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  #21  
Old 12-17-2005, 01:11 PM
elwoodblues elwoodblues is offline
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Default Re: Senate rejects Patriot Act

Are you speaking of when you made the novel legal argument that defamation and fraud were not laws??

Under your "laws" vs "suits" argument (note that "suits" is a shortened version of "lawsuits", but I digress) would it be constitutional to allow suits where you could recover damages if anyone stated an opinion with which you disagree? Why not? It's just a "suit" not a "law."
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  #22  
Old 12-17-2005, 01:18 PM
MMMMMM MMMMMM is offline
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Default Re: Senate rejects Patriot Act

[ QUOTE ]
Are you speaking of when you made the novel legal argument that defamation and fraud were not laws??

Under your "laws" vs "suits" argument (note that "suits" is a shortened version of "lawsuits", but I digress) would it be constitutional to allow suits where you could recover damages if anyone stated an opinion with which you disagree? Why not? It's just a "suit" not a "law."

[/ QUOTE ]

If the suit had merit (though it sounds like it wouldn't) it might manage to go forward. Probably the judge would just throw it out as frivolous, no?

Other than that, I don't see the relevance of your question.

Civil lawsuits seeking compensation for at-fault and unjust damages are different than making it a criminal or punishable offense to say something.

And Elliot's argument was not just "novel"--it was plain wrong, too--right, Elwood?
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  #23  
Old 12-17-2005, 01:39 PM
elwoodblues elwoodblues is offline
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Default Re: Senate rejects Patriot Act

[ QUOTE ]
Civil lawsuits seeking compensation for at-fault and unjust damages are different than making it a criminal or punishable offense to say something.

[/ QUOTE ]

Correct. That doesn't change whether there are constitutional implications. The first amendment doesn't say congress shall make no law criminalizing speech. If McCain Feingold only allowed civil (not criminal) remedies, would it be allowable under the Constitution in your opinion (note that I don't know whether McCain Feingold even has criminal penalties)?

There are constitutional implications for FCC actions even though they involve civil, not criminal penalties. Your distinction between "laws" and "suits" was just plain ridiculous.

[ QUOTE ]
And Elliot's argument was not just "novel"--it was plain wrong, too--right, Elwood?

[/ QUOTE ]

I don't know about that. His argument seems to be that we limit speech all the time (defamation and fraud were two examples) --- the mere fact that speech is limited is, apparently, not what causes something to violate the Constitution. Elliot seemed to be question what, then, causes a constitutional violation. Your response seemed to suggest that you think the differentiating factor was one of "laws" and "suits" (which I am assuming means the difference between civil and criminal.) There are countless examples of where civil laws are violative of the first amendment, so I don't think that's the distinction either...
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  #24  
Old 12-17-2005, 01:51 PM
MMMMMM MMMMMM is offline
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Default Re: Senate rejects Patriot Act

[ QUOTE ]

Civil lawsuits seeking compensation for at-fault and unjust damages are different than making it a criminal or punishable offense to say something.

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Correct. That doesn't change whether there are constitutional implications. The first amendment doesn't say congress shall make no law criminalizing speech. If McCain Feingold only allowed civil (not criminal) remedies, would it be allowable under the Constitution in your opinion (note that I don't know whether McCain Feingold even has criminal penalties)?

[/ QUOTE ]

Civil suits being different than criminal laws, and also being different than government imposed fines.

[ QUOTE ]
There are constitutional implications for FCC actions even though they involve civil, not criminal penalties. Your distinction between "laws" and "suits" was just plain ridiculous.
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Quote:
And Elliot's argument was not just "novel"--it was plain wrong, too--right, Elwood?

-------------------------------------------------------

I don't know about that. His argument seems to be that we limit speech all the time (defamation and fraud were two examples) --- the mere fact that speech is limited is, apparently, not what causes something to violate the Constitution. Elliot seemed to be question what, then, causes a constitutional violation. Your response seemed to suggest that you think the differentiating factor was one of "laws" and "suits" (which I am assuming means the difference between civil and criminal.) There are countless examples of where civil laws are violative of the first amendment, so I don't think that's the distinction either...

[/ QUOTE ]

Sometimes you can overcomplicate things, you know. The simplest meaning (in this matter and most others) is generally the best.
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  #25  
Old 12-17-2005, 02:01 PM
elwoodblues elwoodblues is offline
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Default Re: Senate rejects Patriot Act

[ QUOTE ]
Civil suits being different than criminal laws, and also being different than government imposed fines.

[/ QUOTE ]

Even private rights of action have Constitutional implications (not just government imposed fines.) Say Congress gives (or a judge creates through his/her common law powers) a private right of action that allows you to sue for hurtful (though true) speech. Are you suggesting that there aren't constitutional implications?

[ QUOTE ]
The simplest meaning (in this matter and most others) is generally the best.

[/ QUOTE ]

So, Mr Ocham, what is the simplest meaning of the phrase "Congress shall make no law abridging freedom of speech" and how would that simple meaning incorporate financial contributions into the meaning of "speech." How would the simple word "no" be defined so that laws against defamation and fraud, the fcc, and countless other examples could exist.

Sometimes, if you try to oversimplify you just sound like a simpleton.
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  #26  
Old 12-17-2005, 02:54 PM
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Default Re: Senate rejects Patriot Act

[ QUOTE ]
I don't know about that. His argument seems to be that we limit speech all the time (defamation and fraud were two examples) --- the mere fact that speech is limited is, apparently, not what causes something to violate the Constitution. Elliot seemed to be question what, then, causes a constitutional violation. Your response seemed to suggest that you think the differentiating factor was one of "laws" and "suits" (which I am assuming means the difference between civil and criminal.) There are countless examples of where civil laws are violative of the first amendment, so I don't think that's the distinction either...

[/ QUOTE ]

Elwood 1 MMMMMM 0

Elwood is entirely correct. The point of my post is that the argument that M-F is unconstitutional simply because it "abridges" speech is bogus. Although the First Amendment says "Congress shall make no law . . . " it simply has not been and will never be interpreted literally. Thus, if you want to argue the constitutionality of M-F, MMMMMM, you must do more than quote the amendment if you wish to be taken seriously. You need to explain why this particular abridgment is unconstitutional based on First Amendment law as it has evolved over the centuries. BCPVP made an effort in this direction by bringing up "political" speech.

As an aside, MMMMMM's distinction between a criminal penalty and legal enforcement of private rights is totally wrong in this context. Private defamation suits are indeed abridgments of the freedom of speech. See NY Times v. Sullivan.
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  #27  
Old 12-17-2005, 04:08 PM
MMMMMM MMMMMM is offline
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Default Re: Senate rejects Patriot Act

[ QUOTE ]
Even private rights of action have Constitutional implications (not just government imposed fines.) Say Congress gives (or a judge creates through his/her common law powers) a private right of action that allows you to sue for hurtful (though true) speech. Are you suggesting that there aren't constitutional implications?


[/ QUOTE ]

I don't know and with that hypothetical I think we're getting pretty far afield. Nor do I see that hypothetrical as a likely real-world possibility.

[ QUOTE ]
So, Mr Ocham, what is the simplest meaning of the phrase "Congress shall make no law abridging freedom of speech" and how would that simple meaning incorporate financial contributions into the meaning of "speech."

[/ QUOTE ]

Nothing to do with contributions; the part of McCain-Feingold which abridges the freedom of speech is the prohibition against running ads in the electronic media.

[ QUOTE ]
How would the simple word "no" be defined so that laws against defamation and fraud, the fcc, and countless other examples could exist.


[/ QUOTE ]

Defamation is not prohibited by law, but civil defamation suits can be brought and wrongful injuries may be compensated. Fraud is criminal, and is not specific to speech or expression at all; there are many types of fraud. The FCC should not have the power of censorship.


You have the Constitutional right to free speech. That does not mean that free speech is always without consequences, such as the potential consequence of being sued in civil court for damages. If you don't see a difference between that, and a law which imposes government penalties for exercising your right to free speech, I fear we may be at an impasse. Defamation suits are civil; the other is involves a governmentally imposed fine or punsihment.

The correct way to address the issue of negative ads is with civil suits for libel or slander if the ads contain false and defamatory information. Government has no proper role in saying you can or cannot run such ads:

TEXT OF THE FIRST AMENDMENT

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It is not a punishable offense to falsely proclaim your neighbor is a criminal and a wife-beater, nor is it against the law. You may have to face him in court in a civil suit if you do so, but that is a far cry from the government fining or imprisoning you for making such statements.
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  #28  
Old 12-17-2005, 04:23 PM
DVaut1 DVaut1 is offline
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Default Re: Senate rejects Patriot Act

[ QUOTE ]
Sometimes, if you try to oversimplify you just sound like a simpleton.

[/ QUOTE ]

Elwood 2, MMMMMM 0
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