Actually, perse[1] didn't make much sense. Perse missed the point. The point is that whether some speech is prosecutable under US law is not a deciding factor of whether it should be protected under the principles of freedom of expression.
> The point is that whether some speech is prosecutable under US law is not a deciding factor of whether it should be protected under the principles of freedom of expression.
You're arguing that whether a particular form of speech is illegal or not should have no weight on deciding whether or not to protect that form of speech? Are you really arguing that laws don't matter here? So straight up, do you believe that the government is infringing on people's rights by banning child porn, yes or no?
> You're arguing that whether a particular form of speech is illegal or not should have no weight on deciding whether or not to protect that form of speech?
I don't know if they're arguing that, but I will argue that. Whether or not it is protected speech is a question you approach before you decide whether or not it is illegal.
For example, speech intended to cause someone to immediately assault you is not protected. It's not protected regardless of whether or not the government chooses to make it illegal, it can both not be protected speech, and still be legal. On the other hand arguing for a political position (with the goal of advancing the political position, not "arguing" a political position in an attempt to get someone to immediately punch you) is protected. It's protected regardless of whether or not congress passes a law forbidding it.
> So straight up, do you believe that the government is infringing on people's rights by banning child porn, yes or no?
This question misses the point, no, but I also wouldn't believe it was protected speech if the government had just not passed a law against it. Rather I would continue to believe that by virtue of it's lack of expressive nature and by virtue of how it harms people unable to consent that it is not protected speech.
What does protected speech mean and how does it differ from not being protected if it is different from laws making certain things illegal? And how is legal/illegal relevant to arguing in relation to protected/unprotected since it seems your arguments steers towards that being a philosophical definition.
Protected speech is the set of things you can do and say that are covered under freedom of speech from a philosophical standpoint. It is the set of things protected by 1a legally in the us (roughly, 1a also includes some non-speech rights). It is the set of things that you should not forbid as a legislature, and the set of things that courts will not enforce laws against even if you try to forbid them anyways.
All those are slightly different definitions, but I wasn't being precise enough in my previous comment that the differences are important.
Then I think the issue is simple. Any speech made illegal by law isn't protected unless the supreme court rules that case to be different, IIRC you americans have precedence rules for that sort of stuff.
Protected speech is any legal speech that additionally enjoys protection from the constitution, while unprotected speech would be legal speech that is not otherwise protected. And then you have illegal stuff that is outlawed.
Courts to my knowledge, even in american, don't consider the constitution at the lower levels, just local legislation, ie any legal speech is equivalent regardless of protected status.
Specific protection status would be regulated by precedent in higher courts which do have the capacity to interprete the constitution.
Courts at every level consider the constitution. Lower level courts routinely rule on constitutional grounds.
The legislature routinely passes unconstitutional laws that purport to punish constitutionally protected speech, and those laws are routinely not enforced against that speech. (Often these laws have other constitutionally valid purposes and are still enforced for those purposes, more rarely their main purpose is to forbid protected speech and they are thrown out entirely).
It is simply not the case in the us that the legislature passing a law against speech means that the speech is unprotected and illegal.
The police would very much enforce them, they aren't in charge of what is constitutional or not, unless your police is incompetent.
What you'd rather want to say is "they are thrown out in court".
>It is simply not the case in the us that the legislature passing a law against speech means that the speech is unprotected and illegal.
Until a court considers otherwise, it very much is. A law is valid until a court overthrows it. Hence it requires proper police (the executive) to enforce it. Otherwise the state will just not function.
> Conversely, if laws have no meaning, what makes them think that the concept of free speech is protected by law? It's turtles all the way down.
Nothing. There are some aspects where US law is pretty well aligned with the principles of freedom of speech, and others where it isn't aligned at all. For example: A significant percentage of speech is carried out on social media, where US law does not require free speech to be enforced - but, according to the principles of freedom of expression, free speech is very valuable.
Generally speaking the US Constitution restricts the actions of government, and not anybody else. E.g. you can preach with a megaphone whatever you want on the sidewalk; you can't do it in my living room without my consent.
Also people tend to forget that freedom of speech is not freedom from consequences; limiting consequences of speech, even if it were desirable, can start restricting others' freedom of expression and association. If Bob gets on a stump and starts spewing controversial hate speech his employer is perfectly free to not want to associate with that behavior and fire him.
>So straight up, do you believe that the government is infringing on people's rights by banning child porn, yes or no?
According to U.S. law some kinds of child pornography are legal. Do you believe, therefore, that it is against the principles of freedom of speech that the NZ government has banned them. Yes or no?
> According to U.S. law some kinds of child pornography are legal.
Do you have any evidence of this? I'm not aware that this is true at all and I don't believe it to be the case.
> Do you believe, therefore, that it is against the principles of freedom of speech that the NZ government has banned them. Yes or no?
No, I believe that freedom of speech comes with limitations and preventing distribution of child porn is a perfectly good limitation to put in place on freedom of speech.
Paintings, sketches, cartoons, etc. of children and of a pornographic nature are legal at the federal level so long as they have artistic, cultural, or [something I've forgotten] merit. Or so I believe - not a lawyer.
Anyway, to make the point in a more straightforward way:
What ought and oughtn't be allowed expression according to the principles of freedom of speech is not a clear-cut thing. There are many different views on it, and to dismiss all those with views different from those who wrote US law is silly.
A. The kinds of expression protected under U.S. law
B. The kinds of expression which should be protected according to the principles of freedom of speech
The point is that, because A and B are separate things, the fact that impersonating an FBI officer is not protected under US law[1] does not entail that impersonating an FBI officer should not be protected according to the principles of freedom of speech.
[1]which may or may not be the case, I'm not a lawyer nor an American
So what exactly are the "principles of freedom of speech" you describe here, and how do they take precedence over the law? Is it just your interpretation of the concept of freedom of speech? It's one thing to argue that a particular law isn't kosher, but you're differentiating on this nebulous term that in no way supersedes the actual law here.
> So straight up, do you believe that the government is infringing on people's rights by banning child porn, yes or no?
As I recall it, people can and have been prosecuted for drawing and owning cartoons of child porn. That is a victimless crime - so yes it probably has gotten to the point where the government is infringing rights unreasonably. The government can walk in and created a loser in a situation where nobody was unhappy. It is the production of the porn that worries me rather than the possession. I'd be ok with the whole situation if everyone was sticking to one cache of obscene material produced 50 years ago and nobody new was being harmed.
But more to the topic at hand, CP isn't a free speech issue. The crime is, by and large, possession of child porn and so the issue is one of privacy rather than speech. They may as well legalise distribution, if anyone were stupid enough to do it publicly it would make it easy for the police to find everyone involved and prosecute them.
Yeah I don't think any reasonable person believes this is the absolute inviolable sacrosanct ideal, nor is this actually a legal standard anywhere.
Spouting falsehoods under a false pretense as an authority shouldn't be protected. Otherwise what's stopping society from drowning in a he-said she-said of conspiracy noise?
That means blackmail, threats of violence, divulging state secrects, forging documents, fake passports, and terrorist propaganda should all be allowed.
[1]https://stallman.org/articles/genderless-pronouns.html