Now at Reason.tv: Freedom of Expression in the Age of Obama


At Reason Goes Hollywood, our 40th anniversary bash held November 14-15, 2008 in Los Angeles, Reason.tv's Nick Gillespie led a lively debate over freedom of expression, the First Amendment, intellectual property rights, and the history of obscenity law.

Participants included Michael Robertson, founder of MP3.com and a leading advocate for innovation in copyright laws; Martin Torgoff, author Can't Find My Way Home, a history of drugs in popular culture and a writer for the VH-1 series The Drug Years and Sex: The Revolution; and Allan Gelbard, well-known First Amendment lawyer currently representing pornographer John Stagliano (who makes a cameo appearance!) in federal court.

Approximately one hour.

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  1. Sure you can. If you yell “fire” in a crowded theatre, and there is no fire, and you proximately cause harm to people, there is a legal mechanism in place for you to be punished and others to be compensated for damages. It has nothing to do with the word “fire” or the environment in which you yell it. Neither this nor any other justification stands as a rationalization of censorship. The criminal and civil charges stand as a large enough disincentive to commit such an act if general virtue is not enough.

    If the New York Times published blueprints for an atomic bomb tomorrow, I guarantee you nobody would build one. The bar to creating nuclear weapons is not access to information, it’s access to materials, facilities, equipment, and the people qualified to interpret and apply that information safely and successfully.

    If a person incites a riot, is the result of the act a justification to legislate against certain types of speech? Put another way, is an individual who’s goal is to incite a riot, or who is negligent and irresponsible enough to give a speech that will incite violence around a group of people who are likely to respond violently, going to be phased by an obscenity citation? This is ridiculous to argue.

    Taken to the extreme, there are laws against sexual abuse of minors and non-consenting adults; making it additionally illegal to produce and distribute videos portraying such acts is not going to give pause to individuals who want to commit these horrible crimes. Others who distribute these videos are already likely to be guilty of conspiracy, accessory to the crime, or aiding and abetting. If the goal is to put these sick assholes in prison longer, simply increase the sentences on the existing crimes. This is a poor excuse to undermine the rights of law-abiding citizens.

    Speech legislation is useless in preventing the straw-man situations which are used to justify it. There are already laws against, and systems in place for dealing with, violent, antisocial, or harmful negligent action. Making it illegal to talk about it, or to express oneself in ways and situations arbitrarily defined by the government as obscene or dangerous.

    Regarding copyright infringement, there’s no substantial proof that record companies are ‘dying’ due to p2p or any other kind of file sharing. Study after study has shown that the largest infringers are typically also the largest legal consumers. The problem is the market for media is completely saturated. I spend every dime I can afford for it on media already; if I want more media beyond that, well, maybe I’ll download it for free and maybe I won’t. I certainly wouldn’t spend a dollar I don’t have for something I want; if I buy it next month, I will be buying it instead of something else. Whether they’re ‘dying’ or just failing to grow as fast as they would like is also a matter of debate, but it’s not the government’s job to step in and protect businesses it likes when they’re failing. Especially not by giving those companies means to charge people money (via lawsuits) for things they don’t own and arguably would never have bought.

    Thanks to Michael Robertson for his work on mp3.com, by the way. I discovered some great artists I would have never heard of if not for him in mp3.com’s early days, and at around $6 an album I have 3 times as many great albums as I would have if I bought albums from the record labels.

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