SCOTUS: Westboro protected

[Molyneux]

My point is that if speech is restricted based on area in some cases, that weakens the barriers against restricting it based on other areas.

That is a non sequitur. By the same token, libel laws weaken the barriers against restricting free speech.

It's not a non sequitur at all. Overly-broad libel laws do just that; for a good example, look at Great Britain and the use of libel laws to attempt to stifle criticism in that country.

...and as unwritten rules, I tend to doubt that they can have legal force in any rational government.

So the German Government is irrational now?

If they give undefined rules legal weight, or if you can be assessed fines or jail time for violating a rule not written into law, then then yes, yes they are.

I despise the division of the populace into "public" or "private" people. It's ludicrous to claim that someone is immune to public mockery because they're not a celebrity - or to claim that celebrities give up their right to privacy.

Wooooh. Two strawmen in one sentence. Congrats on that one.

Let me quote your previous post:

If I were to march down in Berlin saying "He [the former prime minister] is a liar"...then nothing would stop me, because he is a political person...

If however Jack Nobody would die and I would do the same, I would face charges because...said person is not a public person.

Let me know if what I leave out of those quotes seems relevant to the point; it looks to me like you claimed that it could be legal to say something about a public person, but illegal to say the same thing about a private person. True?

I used hyperbole, but as far as I can tell, I didn't cross over into outright strawman. I stand by my argument; whether someone is "public" or not should have no fucking bearing on what I can or cannot say about them from a legal standpoint. I know that that is not the state of law in many places, but I'm arguing that those laws are wrong.

The content of a political message shouldn't have any bearing, unless that content is itself criminal (say, calls to burn down Muslim-owned businesses).

Content matters, as well as the tone. For example, I might say that you are a "shit eating fuckhead who cannot formulate a thought process if your life depended on it" or I might say "this reasoning is illogical". Do you see the difference? (And no, neither is illegal).

So you argue that the content of a political message should be able to affect whether that message is legal or not to publicly hold...and as an example, you give two messages that you yourself say would both be legal.

Thank you, Mr. Vague. My point - and I don't think that this is too hard to glean, here - is that using a term like "inciting hatred" is dangerous because it has no fucking well-defined meaning. It's a buzzword for "I don't like that".

Sure it has a well defined meaning. You just do not like that it cannot be applied as a simplistic formula in every case. Which roughly translates to "WAAAAH. I MIGHT BE FORCED TO THINK BEFORE I ACT." I am also sure libel laws in the USA do not have such a simplistic formula as you think they have.

On the contrary, libel law in the US is often complex...but as a basic rule, the burden of proof falls very heavily on the plaintiff. Unlike the case in, say, quite a few European countries. As a result, it's quite difficult to use a defamation suit as a gag in the United States.

Going from the (admittedly unreliable) entry for hate speech on Wikipedia, it looks like simply insulting certain groups can be legally prohibited - and yes, I do think that that disqualifies Germany from a legitimate claim to free speech. Please correct me if I'm mistaken there, but it looks like I could get into trouble in Germany for, as an example, calling the Catholic Church a festering hive of filth, staffed by pedophiles and those who willingly cover for them.

If you're honestly saying that I can be legally obligated to respect someone, I may just fall over laughing.

Yes, you are legally obligated to respect your fellow human beings. You do so every morning when you do not start the day by shooting your neighbours for looking at you funny.

That is a very strange definition of respect you have there. You're the one who brought up acts of physical violence; I'm talking about the right to call someone a jackass without fear of legal repercussion.

The right to mock assholes is well-established by thousands of years of literature; the right to insult equally so. If I can tell someone he's going to go to Hell when he dies to his face, how the hell can you justify restricting my saying so when he's dead?

As I said, it depends on context. Is that so hard for you to get?

Just saying "it depends on context" doesn't answer a goddamn thing. Give me a concrete example of a situation where I could reasonably be restricted from saying someone is in Hell after their death, when there was no such restriction on me telling him to his face that he was going to burn in Hell.

Wow - i guess we better get off that slope before we slip then. Everyone should be able to say anything to anyone at any time without any consequences whatsoever! Libel? Legal! Cheating? Legal! Fraud? Legal! Yay, FREEDOM

Yes, because slippery slopes never occur, and we've never seen libel or obscenity laws used to restrict legitimate speech anywhere on the globe! That certainly was a silly thing for me to say, wasn't it? I mean, it's not as if anyone has ever tried to use the "free speech zone" concept to quell protests. Such a sharp one you are.

Oh, hey, Germany has a blasphemy law on the books. Of course, it dates back to 1871 - it's got to be a blue law, no chance that anyone in modern times would really try to use it, right?

Oh, yeah, wait, there was that time in 1994 when it was used to ban a musical comedy that someone didn't like.

Germany has an anti-blasphemy law dating from 1871, but it has been little used in recent decades.

It was, however, successfully used in 1994 to ban a musical comedy that ridiculed the Catholic doctrine of the immaculate conception by portraying crucified pigs.

Emphasis is mine.
So, Thanas, Serafina: Germany has a blasphemy law on the books, and it has been used in modern times to suppress freedom of expression. It remains, as far as I can tell, part of the body of law in Germany.

I feel quite justified in stating that no, Germany does not have freedom of speech. No fucking country with active blasphemy laws has freedom of speech worth a damn.


Before I hit the "submit" button, here's another little tidbit:

Germany is to put on trial this week a man who printed the word "Koran" on toilet paper and sent this to a mosque, provoking outrage in Islamic countries.

The 61-year-old businessman had been indicted for insulting a religion.

...

Under a part of the German legal code last revised in 1969, a person can be sentenced to a fine or up to three years in jail for "insulting confessions, religious communities or groups promoting a special world view."

Sure is a bastion of free expression over there.

[Serafina]

Oh, hey, Germany has a blasphemy law on the books. Of course, it dates back to 1871 - it's got to be a blue law, no chance that anyone in modern times would really try to use it, right?

Oh, sure. Of course you conveniently left out that this law is not only repedeately being critised, but you left out the most vital part:
Blasphemy is only punishable if it disturbs the public peace. Which also applies if it is not about a religious subject.
The only convictions based on this law where in cases where the act of speech was designed to just upset and contained no actual point beyond that. Since the law was last reformed (1969), only three people wer convicted under that law.

You have failed to show how constructive free speech is in any way prohibited in Germany. It is completely legal to call out the catholic church on their actual crimes, and to do so while using harsh words. But there is a limit to the manner in which you can do so. I fail to see the harm imposed by that limit.


You are, again, using a slippery slope fallacy. You are even defending it!

Yes, because slippery slopes never occur, and we've never seen libel or obscenity laws used to restrict legitimate speech anywhere on the globe! That certainly was a silly thing for me to say, wasn't it? I mean, it's not as if anyone has ever tried to use the "free speech zone" concept to quell protests. Such a sharp one you are.

Go on then. Show how that is actually occuring. Show how this concept is used to oppress free speech in a harmful manner


Okay, just to explain my point again:
It is completely legal in Germany to critizise anyone, as long as it is done in a civil and appropriate manner. It is completely legal to have a protest march which declares that the catholic church is harboring child molesters. It would be completely legal to publically declare that Guttenberg is a cheat and a fraud and should be imprisoned.
It is not legal to incite public unrest. For example, writing "the holy koran" on toilet paper and sending it to mosques has been deemed illegal under this law. However, it would likewise be illegal to do what the Westboro "church" is doing.
You have yet to show how constructive free speech is in any way prohibited in Germany. I fail to see how limiting free speech so that it will not incite public unrest is destroying free speech.

[Block]

Who gets to determine what incites public unrest? Who determines what public unrest is? That's what makes the type of "free speech" you're describing, not real freedom of speech. What Westboro does is vile and their goal is to incite violence so that they can sue by causing people to react against them, however it should be protected, because they're not actually calling for violence against a living person. They're not directly causing harm through their words, not physical harm anyways, and trying to litigate psychological damage becomes nothing but a slippery slope, because the standards simply can't be the same for any two people.

Your argument doesn't work Serafina, because constructive is subjective, and if speech is limited to someone's idea of constructive, it's not free.

[Duckie]

Germany is clearly more mature of a country, given that they actually trust their government and legal system to interpret the law like they're supposed to.

What's libel and what isn't and what the proper punishment is, those are judge's opinons, yet you probably don't object to libel laws being partially at the judgment of a judge within guidelines.

What's murder one vs murder two is judgment by the jury, with no exact guidelines that tell you in black and white what is or isn't- it requires interpretation of the intent behind the law and the motives and actions of the person, which vary with situation and are far too detailed and unique to put into a flowchart when making a law.

To satisfy your 'nobody should influence it with judgment because then corruption could happen', either there must be no laws or laws must have forseen all cases in exacting detail (with no case for things falling between categories) and there can be no flexibility in punishment based on situation.

If it's good enough for death penalty murder cases, why not for free speech?

[Serafina]

Who gets to determine what incites public unrest? Who determines what public unrest is? That's what makes the type of "free speech" you're describing, not real freedom of speech. What Westboro does is vile and their goal is to incite violence so that they can sue by causing people to react against them, however it should be protected, because they're not actually calling for violence against a living person. They're not directly causing harm through their words, not physical harm anyways, and trying to litigate psychological damage becomes nothing but a slippery slope, because the standards simply can't be the same for any two people.

Your argument doesn't work Serafina, because constructive is subjective, and if speech is limited to someone's idea of constructive, it's not free.

As Duckie just said, the judge residing over that case determines those things. This is just a necessity in every aspect of law, you can not write every possible circumstance into law. That is why we have judges, who interpretate the law - this is the case in every civilized nation, including the USA.

As i said, this "blasphemy law" (§166 StGB) is pretty much the same as the law against "Volksverhetzung" (§130 StBG). You can be punished if you conduct yourself "in a manner that is capable of disturbing the public peace" (read: you must do so in public in a way that reaches many people) which
-incites hatred against segments of the population or calls for violent or arbitrary measures against them
-assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population

§166 StBG is pretty much just a copy of the second part of §130 StGB. It does not grant religious groups any special protection, at least since it's last reform in 1969.


In german legal theory, it is not allowed to prohibit an oppinion, or the expression of an oppinon. Only a manner in which an oppinion is epxressed can be prohibited, if that manner is capable of disturbing the public peace. It does NOT prohibit the spreading of such ideas in a manner that are not capable of disturbing the public peace.
You would be allowed to call for the extermination of all christians (or jews, or any group of people) in a non-public meeting, but not in a public place (of course, if you do so regularly you might get into other legal trouble, get suspected of planning such acts etc.).
In NO WAY do these laws prohibit civil discussion or expression of oppinion. The catholic church was heavily and publically critizised after the recent scandals, and so are a huge number of public persons and other groups.


I see nothing wrong with trying to keep public speech civil and non-violent. Acts like those of the Westboro church have no value and do not add to any political process - therefore they do not deserve special protection under the law. This is the same principle that applies to hate speech or libel laws.

[Thanas]

Jesus whale-humping Christ.

It does not require a legal genius on the level of Savigny to determine that maybe, maybe people picketing funerals, yelling obscenities at grieving people and being general jerks just for the sake of being jerks has little to do with free speech and more with being jerks. Especially when the majority of the income of these guys comes from ticking people off and then suing them for everything once they are sufficiently provoked.

That is inciting hatred. Especially when it is directed against a special group of people who are only labelled via obscenities. Now, unless you reach that level of assholery, nothing is going to happen to you.

I'd also like you to take a good look at the debate cultures of our respective countries. We for one do not have shills like Palin using code-speak to call for violence against elected officials and we do not have the standard of discourse being that the "other" is the "mortal enemy" who must be "wiped out". FFS, you make it sound as if these laws are regularly applied to the ordinary citizen.

Oh, and you have yet to come up with a political opinion that is prohibited in Germany. To my knowledge, the only one that is prohibited is to deny the holocaust. Everything else is completely legal. It is the way you go about it that makes the difference. I'll also note that the Constitutional court has a long history of favoring freedom of expression.