law at all", and my response was that it wouldn't have made a
difference. BUT, if they had indeed written "hardly any law", I think
it would've made a difference.
>He made the argument that "'no law' MEANS no law" in a particular
>context in a particular document. The latter is *NO* tautology, and
>requires a far deeper and more substantive analysis.
I disagree (to the "deeper and more substantive" part). Do you
disagree that 2 == two? Does that need deep and substantiate
analysis? The symbol "2" and the symbol "two" are semantically equal
(even though they're not syntatically so). Does no law mean zero law?
You've clearly demonstrated that it does not have to mean this
(assuming dictionaries in 1791 equated no to mean hardly any). But
what DOES it mean, and who gets to decide what it means? Even
realising no law could mean hardly any law, at what point is the line
crossed?
>He didn't mean that to assert that it was bad, and you know it.
Not to assert (which isn't what I said), but he did imply it. The
Constitution is radical, but not in the sense he meant it.
>The document is *NOT* irrelevant.
It's fast heading there, and please don't mistake my Constitutionalist
approach (which I'm sure is going to get me branded as a terrorist one
of these days :) as the reason for saying this. Even with a liberal
view, it's fairly obvious things are going downhill. The issue of why
the Constitution should even be relevant (from a philosophical
standpoint, not from a practical point) is indeed debatable. But
these people, who are ignoring it as they please, usually take a hold
to uphold it, in its static form.
>The relevance of the document is manifest by the numeber of state
>actions that have this year been declared unconstitutional.
Not at all. In fact, that's the default. The relevance of the
document is measured by how many laws ARE unconstitutional but still
get passed, and still get enforced, and are still uphold as
constitutional. Every single action that is unconstitutional that
does not get declared as such erodes the status of the document.
Every single action that is unconstitutional that gets declared as
unconstitutional simply keeps the status at where it was---it doesn't
enhance it. Myc omment is that is it's becoming more and more
irrelevant.
>Article III. You can't selectively decide what text to read
>literally.
Again, I don't see anything in Article III that the Supreme Court can
decide what degree of abridgement of the First Amendment is proper.
All I see is that for specific cases, the Supreme Court can decide
whether it abridges or not, and if it abridges, the law is
unconstitutional.
>Ram. the reason they didn't spell things out is manifest in the history
>of the Constitution and the Bill of Rights. Madison was a nut on the
>issue of not enumerating things. Indeed, he didn't want to have a bill
>of rights because of his fear that enumerating some rights would lead to
>the inference that no other rights are reserved to citizens.
Well, enumerate that too (which they did). I don't think this is a
valid excuse for not enumerating things.
>Even the presence of an amendment expressly stating this hasn't kept
>the court and certain scholars from refusing to recognize some rights
>on precisely that ground.
That shows the courts and "certain scholars" are illogical.
>and assert that people who have dedicated their lives to upholding
>the Constitution have perjured themselves.
Easily. Speaking generally, these people certainly don't show it
through their actions. There're a few, who once in a while do make
solid judgements, but even they make mistakes. Most do it
intentionally. (There's this nice analysis about society being
composed of three sorts of people---heroes, the backbone, and the
parasites---guess who falls where?)
>So far, it's still mere gainsay, denial of authorities cited by
>others to the contrary, and restatement of a simplistic argument from
>which you have already receded twice to avoid its contradictions.
Calling an argument simplistic does not make it so (which is all
you've done). Some of the best arguments are the most simple ones,
and I believe you're confusing the two. The issue is that any
reasonable LOGICAL interpretation of the First Amendment (including
the ambiguous terms, which could include "no" to mean "hardly any", I
grant) STILL says that several unconstitutional laws exist on the
books and Federal Copyright Law is one of them.
BTW, I prefer to think of Federal Copyright Law as being
/inconsistent/ with the First Amendment, not "violating" it.
--Ram
Tell me why I have to be a powerslave?
I don't want to die I'm a god why can't I live on?
When the life giver dies all around is laid waste.
And In my last hour I'm a slave to the power of death. ---Iron Maiden
Rahul Dhesi
>The issue is that any
>reasonable LOGICAL interpretation of the First Amendment (including
>the ambiguous terms, which could include "no" to mean "hardly any", I
>grant) STILL says that several unconstitutional laws exist on the
>books and Federal Copyright Law is one of them.
Even though I found Krusch's discussion enlightening, I don't think it's
impossible to logically interpret the constitution in question to allow
copyright law.
There are two ways of looking at the issue:
1. Define speech as original speech, or speech that is copied from,
somebody else's original speech with permission. Obviously, one would
have to also define 'original' to mean something like 'involving
nontrivial intellectual effort'.
2. Or simply take the point of view that obtaining a copyright creates
an implicit license between copyright owner and readers. Readers are
given permission to read/hear/see the speech under the condition that
they agree to respect the copyright owner's wishes regarding
duplication.
Any civilized system of government must allow for implied contracts.
Item 2 above simply adds one more set of conditions in which an implied
contract is created.
Ram Samudrala
Rahul Dhesi (dh...@rahul.net) wrote:
>1. Define speech as original speech, or speech that is copied from,
> somebody else's original speech with permission. Obviously, one would
> have to also define 'original' to mean something like 'involving
> nontrivial intellectual effort'.
I see no such restriction placed on the "speech" in the First
Amendment. But here, my view is generally that the First Amendment
must be construed as broadly as possible (in its ambiguous terms) to
the maximum protection. (At this point, I'll interject that I see no
reason why the Framers couldn't have been visionaries as well as
hypocrites.) This is an opinion, but I see no reason (again) why any
other opinion (the First Amendment must be construed as narrowly as
possible, for example) holds more weight.
The more I think about this, and the more I read about the history of
the BoR, the more I think that the Framers of the Constitution (at
least some of whom were opposed to the idea of a BoR, as I understand
it) did indeed agree to the BoR KNOWING it was inconsistent, but they
had to do so in order to ratify the Constitution. And the Courts,
etc., have basically choosen to reinterpret it or ignore it (and other
laws) as necessary instead of re-writing/amending it.
>2. Or simply take the point of view that obtaining a copyright creates
> an implicit license between copyright owner and readers. Readers are
> given permission to read/hear/see the speech under the condition that
> they agree to respect the copyright owner's wishes regarding
> duplication.
Unless I'm missing something here, Federal Laws that govern this
license are still unconstitutional, no?
--Ram
BKrusch
> Even though I found Krusch's discussion enlightening, I don't think it's
> impossible to logically interpret the constitution in question to allow
> copyright law.
You're right! States can pass copyright laws.
Rod McCarvel
In article <51fuak$7...@hecate.umd.edu>,
r...@mbisgi.umd.edu (Ram Samudrala) wrote:
>Andrew C. Greenberg (wer...@gate.net) wrote:
>
>>I inquire how you think this is relevant. My point is that no
>>contradiction exists.
>
>I still don't see it. A contradiction, regardless of intent, does
>exist. Even if I agreed that this was not their intent (which I have
>already agreed to way back in a post of mine), how can you deny, as
>written, that a contradiction does not exist. The First Amendment IS
>written in absolute terms. Why use them?
If I may pour some gasoline on this particular fire....
It may be too strong to suggest that the First Amendment "contradicts"
the Copyright Act and its support in Art. I, sec. 8, cl. 8, it is (at
least) disingenuous to suggest that there is no tension between them.
Consider the following language from *Cohen v. California*: "[W]e
cannot indulge the facile assumption that one can forbid particular
words without also running a substantial risk of suppressing ideas in
the process." 403 U.S. 15, 26 (1971). Consider also that the Copyright
Clause was one of the reasons that some supporters of the First
Amendment at the time of drafting cited to argue for its necessity:
"Tho it is not declared that Congress have a power to destroy the
liberty of the press; yet in effect, they will have it.... They have a
power to secure to authors the right of their writings. Under this,
they may license the press, no doubt; and under licensing the press,
they may suppress it." 2 _The Documentary History of the Ratification
of the Constitution, Ratification of the Constitution by the States,
Pennsylvania_ 454 (1976).
My point is not that a scheme of copyright is per se violative of the
First Amendment (although I think that a reasonably strong argument
can be made that the current Copyright Act comes perilously close);
rather, my point is simply that denying that some tension exists
between the two provisions does not make that tension disappear.
Happy trails,
Rod
"The law, in its majestic equality, forbids the rich as well as the
poor to sleep under bridges, to beg in the streets, and to steal
bread."
-Anatole France
Barry Krusch
Mr. Caldwell (jcal...@iquest.net) wrote:
: The first amendment to the federal constitution only stops the feds from
: infringing freedom of speech (14th amendment may apply this to state
: governments somewhat). A private citizen or other non-governmental entity can
: infringe freedom of speech within certain bounds, stealing property is not
: within these bounds. If CNN wants the film they pay the fee or do without.
Speech cannot be abridged via Federal statute.
Andrew C. Greenberg
In article <bk-160996...@ts3port7.port.net>, b...@interport.net
(BKrusch) wrote:
> In article <51g78c$l...@bug.rahul.net>, Rahul Dhesi <dh...@rahul.net> wrote:
>
> > Even though I found Krusch's discussion enlightening, I don't think it's
> > impossible to logically interpret the constitution in question to allow
> > copyright law.
>
> You're right! States can pass copyright laws.
Not true! What about a strict absolutist reading of the supremacy clause?
Albert Ramirez Jr.
BKrusch (b...@interport.net) wrote:
: In article <51ah1m$l...@senator-bedfellow.MIT.EDU>, se...@athena.mit.edu
: (Seth Finkelstein) wrote:
: > >Does "no" mean "no"?
: >
: > "no" what? The question is really what is an "abridgement" of
: > freedom of speech.
: OK, Seth, let's clarify this with a hypothetical from my book:
: Can Time-Life, which holds the copyright to the Zapruder film, prevent CNN
: from airing it in a documentary on the JFK assassination? If they can, and do,
: does this abridge CNN's freedom of speech?
: ====================================
: Barry Krusch:: http://www.krusch.com/real2.html
You present a fascinating and difficult question. No one can know the
answer to this question because it falls into a grey area of Copyright
law. Has the Zapruter film become such an important historical aftifact
as to limit the power of its copyright holder to enforce the copyright?
I have no idea.
--
Albert Ramirez, J.D. : Deep Space Nine: To boldly stay where
alb...@cybergate.com : no one has stayed before.
"Trucha con la lucha" :
Doug Sorensen
Barry Krusch <b...@netcom.com> wrote in article
> : > You're right! States can pass copyright laws.
>
> : Not true! What about a strict absolutist reading of the supremacy
clause?
>
>
> I'd like your view of the meaning of the word "no" in the First
> Amendment. Does it mean:
>
> 2) A number greater than 0
> 3) Either 1 or 2
> 4) Both 1 and 2
> 5) Both 3 and 4
>
>
Congress shall make no law ... abridging the freedom of speech, or of the
press ...
Taking one word out of context is the surest way to absurdity. The word
"no" means what it says. The words "abridging" and "speech" are where the
interpretation is. "Speech" is the expression of your ideas. That does not
give you the right to copy someone else's expression. Also, there are
things that people do (e.g. yell "fire" in a crowded theater) that express
no ideas. "Abridge" means depriving you of the ability to make that
expression. However, that does not preclude all regulation of how you do
it. Just because you wish to yell in the Oval Office does not mean the
government cannot stop you from doing it. If the government tried to
preclude all means of making that expression, then it would be abridging
freedom of speech. However, "abridging" has been interpreted broadly
because the government could make it very difficult to make the expression,
but claim they didn't preclude all means of making the expression.
Doug Sorensen
d-sor...@ti.com
Barry Krusch
23> <51dm31$b...@hecate.umd.edu> <werdna-1409...@192.0.2.23> <51fuak$7...@hecate.umd.edu> <51g78c$l...@bug.rahul.net> <bk-160996...@ts3port7.port.net> <werdna-1709...@192.0.2.23>
:Organization: NETCOM On-line Communication Services (408 261-4700 guest)
Distribution: inet
Rahul Dhesi
In <01bba4aa$a74170e0$0669...@RNA0179403.taiwan.ti.com> "Doug Sorensen"
<d-sor...@ti.com> writes:
>"Abridge" means depriving you of the ability to make that
>expression. However, that does not preclude all regulation of how you do
>it.
If they had meant 'deprive' or 'eliminate' they would have said so.
They said 'abridge'. It precludes all regulation.
Barry Krusch
Doug Sorensen (d-sor...@ti.com) wrote:
: Taking one word out of context is the surest way to absurdity. The word
: "no" means what it says. The words "abridging" and "speech" are where the
: interpretation is. "Speech" is the expression of your ideas.
So if I wish to pass along the words of Gandhi, that's not speech?
Interesting!
Andrew C. Greenberg
>
> : > You're right! States can pass copyright laws.
>
> : Not true! What about a strict absolutist reading of the supremacy
clause?
>
> I'd be happy to answer that for you, Andy, if you'll first answer this:
>
> I'd like your view of the meaning of the word "no" in the First
> Amendment. Does it mean:
>
> 1) 0
> 2) A number greater than 0
> 3) Either 1 or 2
> 4) Both 1 and 2
> 5) Both 3 and 4
>
> What do YOU think it means?
You've already asked that, and I answered. Besides a form of Japanese
theatre, "no" can mean "none", "hardly any" and other things as well. "No" can
mean nothing at all, as it does in this sentence. And "no" can mean more
than nothing at all, which I can prove in no time at all with the
counterexample in this sentence.
Having answered it, I await with interest your answer to my principal
question: please reconcile your assertion that New York can tomorrow pass
its own copyright law in light of Article I, Section 8, Section 301 of the
Copyright Act, and the Supremacy Clause. While you are at it, your
explanation of why you feel New York can tomorrow make it a crime for you
to publish your book, in light of the fourteenth Amendment?
Somehow, these strict constructionists always get fluffy and evasive when
asked to apply their hermeneutics to ALL of the Constitution.
Ram Samudrala
Doug Sorensen (d-sor...@ti.com) wrote:
>Taking one word out of context is the surest way to absurdity. The
>word "no" means what it says.
What does it say? (In the context of the First Amendment, of course.)
>"Speech" is the expression of your ideas.
I say speech is more than that. Who's right?
>"Abridge" means depriving you of the ability to make that
>expression.
Not only. It also means "diminish", or "curtail", or a host of other
things (as defined in a dictionary). /Dimishing/ your ability to make
an expression is abridgement.
--Ram
Remember, proteins don't have a folding problem; it's we humans that do.
Phaedrus
In article <51mvnb$i...@bug.rahul.net>, Rahul Dhesi <dh...@rahul.net> wrote:
>In <01bba4aa$a74170e0$0669...@RNA0179403.taiwan.ti.com> "Doug Sorensen"
><d-sor...@ti.com> writes:
>>it.
>If they had meant 'deprive' or 'eliminate' they would have said so.
>They said 'abridge'. It precludes all regulation.
Not only is this a questionable interpretation of the phrase, it's
pretty clearly not the one the authors had in mind. The authority behind the
copyright laws is explicitly written into the Consitution too; "The Congress
shall have the power[...] To promote the progress of science and useful
arts, by securing for limited times to authors and inventors the exclusive
right to their respective writings and discoveries". The Bill of Rights was
not an out-of-left-field addition to the Constitution; they were debated and
developed together. By your interpretation, the First Amendment flatly
contradicts the copyright clause above. Now, there's nothing wrong with that;
that's what amendments are about. But there is no other place in the Bill of
Rights where an amendment contradicts the text of the Constitution in this way
(unlike the later amendments), and I have yet to see any evidence that anyone
at the time saw the First Amendment as doing this. (After all, if they had
decided that the copyright clause was a Bad Thing, they could have simply
deleted it from the Constitution itself, rather than having to amend it away
later.)
So, either you have to say that the authors of the Constitution were
clueless twits for not realizing that they were contradicting themselves, or
you have to say that "abridging the freedom of speech" isn't quite as sweeping
as that.
--
\o\ If you're interested in books/stories with transformation themes, \o\
\o\ try <URL:http://www.halcyon.com/phaedrus/translist/translist.html>. \o\
/o/New entries for this list always appreciated. FC1.2:FC(w/c)p6arw A- C-/o/
/o/ D H+ M>+ P R T++++ W** Z+ Sm RLCT a cmn++++$ d e++ f+++ h- i++ p-- sm#/o/
Rahul Dhesi
>>If they had meant 'deprive' or 'eliminate' they would have said so.
>>They said 'abridge'. It precludes all regulation.
>By your interpretation, the First Amendment flatly
>contradicts the copyright clause above.
The terms "no" and "abridge" are very clear and do not require any
special attempt at interpretation.
The word "speech" is where interpretations must occur.
Doug Sorensen
Touché. You've pointed out an absurdity in my oversimplification. Namely,
how do you talk about someone else's ideas without using their words (or
whatever mode of expression they chose)? Using a current example, how do
you talk about the Co$'s ideas without quoting their copyrighted documents?
The competing policies here are the free flow of ideas versus letting
authors enjoy the fruits of their work. At some point, protecting the
author makes it very difficult, if not impossible, to discuss the author's
ideas. That would be abridging speech. The Fair Use Doctrine (17 U.S. Code
Sec. 107, http://www.law.cornell.edu/usc/17/107.html) is supposed to
balance these policies. However, as is usually the case when important
competing policies clash, the result is fuzzy and unsatisfying.
Barry Krusch <b...@netcom.com> wrote in article
<bakDxw...@netcom.com>...
> Doug Sorensen (d-sor...@ti.com) wrote:
> : Taking one word out of context is the surest way to absurdity. The word
BKrusch
In article <werdna-1709...@192.0.2.23>, wer...@gate.net (Andrew
C. Greenberg) wrote:
> I'd like your view of the meaning of the word "no" in the First
> Amendment. Does it mean:
>
> 1) 0
> 2) A number greater than 0
> 3) Either 1 or 2
> 4) Both 1 and 2
> 5) Both 3 and 4
>
> What do YOU think it means?
You've already asked that, and I answered. Besides a
form of Japanese theatre, "no" can mean "none", "hardly any"
and other things as well. "No" can mean nothing at all,
as it does in this sentence. And "no" can mean more
than nothing at all, which I can prove in no time at all
with the counterexample in this sentence.
Sorry, Andy, you didn't answer it. I didn't ask you what it CAN mean, I
asked you what it DOES mean, in the context of the First Amendment.
Having answered it, I await with interest your answer to
my principal question: please reconcile your assertion
that New York can tomorrow pass its own copyright law in
light of Article I, Section 8, Section 301 of the Copyright
Act, and the Supremacy Clause. While you are at it,
your explanation of why you feel New York can tomorrow make
it a crime for you to publish your book, in light of the
fourteenth Amendment?
Boy, I REALLY want to answer this. Please answer my question first as I
posed it.
Somehow, these strict constructionists always get fluffy
and evasive when asked to apply their hermeneutics to ALL
of the Constitution.
I'm presuming by "all" you mean "all" and not "some". Fluffy, perhaps. Not
evasive. Answer my question and you'll see.
Doug Sorensen
Ram Samudrala <r...@mbisgi.umd.edu> wrote in article
<51muue$c...@hecate.umd.edu>...
> Doug Sorensen (d-sor...@ti.com) wrote:
[snip]
> Not only. ["Abridge"] also means "diminish", or "curtail", or a host of
other
> things (as defined in a dictionary). /Dimishing/ your ability to make
> an expression is abridgement.
>
Are you saying I may libel or conspire to treason and the government
(Federal by the First Amendment, state by the First Amendment through the
Fourteenth) cannot curtail my speech?
Phaedrus
In article <51nops$o...@bug.rahul.net>, Rahul Dhesi <dh...@rahul.net> wrote:
>In <51nln3$i...@nwnews.wa.com> phae...@coho.halcyon.com (Phaedrus) writes:
>>>If they had meant 'deprive' or 'eliminate' they would have said so.
>>>They said 'abridge'. It precludes all regulation.
>>By your interpretation, the First Amendment flatly
>>contradicts the copyright clause above.
>The terms "no" and "abridge" are very clear and do not require any
>special attempt at interpretation.
>The word "speech" is where interpretations must occur.
Fine. I go and stand on a street corner, and read a copyrighted book
aloud, charging ten cents a minute for people to hear it. Under copyright
law, this is a public performance of a copyrighted work, and copyright
infrigement.
Which of the following would you say is true?
*The copyright law is unconstitutional, because it's abridging my freedom
of speech. (Again, if you take this position, you're going to have to explain
why the founders would include a clause in their Constitution and then turn
around and amend it away in a Bill of Rights drafted at the same time, and why
this is the only case in which they did this, and why they didn't seem to
believe that that's what they were doing.)
*What I'm doing is not "speech". (How can this be? I'm speaking, and
the definition of "speech" in this regard seems even more clear and
straightforward than the definition of "abridge".)
*Punishing me for doing this is not "abridging" my freedom of speech.
In any case, once you eliminate the first option (that the copyright law
is unconstitutional), then we're arriving at the same point, and just playing
word games with it. You can say that reading a copyrighted work is not
"speech"; I can say that preventing me from doing this is not an "abridgement".
But in either case, we've arrived at the same point: that there are instances
where punishing someone for saying a particular thing is not an abridgement
of freedom of speech. And once we've arrived at that point, then you can no
longer say that "this precludes any regulation", since we've already agreed
that that's not the case; the issue becomes picking the specific areas where
regulation is all right.
--
\o\ If you're interested in books/stories with transformation themes, \o\
/o/ try <URL:http://www.halcyon.com/phaedrus/translist/translist.html>. /o/
\o\New entries for this list always appreciated. FC1.21:FC(w/c)p6arw A- C- \o\
/o/D H+ M>+ P R T++++ W** Z+ Sm RLCT a cmn++++$ d e++ f+++ h- i++wf p-- sm#/o/
Ram Samudrala
Phaedrus (phae...@coho.halcyon.com) wrote:
>developed together. By your interpretation, the First Amendment flatly
>contradicts the copyright clause above.
Well, I think any reasonable interepretation of "abridge", assuming no
== zero, would lead to a contradiction. The word abridge isn't that
ambiguous (the word "no" happens to be more ambiguous since "hardly
any" can mean anything). I'm surprised THEY didn't choose to comment
on it---maybe they were visionary (and mischievous) enough to want
people like us to argue about it. Maybe they didn't mean "writings" to
include "speech" and vice versa.
--Ram
Waiting for the revolution. Nuclear vision, genocide.
Computerise god, it's the new religion.
Program the brain, not the heart beat. ---Black Sabbath
Ram Samudrala
Doug Sorensen (d-sor...@ti.com) wrote:
Not in that paragraph above. All I am doing there is disputing your
notion of of what "abridge" means.
If the word "no" in the First Amendment meant zero, and if your words
(that libel or conspire to treason) are speech, then Congress cannot
pass a law that would curtail your speech according to the First
Amendment. Because to curtail would be to abridge.
--Ram
Ram Samudrala
Phaedrus (phae...@chinook.halcyon.com) wrote:
> *The copyright law is unconstitutional, because it's abridging my
>freedom of speech. (Again, if you take this position, you're going to
>have to explain why the founders would include a clause in their
>Constitution and then turn around and amend it away in a Bill of
>Rights drafted at the same time, and why this is the only case in
>which they did this, and why they didn't seem to believe that that's
>what they were doing.)
I'd like that explained to me as well, since I do believe Federal
Copyright Law is inconsistent with the First Amendment. Unless, of
course, the word "no" does not mean "zero". This I'm willing to admit
more easily than I'm willing to admit that what you're doing is not
speech (it is, by any reasonable definition), and copyright law
doesn't abridge that freedom (it does, since it curtails or diminishes
your action above).
Note the clause in the Constitution says "writings", and the First
Amendment says "speeech". I'm not sure if it makes a difference.
As Andrew points out, one of the first things that Congress did
(probably even before the BoR) was pass a Copyright Act.
In fact, the most illuminating thing to me in this whole thread
(besides Barry's book) is realising that "no" could mean something
other than zero even with a fairly literal reading (I still question
why they said "no" as opposed to "hardly any", however). Clearly the
Supreme Court has taken this sort of position, wherein laws that do
abridge speech (and press) are passed in the name of compelling
government interests.
Did the First Copyright Act protect public performance in this manner?
Or did it apply only to printed manner? When was the notion of fair
use introduced? Also, what were the remedies for infringement?
--Ram
Unfortunately people are not rebelling against Microsoft.
They don't know any better. ---Steve Jobs
Doug Sorensen
Barry Krusch <b...@netcom.com> wrote in article
<bakDxM...@netcom.com>...
> 1270...@192.0.2.23> <512tt0$v...@hecate.umd.edu>
<werdna-1009...@192.0.2.23> <5158fq$j...@bug.rahul.net>
<01bba0b6$60ca8e00$0369...@RNA0179403.taiwan.ti.com>
>
> Doug Sorensen (d-sor...@ti.com) wrote:
> : The odd thing is, in this Alice in Wonderland world called American
legal
> : analysis, you are both right. In American a decision is law, even if
badly
> : decided, until overruled by the same or higher authority. So a Supreme
> : Court decision is the law.
>
> Really? How would you square that with Article 1, Section 1?
>
The Federal courts operate under the principle of Stare Decisis. This means
that a, when a decision interprets a statute or the Constitution, lower
courts and subsequent cases where a similar fact pattern is presented must
be decided the same way. Thus that interpretation becomes law. Of course,
the legislature can change the statute or the Constitution can be amended.
Then the courts will interpret the new statute and make new law.
Thus the law that the courts make is not really law, it's interpretation.
That's the fiction used to square the way the courts work with Article 1,
Section 1.