Stuff You Should Know - How Free Speech Works

Episode Date: February 28, 2017

Freedom of speech and the press are values vital to American democracy. But the First Amendment doesn't really define free speech, and plenty of expressions are restricted. Learn all about the ins and outs of this cherished right in today's episode. Learn more about your ad-choices at https://www.iheartpodcastnetwork.comSee omnystudio.com/listener for privacy information.

Hey everybody, when you're staying at an Airbnb, you might be like me wondering, could my place be an Airbnb? And if it could, what could it earn? So I was pretty surprised to hear about Lauren in Nova Scotia who realized she could Airbnb her cozy backyard treehouse and the extra income helps cover her bills and pays for her travel. So yeah, you might not realize it, but you might have an Airbnb too. Find out what your place could be earning at airbnb.ca. On the podcast, HeyDude the 90s called, David Lasher and Christine Taylor, stars of the

cult classic show, HeyDude, bring you back to the days of slip dresses and choker necklaces. We're going to use HeyDude as our jumping off point, but we are going to unpack and dive back into the decade of the 90s. We lived it, and now we're calling on all of our friends to come back and relive it. Listen to HeyDude the 90s called on the iHeart radio app, Apple Podcasts, or wherever you get your podcasts. Welcome to Stuff You Should Know from house.works.com. Hey, and welcome to the podcast.

I'm Josh Clark. There's Charles W. Chuck Bryant. There's Jerry. The papers have been shuffled. They're plum and true. It's time for Stuff You Should Know, the podcast. You know what's not plum and true? My gut.

Anything in my house. I went to all of my house had those gross, cheap, hollow, gore doors, you know? Oh, yeah. Yeah. They're not doors. I mean, they function as doors. If there's air in your door, then it's not a door. So one by one, I've been replacing them with wood solid doors, and I went and did that

for our bedroom, and man, oh man, was it frustrating. Oh, hanging them because they didn't want to hang. It's the worst. Like nothing straight. Yeah. Like, oh, that looks good. And then it goes to shut and it's like whack. Well, I'm sure it was straight, you know, a hundred years ago, you know, and then over

time the house settled in, and now it's doing its own thing. So I had to shave the door in so many places it looks like a Dr. Seuss door. Oh, cool. You should plant one of those weird Dr. Seuss palm trees in your yard to really complete it. It's called marijuana. So I'm glad you just said marijuana, Chuck, because you have every right to say the word marijuana in this country.

It's a free country. You can say the name of a plant. You know, people do say and have long said, this is a free country. I can say whatever I want. Free speech is one of the basic hallmarks of what makes America a free country. Freedom of speech, but America is not the only country that enshrines a freedom of speech protection in its charter. Yeah, there are varying degrees of it in many, many countries.

Right. In some countries, there's not very much. In other countries, there's a lot. And the U.S. is arguably one of the leaders, although some people point to Europe, and we'll talk about those later, but some people point to Europe's free speech protections and say those people know what they're doing. Right. In the U.S., if you look at free speech, you go to the Bill of Rights, typically.

It's a great place to start. Bill, great guy. And you will find in the First Amendment of the Constitution, which is the first part of the Bill of Rights, it says in there specifically that Congress will make no law abridging the freedom of speech. It's as simple as that. It doesn't say unless speech says this, unless somebody says that, unless you really don't like the guy.

There is no... It's absolute. Yeah. It's an absolute protection of freedom of speech. And yeah, and that goes on, I think, it's pertinent to mention, abridging the freedom of speech, or of the press, or the right of the people to peaceably to assemble. Founding Father JFK. And to petition the government for a redress of grievances.

Oh, I'm sorry. That wrong. That was taken anyway. Those were all very important, you know? Sure they are. Oh, yeah. Freedom of the press, right to assemble. It's a pretty important one.

Yeah, and because we had just left the country, one independence from Britain, who at the time was like, no, no, no, we very much want to squash any dissenting opinions about the ground. Exactly. And people were getting thrown in jail for that kind of stuff in the colonies. They were trying to quash a rebellion, and that's a pretty important part of it if you're a monarchy, an absolute monarchy that wants to keep the rebels in check. You just say, you can't say certain things, and if you do, we're going to throw you in

jail. It has a freezing effect. Yeah, or their weird punishments, like when they said, stick a sock in it, they went, yeah, okay. And they went, no really, stick a sock in it. By law for eight months. Governor. And tape it shut.

Sure. With my dirty sock in your mouth. My dirty 18th century sock. My wool sock from my wet boots. Right. Quickly, though, I think we should point out that as we were going through this, I realized you could have an entire podcast called the ins and outs of free speech. Yeah, like a series, a whole show.

You could have a whole show about it. That's just an episode. So this is an overview, as we do, that is going to pick and talk about various court cases over the years, rulings and writings of judges. That are pertinent. But man, it's deep and wide. Yeah, it is. Especially considering that, again, when you go to the Bill of Rights, it just says, Congress

can't pass any laws that abridge the freedom of speech. They're like, why does he keep writing it there? And Chuck, not only, though, was this in retaliation or reaction to the British monarchy, it was also a big part of enlightenment thinking as well. The protection of freedom of speech was a huge aspect of the enlightenment. And obviously, the United States was founded during the enlightenment as part of the enlightenment. It was an enlightenment experiment, right? Yeah, like we don't want to restrict thought or expression.

And some might say that if the Britain hadn't been so intent on squashing dissenting opinion then we might not have been so enlightenment aside. So heck bent on insuring those rights. So maybe it all worked out for the best. Yeah, I think so. And Britain came around, right? You can still get the sock thrown in your mouth, can you? I don't know, man.

It's on the book still. I just don't know if they do it anymore. The socks are much nicer now, though. They're all happy socks. So since you have this very broad protection of freedom of speech, right, then there's nothing more to be said about it. Anybody can say anything they want. Not quite true.

It isn't true. Yeah. Because we have three branches of government here in the US. We do? Yeah, it turns out. I thought that was just one. You got the executive branch, which is the one I think you're thinking of. Then you have the legislative branch, Congress, which is actually separate.

And then you have the third branch, the judicial branch. Yes, they are equal and important branch. And with the congressional legislative branch, they pass laws. People go out and break laws. People get convicted. People appeal their convictions. And in some cases, those convictions and the laws are questionable enough or interesting enough that it will eventually make it to a high enough court that the court will rule

on whether or not that law holds up to any constitutional standard. Over time, freedom of speech has been shaped and expanded and paired away by the courts here in the United States. Yeah, like maybe more so than any other kind of segment of law, or maybe not. But I'm going to just as a complete armchair attorney, I'm going to say that perhaps free speeches has been challenged more and whittled down and defined more than maybe any other aspect of law. Yeah, because one of the big things that the courts did with freedom of speech was to really

expand the definition of speech. Yeah, it's not just words that come out of your mouth. Or even write. No, like it can be a t-shirt that says F the police. Or it could say, yeah. Hug the police. Sure. Somebody might find that offensive.

Who knows? Thank you for coming to my rescue district. It could be a billboard. It could be a pamphlet you hand out. It could be an act, a symbolic act, flag burning. That was a big one. Remember that in the 80s? Yeah, absolutely.

Or refusing to say the pledge of allegiance. That was in I think World War II. Yeah, which is actually now protected as, because free speech can also mean the freedom to not speech. Yeah, because up until I think 1943 when the Supreme Court ruled on it, kids were being forced to say the pledge, whether they wanted to or not, and the Supreme Court said, no. We think freedom of speech is really freedom of expression. And if you don't feel like saying the pledge, you're free to express yourself in that way.

Yeah, and as you'll find throughout the show, we'll kind of probably say this over and over, freedom of speech doesn't have a lot to do with something you might find offensive or repugnant. Generally, the US has cited on protecting that right regardless of whether or not you're offended or you think it's awful. And that's kind of what makes America great in a lot of ways is, you know what, who are we to decide what, you know, to legislate morality essentially, and we'll get into all this with obscenity and all that stuff and pornography.

But even when it comes to like, you know, I don't want to say the pledge because of this reason. Right. The courts have said, you know what, that you're right. This is America and we may not like it, but that you're right. Yeah, and the whole reason behind this too, it's easy to just take it for granted, especially if you were raised in the United States, that you have that right, who cares what the basis of it is.

You can say basically whatever you want, you know, but when you really dig into why the founders sought to protect this and why it's been upheld and defended so much over the years is because the idea is that if you are free to speak your mind without fear of being put in jail or killed or beaten by a mob, that you are going to introduce new ideas to the marketplace of ideas. And through this, you're going to have an exchange with other people and a lot of times it's going to be contentious and it's going to be ugly, but over time, things can evolve and get better and change for the better through this exchange of ideas.

And to ensure that the engine of cultural evolution continues unabated, you have to have the free exchange of ideas and to have the free exchange of ideas, you have to have protection of free speech. Yeah, because if not, you have the government being the one saying, well, no, here are all the ideas. Right, exactly. And don't worry about having any of your own. Yeah, these are the ones.

Yeah, and in a lot of cases, those things can come across as really great ideas. Here in the US, up until the, I think the mid fifties or early sixties, there were laws on the books where it said, you can't speak ill of groups. Like you can't say anything about Jewish people or Muslim people or any group. You can't say these things. Yeah, like hate speech was not protected. Right. It was called group libel.

And that actually sounds pretty good in a lot of senses, like, yeah, we shouldn't be talking trash about entire groups of people because it does, it can lead to problems. But that same prohibition on speech came to be exploited by white Southerners who were in power in the fifties who said, Martin Luther King, he's trying to incite violent social change with his radical ideas, somebody needs to put a duct tape over that guy's mouth. Right, stick a sock in it. He doesn't have the freedom to say this and actually our right to say hateful things about other people was a direct result in the United States of the civil rights movement being

protected by the courts against white Southerners who sought to squash their speech. Yeah, so hate speech is due in part to Dr. Martin Luther King and trying to advance civil rights in a weird turn of events. Yeah, it really was. And in Europe, and we'll talk about this a little more, like you said, some people say they have nailed it, they don't protect hate speech and you can't deny the Holocaust publicly and you can't say Jewish people, XYZ or this group of people are like this. Some people say that's kind of right on the money.

We have taken a different tack here in the US. Right, and Europe does that because they have a pretty recent example of what can happen that you do have freedom of speech and that a totalitarian government can hijack that freedom of speech and use it as propaganda to incite hatred amongst an entire population or even as this one author put it, to prepare them for extermination. Just basically saying like, hey everybody, get those guys, they're the reasons you don't have jobs, they're the rapists, they're the people who are going to kill you and steal your family's wealth and well-being.

So get rid of them, turn on them. And that's the whole point of saying nobody can incite hatred through speech in these European democracies because the state has done it before. Yeah, and we all see what happened there. Should we take a break? I feel like that's a good intro. Sure. Broad, all-encompassing, passionate.

All-encompassingly. All right. Well, we'll come back here in a minute and get down to the nitty-gritty of some of these court cases. Okay. Learning stuff with Joshua and Charles, stuff you should know. Hey friends, when you're staying at an Airbnb, you might be like me wondering, could my place be an Airbnb?

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So if you want to go back a little bit to Justice Oliver Wendell Holmes, Jr. Son of Sherlock. One of the famous Justices of the United States in a lot of ways, but very specifically because everyone has sort of heard the old thing that you can't yell fire in a movie theater and say that's free speech because that will, in the case of, in the 1919 case, Shink v. United States, Charles Shink was arrested for distributing material basically that said, hey, don't the US draft, military draft is BS. Don't do it.

Fight against it. And they said, you know what, that's espionage actually. And that went all the way to Supreme Court and they did not protect that right because in the words of Oliver Wendell Holmes, he said, did the words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent. And that's sort of in line and later on in that same ruling, we're talking about yelling fire in a theater as an example. Like you can't do that because that'll incite panic and people will get stomped.

And in this case, this kind of set the precedent for or the tone for all free speech cases to follow is weighing the individual right versus the public good. Or in this case, the individual right versus creating some problem or evil as he put it that Congress has a right and an interest to prevent. Yeah. A danger to the country. Right. In this case, really what they were saying was they were suppressing criticism of a government

program, the draft. And then Holmes was fine with that. But within a year, I think he saw his test, you know, does it present a clear and present danger being used in a way to squash dissent when a bunch of anarchists who are just generally advocating the overthrow of the government rather than need to do this on this date at this time, they were convicted under the test that Holmes created. So he took what was called the great dissent and actually dissented against his own former test.

Yeah. And said, no, it has to present a clear and present danger, present meaning like it's about to happen or you know the time that it's going to happen. And it's a clear danger like this is what's going to happen because this person said that. So that ultimately became the format for what we'll talk about in a little bit, which is inciting violence. Yeah, and that's not to say that, like the ruling there, like you said, was about a clear and present danger, not necessarily the fact that Charles Schinck was against the war because

we have a long history in this country of being able to be a wartime dissenter and talk about it and be protected. During Vietnam War, there was a man who had, he went through an LA courthouse and he had a jacket that said, you know, F, the draft, but it was really spelled out. It's so ironic that we're censoring ourselves in this one, but it's a family show. It's a family show. F, the draft, and they, as you will always, almost always see here, these people are, like you said, usually arrested, convicted.

And then that's when they're, well, maybe hippies, you never know. And then that's when the courts take it up and potentially either protect or don't protect the speech. Right. In this case, the court said, no, you're within your right because someone could see your jacket and then not look at it. Right. And that's a good point.

Like you, you can just look away from the guy's jacket, right? You can also not take the pamphlet that the guy's handing you. Never take the pamphlets. You can also not rent the movie that you find offensive. You can also turn the TV station. You can also turn the radio down. You can also not go to the website. You can turn our podcast off.

To me, well, you shouldn't, but you could. To me, the alternative of not receiving some speech that you find offensive, like being able to get away from it, that to me is the ultimate test for whether speech should be restricted or not. And since you can, in virtually any situation, get away from speech, except maybe skyriding. We should probably really regulate skyriding pretty, pretty toughly. Now you can look down at the ground, but I guess you could, yeah. So as long as you can get away from it, or more to the point, shield your children from

it, I don't think it should be, I don't see any reason for it to be entailed. For skyriding, you would have to argue in court that it is such a delight to children that they can't help but look like you would have to physically restrain them and put blinders on them. Exactly. And that's unreasonable, Your Honor. Right. And then do a drawing of Barney, and that would satisfy that.

Is Barney still a thing? I think Barney will always be a thing. I don't know. So over the years have been, like we said, a lot of court cases that have kind of whittled away and defined, not whittled away, you know, because that... Molded? Yeah. Shaped?

Molded and shaped. Yeah. So Marvin O'Marve ran an adult book business, and what he did was he sent out mailers. He'd like to send out a mailer. And these mailers would show up at houses where, you know, my kid might read it, or someone easily offended might read it, or not so easily offended might read it. And there was a mom who... This was her adult son?

Yeah, it was a mom and her grown son who's the manager of, I guess, the family restaurant. And they... Was he childlike? Maybe. He was... His eyes were burning. I don't know, maybe his mom just treated him like a kid, who knows, but they said, you know what, you know, this guy shouldn't be mailing these randomly to just whoever.

We certainly don't want it, so we're going to call and complain. Yes. And Marvin Miller ended up getting arrested for obscenity. Sure. And this is a huge... This turned out to be a huge case. Yeah, it went all the way to the Supreme Court, and yeah, it was what you call a... What do you call that?

Landmark? Well, Landmark's... Watershed? Watershed. Yeah. Couldn't think of it. I was like, we did a podcast on it recently. Yeah.

It's an Indigo Girl song. That's right. It was a watershed case. Miller v. California, and I'm going to say v instead of versus. I think we've talked about that before, right? Sure. It makes you sound more legal-easy. Yeah.

And everyone likes being legal-easy. Sure. In 1973, like I said, the Supreme Court heard the case, and they found that his speech did not qualify for protection, but here's the hitch. They didn't rule on the obscenity. They ruled that, hey, we were protecting kids, and you can't just mail this stuff to a house because kids live in houses. And so it was inappropriate content for children, and what it did as well is it specified a

test for defining obscenity, which boy, over the years, this has been a really tough thing. And it seems like over the years, the courts roundly don't want any part of that. No. If there's one thing too that as far as restricting free speech goes that drives me up the wall, it's obscenity. The court should not have anything to do with obscenity. And mostly they don't want to. And mostly they don't want to.

Right. There's this great quote from Hugo Black who, as of this podcast, has become my favorite Supreme Court justice of all time. He said, in Mishkin v. State of New York, I wish once more to express my—this is my Hugo Black, by the way—I wish once more to express my objections to saddling this court with the irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, site-by-site, personal judgment of the members of this court. But pornography, whatever that means, is too hardcore for people to see or read.

Yeah. Basically, they were tired of sitting in court and looking at pictures of obesity and ruling on this stuff. Right. Like, what about this one? What about this one? Well, see, the thing is they were looking at like pulp books, like Mishkin was a guy who had a publishing house of pulp books that showed like BDSM or lesbianism or masturbation

or whatever on the cover. He's like, this is actually pretty nice. Right. They're like, I mean, it's a perk of the job, but we shouldn't have to do it anyway. And so the idea that the court is ruling what is obscene and what is not is it's legislating morality, clear and just clearly it's legislating morality. And I don't think the court has any right to that at all. But they have.

They have a long tradition of it. And over time, they've actually come to protect pornography with the exception of child pornography, which you're not really going to, you're going to be hard pressed to find anybody who argues for freedom of speech as far as child pornography goes. And then obscenity, which came out of this, the three-pronged test to determine what's obscene came out of that Miller v. California case. And it says this. It says that if the average person using contemporary community standards can look at something

and says that this arouses the prurient interest. Yeah. Does it mean sexy time? Yeah. That's the prong one. And you have to satisfy all three of them. Is this patently offensive sexual content? Yeah.

Or patently, either one. I say patently. And I got that from Mr. Burns. Oh, well. I say patently like Mr. Burns does. Yeah. And then the final one is a big one. It's whether the work taken as a whole lacks serious literary, artistic, or potentially

or political or scientific value. Right. That's subjective. Yeah. Extremely subjective. Like, it literally says, if it's artistic, right, who says what's art and what's not? Yeah. And very famously, Justice Potter Stewart, the very, very famous line when asking about

obscenity or pornography said, I know it when I see it. Right. But they have long said, like one of them said, we may be trying to define the indefinable. Yeah. It is indefinable. Sure. You ask 100 people what pornography is and you'll get 100 different answers. And so as a result, some courts have said, yeah, this community, these jurors decided

that this is obscene. So people go to jail for depicting sexual acts or something like that, that some jurors in that town found distasteful. Yeah. Because America has long had a very puritanical hang up with sex and nudity. Violence bring it on. But nude bodies, shame, shame cover that up. I think that's probably my issue with it too, is we're super like, we'll expose kids to

violence, extreme violence at a very young age. But sexuality, hey, you wait until your parents are dead. Yeah. You understand that. It's just unwonders for the therapy industry though. Sure. It's true. So hold on, Chuck.

There's one other thing. The other problem I have with defining obscenity is that there's no national standard. The courts even said it would be impossible to come up with a national standard. So if Miller had been tried in a community of swingers who were into that stuff, he probably would have gotten off. Yeah. Right? Yeah.

But because he was tried in a community that decided that, no, this is obscene, it was deemed obscene, whereas in another community, it may not have been deemed obscene. That's no test. Well, yeah. And that became a big deal at one point because they basically, the law said that community standards are, you can't have a national standard because what someone thinks in Skokie, Illinois is not what in Sin City, Las Vegas, they have an entirely different definition of obscenity and pornography.

Right. You know? Yeah. And they're right. Yeah, I guess they are right, which is why, to me, it's one or the other. Either get rid of anything that could possibly be considered obscene. Yeah. Or you allow it all.

So obscenity, it's obscene. It is. Well, we'll get more into obscenity, too, but there are a lot of other facets of free speech that you might not really think about. In 2013, there was a case, Bland v. Roberts, where there were these two dudes that worked for a sheriff's department, and, you know, sheriffs are elected, and they were running for office, and they were fired for commenting and liking on an opponent's Facebook page. Yeah.

Which, you know, this gets into, in the digital age and the internet age, a whole different slew of questions to be answered. And they appealed that case, and then won, actually. Yeah. Bland v. Roberts, as a result, Facebook likes are considered protected free speech under the First Amendment now. Yeah, but ironic, well, maybe not ironically, but Facebook and social media in general, you can also, I mean, it's at their discretion whether or not they take something down.

Yeah. And you can't say, well, it's free speech. And that's like, no, this is our private room, essentially, is our home. And inside a private home, you can tell someone to shut up. Private home? Private companies? Yeah. Social media platform?

Like, if you show up to work in a F the police shirt, they can fire you or tell you to change it. And if you say, no, no, no, no, like, this is my free speech, they'll go, no, this is my business. This is not a free speech zone, like the mall, remember? Yeah. Oh, yeah, that's right. Poor Victor Groen.

And here's the thing, too, is, and this isn't really a section in our notes, but... Are you riffin'? I get kind of riffin' here. I get kind of bugged these days with, I think a lot of people have the notion that freedom of speech means also freedom from consequence. And those are two different things. Like freedom of speech means that you were not going to be, well, you might even be arrested and convicted, but eventually it will be overturned, and you'll be vindicated.

But if a business or a comedian or a TV show does something that people find offensive... Or a provocateur YouTube guy. And someone wants to pick at them and shut them down or boycott them, and they cry free speech, it's like, you know, you know? You said that, you got away with it, you're not in jail, that doesn't mean there won't be consequences. Yeah, the right to protest is enshrined in the same amendment as free speech, yeah. But I think, yeah, I hear a lot, it seems like, more and more these days where people

whine about the consequences of their own free speech. And that's not enshrined in the Constitution, they're very likely will be consequences. Right, people will hate you. Maybe. But it's like you said, though, you know, it's there to protect the unpopular opinion. There's this guy who's an expert on free speech at Penn State, I believe. He said, we have a First Amendment to protect unpopular expression, or the minority viewpoint, because we don't need a Constitution to protect what the majority thinks, the majority takes

care of itself. That's a good point. It's the people who everybody else hates, and what they have to say, that is protected by the Constitution. Yeah, and Harvard law professor Noah Feldman, in a very unharvered law-like way, said, if your feelings are hurt, then that's your problem. Snowflake. You didn't say Harvard like JFK?

Havid. He didn't say snowflake, I was kidding. No, but what he was pointing out was basically the sentiment behind free speech in the United States that as long as you are not physically harming somebody, you, like emotional harm is whatever, it's not even going to register. Well, although that one article you sent, that op-ed, there was the guy that argued that emotional harm was worse than physical harm, and had a longer lasting impact. So there are two sides to every argument there.

Well, that's one of the reasons why Europe has said, no hate speech, it's harmful, like even if it isn't physically harmful, it's emotionally, it's an intellectually harmful, it's not good. All right, so we've dabbled in obscenity, and we'll talk a little bit more about it, but one of the other things that you can have insulting speech, but there's something called fighting words that is not protected, and it can be difficult to determine, and again, over the years, the courts have tried to do so, but in 1969, there was kind of a landmark case, Brandenburg v. Ohio, where Clarence Brandenburg was at a clan rally in Ohio, and said, we're

not a revengeant organization, but if our president, our congress, our supreme court continues to suppress the white Caucasian race, please, it's possible that there might have to be some revengeance taken, so they should have jailed them for grammar. All right, revengeance is, of course, not a real word. And neither is revengeant, although I think it's in a video game now, someone said. No. Yeah. Revengeance 2.

What? I don't think it's called that. Revengeance 2, or parentheses, S-I-C. Right. What does that stand for again? Sick. I can't remember, like, that's so sick, they got it wrong. Right.

I don't know. I can't remember now. I don't know this. Yeah, somebody else sent it in. People tend to write it after the stuff we write. We don't usually use it ourselves. Yeah, it's funny, though. I have this thing, you know, just the weird quirky things that everyone sort of does in

their head in life. Whenever I see S-I-C written in an article, I always try and think of what word either they got wrong or were replacing in the article, you know, to make more sense. Well, no, they use it to because- Well, if it's a misspelling or if it's not a word. It's basically the writer or the editor saying, this guy got it wrong, not me. Yeah, yeah, but, or am I thinking of a different one? What is it when they...

That's just when they put it in brackets and they put, like, there or something like that. Oh, okay. Because the person lets it out. Sick. Also goes in brackets, but it's basically saying, I'm aware that this is misspelled. Yeah, I knew what sick was. I preserved it to show what a dummy this guy is. I think I do it in both cases.

Like if it's a made up word, I'll try and think of what they meant or like the other one where there's just a parentheses and they just basically add something to make it more sense. Right. I try and think of, like, what did they say to begin with? It's a weird thing. No, I know what you mean. In my head right now, I have, for your eyes only, it won't go away.

Oh, I thought you were going to say, you're trying to figure out what I'm thinking. The brain does some terrible stuff. I have that in my head now too because you came in singing it. For your eyes only. Why? It doesn't make any sense. It doesn't. I haven't heard the song in decades.

A week-long earworm from a song you haven't heard in decades. Was it in a dream? I don't think so. You dreaming about she and Easton again? That was a good movie though. What about? Was it a Connery one on it? No, no, that was Roger Moore.

Are you sure? Yeah. You're sure? I think it was Sean Connery's last one. No. All right. I may be right here. I'll go to the map for that one.

All right. Getting back to Brandenburg, the Klan member who didn't know how to talk right, he was arrested for advocating violence and he won. Supreme Court decided in his favor and thus began the history, the long history of the United States saying, you know what, if the Klan wants to have a rally out in the public town square and they apply for their permit, you've got to let him do it. But again, that actually, that the Klan's hate speech being protected was lumped together and came out of the civil rights movement's freedom of speech being protected as well.

Yeah. Because they were like, well, hey man, Stokely Carmichael says that, you know, we've got to like take control from the Whites, rise up and take control, like that's hate speech and the Supreme Court says, you know what, you're right and that's protected. Right. That's what the Klan's saying, or Illinois Nazis and Stokely. Right. Second time Stokely's made an appearance in this episode.

Yeah. Why not a third? How about the usual suspects? I knew that was coming. So yeah, anyway, I think what you're saying is as a result, hate speech has a decades-long tradition of being protected at any and all costs unless you are using it to incite violence. Yes. And that ties in to that original prohibition on free speech that Oliver Wendell Holmes

came up with is that it presents a clear and present danger. So rather than using that specifically to incite violence, you basically have to be saying, it's not enough to say like we black people need to rise up and take control of the United States and if it has to be violent, it has to be violent, but we can't live like this anymore. Right? Yeah. If Stokely Carmichael's saying something like that or Malcolm X is saying something

like that, that is protected speech. Even though it makes a lot of people or it made a lot of people uneasy to hear that kind of thing and they said, hey, they're trying to start a race war, it's still protected speech. On the other hand, if you said or Stokely Carmichael said, everybody needs to go get their shotguns and we're all going to meet here on Tuesday and we're going to take the streets Tuesday afternoon, that would not be protected because he would be directly inciting violence.

Yeah. What are the two things that violence has to be likely and it has to the advocacy for violence has to be directed to inciting or producing imminent lawless action, right? And then it has to be likely to incite or produce such action. So it has to be happening at some point that you can point to next Tuesday, something that's not vaguer and definable, like we should do this in the future if we're not granted greater rights. Right.

So it has to be something specific and it has to be likely to produce that effect, right? So if somebody is a great order and the people they're telling to get their shotguns all own shotguns at home, that would probably make it likely. And then a few years after that case, another one, HESV Indiana from 1973, defined imminent a little further and it said, an advocacy of illegal action at some indefinite future time that's protected. Right. So likely in imminent.

Yes. Interesting. All right. Well, let's take a likely in imminent break and we'll talk even more about obscenity after this. Hey friends, when you're staying at an Airbnb, you might be like me wondering, could my place be an Airbnb? And if it could, what could it earn?

So I was pretty surprised to hear about Lisa in Manitoba, who got the idea to Airbnb the backyard guest house over childhood home. Now the extra income helps pay her mortgage. So yeah, you might not realize it, but you might have an Airbnb too. Find out what your place could be earning at airbnb.ca slash host. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass. The hardest thing can be knowing who to turn to when questions arise or times get tough or you're at the end of the road.

Ah, okay. I see what you're doing. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place because I'm here to help. This I promise you. Oh God. Seriously, I swear.

And you won't have to send an SOS because I'll be there for you. Oh man. And so my husband, Michael. Um, hey, that's me. Yep, we know that Michael and a different hot sexy teen crush boy band are each week to guide you through life step by step. Oh, not another one. Kids, relationships, life in general can get messy.

You may be thinking, this is the story of my life. Just stop now. And so tell everybody, yeah, everybody about my new podcast and make sure to listen so we'll never, ever have to say bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart Radio app, Apple podcast, or wherever you listen to podcasts. All right, so did you see the movie, Carnal Knowledge? I didn't.

I thought, um, for some reason my, I was like, body heat's not that old. That's what I thought the movie was. Wasn't that a sexy one? Body heat was quite sexy. I never saw that one. Very good movie. Was it Kathleen Turner? Kathleen Turner.

That was Brian DePalma, right? Oh, I think so. Yeah, I think so too. She's also the star of one of my favorite all time movies, which is The War of the Roses. Man, that is a great movie. I can watch that movie a thousand times and not get sick of it. That's a good one.

Um, all right, so Carnal Knowledge was the Mike Nichols film with Jack Nicholson, Candice Bergen, and Art Garfunkel of all people. Huh, what is Art Garfunkel doing in there? He sings in a falsetto throughout. It's very nice. For your eyes on me. Linder and sing song. Um, no, he was, he acted in it.

He was good. Was he good? Yeah, yeah, it was a great movie. Was he like Paul Simon good? Well, he's acted too. I know. Here and there. Really good movie though.

I mean, like I said, it was Mike Nichols. It was not like porn. Right. But it was just a very frank movie about sex and relationships. Um, like Nicholson plays sort of a, you know, what you would think, kind of a womanizer and Art Garfunkel's a little more, uh, tender and, um, not as big of a womanizer. Okay. Trying to decide how to put all this.

Tender. How to put all of them in three points of their life and from like college to middle age and their sexual exploits. Huh. So anyway, it sounds kind of boring. Just really good movie. Is it? Yeah.

And very famously in 1974, I think it might have started in 73 and right here in Albany, Georgia, there was a theater manager that was arrested for showing that movie in his theater. Oh, is that where this case comes from? Yeah. And he was arrested and convicted of distributing obscene material. It's Jenkins v. Georgia, right? Jenkins v. Georgia was a court case.

And of course the Supreme Court ruled, um, that carnal knowledge was not obscene. And I think in the ruling, they said, it's Mike Nichols for God's sake. Right. He's, what do you think? It's precious treasure. Uh, and, um, well, they said that it basically your, your opposition to it, state of Georgia, making us so proud is that there's nudity in it. Yeah.

Like a lot of nudity. They were like, that's not enough. That doesn't, it's not, um, patently offensive, sexual, sexually explicit material that has no artistic value. Yes. It, it fails the, the Miller test is what it's called. Yeah. It passes.

No, I guess it would fail the Miller test because if you pass the Miller test, it would be obscene. Right. It's a weird way to look at it. I guess. Yeah. Uh, here in the modern age, like I said with, uh, the internet that opened up a whole host of issues with free speech and, uh, notably the child online protection act, uh, Copa.

Yeah. That was a big deal. Very big deal. Copa was legislation that was introduced to, you know, protect kids from online smut. Right. But on the other hand, uh, freedom of speech advocates said, no, they're going to, this is the start of regulating the internet. The internet is a free, open, wild west and it should not be regulated.

So don't try to regulate it. And again, everybody said, except for child pornography and the person talking said, well, yeah, except of course child pornography, don't be stupid. Well Copa never actually went into effect. It went through three rounds of litigation over the years and, um, you know, basically one of the big things that the court would say back was there are protections that parents can put in to restrict their kids from this stuff. And that's enough.

Yeah. The thing like the court really tends to, to not like government overreach and tends to restrict it whenever it comes about, right? Yeah. And this was really tricky because what they were trying to do was apply a federal law to community standards for a global product. Right. And that's just, I mean, it's not about complicated law.

That's tricky. It's very, very tricky. Yeah. So, um, the court struck it down in part because they thought it was overly broad. They said that the, uh, what the government was considering offensive material would not, would not pass the Miller test. So that was overly broad. And then they also said, yeah, there's alternatives like parental controls that are widely available

are, can solve the problem that the government's looking to solve, which is restrict kids from pornography, um, but without restricting anyone else's individual liberty, right? So they said, see you around, Copa. Uh, and Justice Steven Breyer wrote in a concurring opinion, this is a good quote too, uh, to read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a hecklers veto affecting the rest of the nation. Right.

Basically saying what many have said was this is an impossible task. So don't even try. I wish they'd take that, that idea with obscenity as well. Well, and here's the other thing when they struck down, Copa, and this is another really good quote. And this, this one, uh, from US district judge, uh, Lowell Reed, Jr., not Lou Reed, but Lowell Reed, Lou Reed said, take a walk in the wild side. Lowell said, maybe after a nap.

Lowell said, uh, and this kind of sums up for me, I think he said, perhaps we do the minors of this country harm the first amendment protections, which they, uh, will with age inherit fully are chipped away in the name of their protection. Right. So basically like in trying to protect these kids, we have restricted their free speech when they become adults. Very interesting. Yeah, it's true.

You know? Yeah. Um, the, the, the courts, do you go with obscenity? I'm great with it. The, the, with the courts have also kind of shaped, um, freedom of speech or protected freedom of speech by saying, yes, certain types of speech are not protected, obscenity, child pornography, fighting words, fighting words, and then libel's another one. But one of the ways they, they further protected even when they're restricting it is to say

not everything that you say is libel is actually libel. You, it, it's really print though, right? It's very, I think it more has to do with slander's words. Oh, is that what it is? Yeah. Okay. So with libel laws, and I would guess slander falls under the same laws, right? No, no, no.

So, but with libel laws, um, it's really difficult to prove libel, right? Because the, the person printing the libelist, um, information, which is basically you're defaming someone's character. Yeah. It's a really old, long standing prohibition. I think even back in, uh, ancient Greece, they had a, a certain amount of freedom of speech in Athens, classical Athens. Um, but even, even that was restricted as far as talking trash about someone's character.

Right. Right. So that's a, that's a really old idea that you shouldn't, you shouldn't put fake stuff about someone's character reputation out there. And if you do, then they have recourse. Yeah. They have to prove that, that person said something libelist. They have to have had malice of forethought.

They had to have, um, known that what they were printing was wrong or untrue. Yeah. That's the key. It has to be untrue. You can express an opinion about somebody and say someone's a big poopy pants, but you can't say someone's a big poopy pants who did X, Y, and Z if that isn't true. Right. Exactly.

Yeah. They have to prove, or to prove libel, right? So it is unprotected speech, but it's also protected in that it's not very broad. It's very narrow. Right. And then part and parcel with that is, um, satire and parody are also very much protected in the United States. Thankfully.

And we have Larry Flint, hustler, uh, publisher to thank for that. Yeah. Every, I mean, people versus Larry Flint is a very good job of, of that spelling out that case, but very famously he went to war with the Reverend Jerry Falwell because he had a cartoon in his hustler magazine that, uh, was an unflattering, uh, sexual depiction of Jerry Falwell. It was no, it was a fake Campari ad. It was a spoof Campari ad, but it was a cartoon though.

No, not the one I saw. Oh, really? I saw like a hand drawn. I'm sure he had that too. Yeah. But this, what the court case was, it was like a Campari ad and there was like a Campari um, uh, ad campaign where people talked about their first time they had Campari or whatever. And Jerry Falwell's was, uh, he and his mother got drunk on a Campari and had sex in the

outhouse and that was actually how he lost his virginity. Right. Jerry Falwell didn't like that very much. No, of course not. So he sued, um, he sued Larry Flint and Larry Flint won that case. It went all the way up to the Supreme court. Yeah. It was a 1988 case and they said, nope, this is parody, this is satire, it's protected.

If any reasonable person, um, sees it and would know that it's not true, it's protected. And Larry Flint said, your honor, no reasonable person would see this. Right. Pervert's back. Oh, yours is better than mine. That was good. Oh yeah. Was that a good one?

Yeah. He sounded like Woody Harrelson doing Larry Flint, which is right on the money. In my head, I sound like a muppety tenor doing Woody Harrelson doing Larry Flint. Great movie. The Muppets? People versus Larry Flint. It was a great movie. You saw that?

Yeah. Um, yeah. And anyway, thankfully satire and is, is protected here in the US, uh, because we have a long, rich history of political cartoons and rich satire that can really make a difference. Like you see what's going on with Saturday Night Live right now. Right. It's like, they've had a long, long tradition of political satire and, and most times that opening bit they do is political in nature.

Yeah. Uh, and then, you know, it's nothing new. They've been doing it forever. No, it's true. So, I don't know. I just think it's, when you start like poking at that and the onion and, you know, some of the great satirical publications, that goes down a bad road, you know? So Chuck, one of the things that's coming up now that we're connected globally is this

idea that what we talked about at the beginning, the US has very, um, broad free speech protections. Some other countries don't. There's like the, the UN Universal Declaration of Human Rights, right? Yeah. Some of that has, or it has some free speech protection in it. Not everybody signed on to it. And a lot of people think there will never be any way to, to protect freedom of speech worldwide.

Right. Normally, up to say the 90s, that wasn't that big of an issue unless like Selman Rushdie published a book or something like that. Yeah. Um, because each country had its own standards and what was said in one country typically stayed in that country, even if it was offensive to another country, right? Sure. The, the, the two didn't collide.

Now that the internet's here, what's said in one country can be carried immediately to another country. Yeah. And that offense can be taken. Yeah. And this went out of hypotheticals and into real world, well into the real world, um, back in 2012, when a guy named, uh, Nakula, Bacelli Nakula released a 14 minute video called the innocence of Muslims.

Do you remember that? I don't. It was extremely incendiary. If you, um, were a Muslim, you were going to be offended by this because it basically said the Prophet Muhammad was a fraud. Uh-huh. Uh, it, it had him as a Flander, a womanizer, uh, I think a pedophile. It was like, and the people who were in it were scared to death because of the reaction.

There were riots around the world once it was translated into Arabic and released. What did they think was going to happen? I don't, I don't know. I don't, I don't remember if the person was a, a provocateur on purpose or if these were their real beliefs on Islam, regardless, they were, um, Egyptian American. So the video was protected even though elsewhere in the world, they were literally rioting the streets and people were dying because this video existed. They were so upset by it.

But in the US TS, and as far as I know, it's still up on YouTube, right? Right. It's still being protected by free speech. Well, that's a, that's a great example of should the US have the freedom of speech that is going to cause harm in another country now that those two countries are connected via the internet? Right. There's no easy answer to that.

Right. That was basically a rhetorical question at this point, but it's one that I think is going to have to be decided more and more. And what goes to the heart of it is blasphemy in this case. Yeah. Um, blasphemy specifically means insulting God or any religious or holy person or thing. It means different things in different religions. Sure.

Um, it's actually still illegal in some states in the US. Um, Oh, is that the last one was struck down in 2007. Oh, was it? Uh-huh. Okay. Well, but 2007. Yeah. Maybe up until 2007.

Um, yeah. Yeah. Had laws until 2007. That's right. Again, 2007. Yeah. Uh, but the last conviction for blasphemy in the US was in 1928. So it was, these were laws that were sort of on the books that no one did much about.

Well, there's a dude who is in Little Rock, Arkansas, and he was an anti-religious atheist. This was the 1928 one. Yeah. White supremacists who, um, had an office and in the office, there was a sign out front. I guess it was a storefront office and it said, um, evolution is true. The Bible is a lie, God is a ghost and he got arrested and convicted for blasphemy. Yeah. So again, this is 1928 and there were blasphemy laws on the books until 2007.

That's crazy. And yeah, it is. It's, it's really surprising to think that the United States ever had blasphemy laws, but they were fairly recent. Yeah. And you know, when it comes to religion, like the United States protects Westboro Baptist Church and they say you can go out and you can have, uh, offensive messages on signs at military funerals if you want, um, because this is the United States and we allow that.

Yeah. And so I think that kind of brings up that one op-ed you're talking about from, uh, the Atlantic that, um... Free speech isn't free. What's the title of it? Yeah. What's the, what's the guy who wrote its name? Garrett Epps wrote it.

Yeah. And he makes a really great, he didn't even make a case, he just kind of presented both sides. Well, and what he did was, here was the quote, and I think you're right on the money with that, um, with that summation because he said, um, rep, repressing speech has cost, but so does allowing it. And the only mature way to judge the system is to look at both sides of the ledger. Right.

That really kind of says it all. Yeah. And he's basically saying like, it's not enough to be, to say freedom of speech exists because we have free speech in the US, America's a free country. You have to examine why and you have to defend it or else it's just a privilege and privileges are always subject to attack. But actual freedom is, should be defensible. And so he says, we need to defend it, especially based on another op-ed that he was actually

talking about by a law professor from Fordham, Thane Rosenbaum said, um, no, there are actual harms to speech. It does cause physical or it does cause emotional harm that can in some cases exceed physical harm. It can be longer lasting. It can have a greater impact on more people at once. Um, and so why do we allow hate speech in the United States? And Garrett Epps doesn't have the answer.

He just examines the whole question, I think really well. Yeah. I thought it was interesting. You know, he makes a point that the same laws that allow for strides of civil rights and feminism and gay rights groups over the years are the same laws that protect the people that have done them such harm over the years. Right. Um, and you know, like you said, you got to look at both sides of the ledger.

It might cause harm and there is a cost to it, but ultimately the freedom, well in my opinion at least outweighs those harms. So there's this guy named Jonathan Roush who, um, Garrett Epps quotes, but he wrote another op-ed that I read and his idea of why freedom of speech, including hate speech is important is because he says that if you suppress speech, you're suppressing thoughts, right? So if you suppress hate speech, it's still going to be there. It's still going to be boiling under the surface. People are still going to quietly, subtly trade in it, but you can't refute it.

If you allow hate speech, it can be refuted loudly, publicly. And then from that, and he makes the case that this is why the gay community has made such strides in the last few years because of the vicious homophobia that was publicly hurled at them, that they stood up and said, you know what, this isn't true. You know what? We deserve this right. You know what? We're not pedophiles.

You know what? We should be able to adopt everything and shot down all this stuff systematically. And America was watching this back and forth and gay people won public sentiment just through logic. He was saying if you didn't allow that hate speech in the first place, there wouldn't have been that position to address that hate speech and prove it wrong. Yeah, because you can't suppress hateful ideology. It's going to exist.

So allow the speech so it can be publicly refuted and just smack down. Yeah. Yeah. This is probably the best explanation for freedom of speech I've ever heard. Good way to close, too, huh? Man, thanks a lot, Jonathan Rausch. You got anything else? No, I don't, but a little tease.

Before listener mail, we're going to have a couple of very intriguing follow-ups to recent questions. Oh, okay. Ooh. All right. Well, if you want to know more about free speech, just start talking. And since I said that, it's time for whatever Chuck's got up his sleeve. Yeah, before I read the listener mail, two things.

On a recent show, we asked about our old buddy Sarah, the amazing fan, and then our old buddy Sam, the summer of Sam. Weirdly enough, we come into the office and Sam's parents dropped off a letter to us. Sam wants to be an intern here. So he's around. He's in college. Yeah. Doing great.

Sam wants to intern, wrote us a letter, and we're going to try and get him in here. Oh, yeah. And he wouldn't be our intern, specifically. He'd be for how stuff works. But we're going to burn a lot of currency to make sure he gets his job. Yeah, I hope it happens. It'd be great. It was good to hear from him.

It sounds like college is going great. Yeah. His resume was stacked, buddy. Nice, Sam. And the other thing is, I don't know if you saw this, because I do the Facebook, but Katherine Mary Stewart of Night of the Comet played the older sister, Reggie, and was also in The Last Starfighter and Weekend at Bernie's. Weekend at Bernie's, yeah.

And was sort of the darling in the 1980s and 90s, and is still an actor today, does theater working stuff, and movies, and TV, and radio. She does it all. She got in touch with us. She listened to The Mall's podcast, posted on Facebook that we shouted her out, and also her hometown, Edmonton Mall. And I was just knocked out and told her to email us. She emailed.

I think she lives in New York, and I said, hey, listen, next time we do a show at the Bell House. I want to act out Weekend at Bernie's with you. Yeah, I'll play the dead guy, and you and Josh can just puppet me around. No, I was like, you know, come and bring your family. We'd love to guest list you. Maybe you can hop up on stage, and we can chit chat for a minute. Nice.

I took the liberty of doing that. That was very nice. I was like, no, she can't get on stage. Right. Anyway. We have to edit that part out. I just thought that was very cool. Yes, very cool.

Thanks for writing in Catherine Mary Stewart. Yes, and boy, she's found the fountain of youth. She looked exactly the same. Oh, yeah? Yes. And Sam, too. I'll bet you. He looks exactly the same.

He does. He's like 20. He looked like he did when he was 17. Well, thanks, dudes. Oh, we haven't even done Listener Mail yet, haven't we? No, it's a Listener Mail, I'm just going to read it. It's called Would You Rather. I feel bad for Jerry.

She's not going to know where to put the Listener Mail chime in. That's right. Hey, guys. Just finishing listening to Soylent, and thought I had a surefire argument starter for you guys. Josh's rant about the pros and cons of cooking and sharing meals. I don't rant. Reinforce my position on the subject.

I'd like to know what you think about it. Here's how you play Would You Rather, and it's not the sexy one. Okay. You get to forego one thing that humans need to do in order to live, either eating, sleeping, or breathing. You can do the thing that you choose to forego, of course. You just don't need to in order to live, and you remain neutral in terms of pleasure or discomfort caused by the lack of the necessity.

So you don't feel hungry. You don't feel sleepy. You don't feel affixiated. It seems like a stopout to me. So he wants to know, what would we rather do without? Mine is easy. I would easily rather not breathe. Yeah, breathing.

It's like a bonehead question. It would say, like, I don't want to eat. I get a lot out of breathing. I'd have trouble giving that one out. Well, Andrew said he wouldn't eat. That's the answer to that question. He said, I would always forego eating because of the money it takes to feed myself and the waking hours I would save.

Yeah. I mean, people, that's the two things with food. Time and money. Yeah. Yeah, but you get so much pleasure out of it. Breathing, sure it's free, but who cares, especially if you're not going to die from not breathing in this situation, in this weird fantasy world of his? I say anyone who chooses, and this is Andrew talking, I say anyone who chooses to forego

sleep is a dummy, because not only are you not saving on food, you have to entertain yourself for an additional five to eight hours a day. The argument there, though, is you could get more done. Sure. Sometimes I do wish that we didn't have to sleep. Sometimes I also enjoy sleep, too. He says, plus I could eat socially every now and then under these terms if I wanted to. But who would just take a nap if you don't feel refreshed afterward?

I would. I love to sleep. And then the non-breather's are just like deep sea diving and exploring volcanoes and stuff, I guess. Oh, I didn't think about that, Perk. Yeah. You just go swimming all the way to the bottom forever. Yeah.

So it's clearly breathing is the answer. It's not even a subjective question at this point. We've proven it. Yeah. All right. Keep up the good work. That's from Andrew. Thanks, Andrew.

You keep up the good work, too. Yeah. Nice. I just want to say you're a sucker for not eating, though. Yeah. If you want to try to stump us but fail at it like Andrew did, you can tweet to us at syskpodcast, you can join us on facebook.com, you can or slash stuff you should know. You can send us an email to stuffpodcastathowstuffworks.com, and it's always joined us at our home on

the web, stuffyoushouldknow.com. For more on this and thousands of other topics, visit howstuffworks.com. On the podcast, Hey Dude, the 90s called David Lasher and Christine Taylor, stars of the cult classic show Hey Dude, bring you back to the days of slip dresses and choker necklaces. We're going to use Hey Dude as our jumping off point, but we are going to unpack and dive back into the decade of the 90s. We lived it. And now we're calling on all of our friends to come back and relive it.

Listen to Hey Dude, the 90s called on the iHeart radio app, Apple podcasts or wherever you get your podcasts. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place because I'm here to help and a different hot sexy teen crush boy bander each week to guide you through life. Tell everybody, yeah, everybody about my new podcast and make sure to listen so we'll never

ever have to say bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple podcast or wherever you listen to podcasts.