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"1st Amendment Issue" vs "Absolutely Protected By the 1st Amendment"
Topic Started: Apr 29 2018, 05:27 PM (142 Views)
George K
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Finally
Interesting analysis at Popehat:

https://www.popehat.com/2018/04/25/a-first-amendment-issue-vs-absolutely-protected-by-the-first-amendment-a-common-free-speech-misunderstanding/
Quote:
 
In the last few years I've noticed a fundamental misunderstanding in how we talk about First Amendment law, particularly when wonks like me talk to normal people. The misunderstanding involves what it means for something to be a "First Amendment issue" or "governed by the First Amendment" or even "protected by the First Amendment."

Take, as the latest example, deeply silly and annoying Fresno State loudmouth Randa Jarrar. It's unequivocally clear: whether or not Fresno State can fire her is governed by the First Amendment. Put another way, it's a First Amendment issue, or her speech is protected by the First Amendment. You may not like it or agree, but that's the law.

But perhaps when I say those things, I'm not being clear about what I mean. People seem to take it as if I am saying "Randa Jarrar's speech is absolutely protected by the First Amendment and she can't be disciplined, case closed." But I'm not. I'm saying that the First Amendment is the source of the legal standard that governs whether she can be fired — that the Supreme Court has articulated a specific multi-step analysis to determine whether a state employer can fire a state employee for speech. If I mean to say "I've done the requisite First Amendment analysis and it's clear that under that process the end result is that her speech is absolutely protected," then I should say so clearly. Maybe I don't always.

Defamation cases are another good example. Nearly every time I say that the First Amendment applies to evaluating a defamation claim, people say "but defamation isn't protected by the First Amendment." This again confuses process and results. What I'm saying — and maybe I should say more clearly — is that established First Amendment caselaw shows us how to tell whether or not a statement is potentially defamatory (not protected by the First Amendment) or absolutely protected like pure opinion.

First Amendment wonks like me could make public dialogue more productive by being clear about this distinction, I suppose. The best analogy I can give is this. When I say "whether this person can be punished by this speech is a First Amendment issue/governed by the First Amendment," it's like I'm saying "whether this defendant is guilty is a question for the jury." I'm not saying the person will necessarily be found not guilty. I'm saying there's an established constitutional process. This isn't Nam, there are rules.

So: I'll try to be clearer when I'm saying "the end result is that the First Amendment protects this speech so it can't be punished" versus "the First Amendment provides the rules to determine whether this speech can be punished."

As you were.

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Mikhailoh
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If you want trouble, find yourself a redhead
Semi-clarity. I'd be more interested if he would examine what those processes and criteria are. The devil, after all, is always in the details.
Once in his life, every man is entitled to fall madly in love with a gorgeous redhead - Lucille Ball
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jon-nyc
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Cheers
Good distinction.
In my defense, I was left unsupervised.
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taiwan_girl
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Fulla-Carp
Maybe I should not bring this up here, as we have debated this before (LOL), but could not the same things be say about the gun laws (#2 amendment).

With the first amendment, you can have free speech, but people seem to agree that there are limits and that free speech is no "'absolute".

With the #2 amendment, it seems (and I may be wrong) that one side says that there can not be any limits (or almost no limits) on the amendment.

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George K
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Finally
taiwan_girl
Apr 30 2018, 05:07 PM
With the #2 amendment, it seems (and I may be wrong) that one side says that there can not be any limits (or almost no limits) on the amendment.

I think all reasonable people agree that there should be limits on the 2nd amendment - hand grenades, tanks, bazookas, fully automatic weapons are all illegal for private ownership (for the most part).
A guide to GKSR: Click

"Now look here, you Baltic gas passer... "
- Mik, 6/14/08


Nothing is as effective as homeopathy.

I'd rather listen to an hour of Abba than an hour of The Beatles.
- Klaus, 4/29/18
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taiwan_girl
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Fulla-Carp
George K
Apr 30 2018, 05:31 PM
taiwan_girl
Apr 30 2018, 05:07 PM
With the #2 amendment, it seems (and I may be wrong) that one side says that there can not be any limits (or almost no limits) on the amendment.

I think all reasonable people agree that there should be limits on the 2nd amendment - hand grenades, tanks, bazookas, fully automatic weapons are all illegal for private ownership (for the most part).
That is a good point George K. I always think that the 2 amendment is only about guns, but I guess it is about all weapons.
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Copper
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Shortstop

Yes, there are a lot of limits on the 2nd amendment freedoms.

The NRA agrees with this.
The Confederate soldier was peculiar in that he was ever ready to fight, but never ready to submit to the routine duty and discipline of the camp or the march. The soldiers were determined to be soldiers after their own notions, and do their duty, for the love of it, as they thought best. Carlton McCarthy
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Jolly
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Geaux Tigers!
taiwan_girl
Apr 30 2018, 05:46 PM
George K
Apr 30 2018, 05:31 PM
taiwan_girl
Apr 30 2018, 05:07 PM
With the #2 amendment, it seems (and I may be wrong) that one side says that there can not be any limits (or almost no limits) on the amendment.

I think all reasonable people agree that there should be limits on the 2nd amendment - hand grenades, tanks, bazookas, fully automatic weapons are all illegal for private ownership (for the most part).
That is a good point George K. I always think that the 2 amendment is only about guns, but I guess it is about all weapons.
What is most highly regulated, is what the Feds refer to as "destructive devices", or Class 3.

Want a tank? One with a working main gun? Because of the current ban on importation of Class 3 weapons for sale to the general public, it's a bit hard to do, but not impossible.

We just need to find one in-country, before the ban. It needs to have available ammunition. It will cost $200 over the price of the tank for the Class 3 stamp for the main gun. Any working machine guns will also generate an additional $200 each...Ammo is fine, as as it's 50 Cal or smaller. Each main gun round will cost the price of the shell, plus a $200 tax stamp per shell.

So, for the cost of the tank plus ammo, an additional $1200 will let you fire off 5 rounds of HE, AP or HEAT.
The main obstacle to a stable and just world order is the United States.- George Soros
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