Advertising

Michael Jordan vs. Free Speech

Circuit court ruling gives fame a First Amendment veto

|

No slam dunk for free speech ||| Diegoestefano97/Wikimedia
Diegoestefano97/Wikimedia

In 2009, Michael Jordan's entry into the Naismith Memorial Basketball Hall of Fame was marred by a "petty and punitive" speech focused more on settling old scores than celebrating his legendary career. As Yahoo Sports columnist Adrian Wojnarowski wrote at the time: "This wasn't a Hall of Fame induction speech but a bully tripping nerds with lunch trays in the school cafeteria."

As it turned out, the former Chicago Bulls star was only getting started. More than four years later, Jordan's indignation at the nerve of people trying to celebrate him is still playing out, only now the battle is taking place through the federal courts. At the heart of the matter is the U.S. Supreme Court's infamous "commercial speech doctrine." Interpreting this doctrine, the 7th U.S. Circuit Court of Appeals recently concluded that the First Amendment is no defense when a highly marketable celebrity like Jordan is angry with you. 

Never thank Michael Jordan without his permission

The saga started in late 2009, when Sports Illustrated sold a commemorative issue celebrating Jordan's career and Hall of Fame induction. Time Inc., the magazine's publisher, offered the Chicago-based supermarket chain Jewel-Osco a free full-page ad in exchange for selling the issue in its stores. As befitted the subject, the ad took the form of a congratulatory message: "Jewel-Osco salutes [Jordan] on his many accomplishments as we honor a fellow Chicagoan who was 'just around the corner' for so many years."

Jordan promptly responded to Jewel-Osco's neighborly congratulations with a lawsuit. He claimed the Jewel-Osco ad violated his "right of publicity" under Illinois law and constituted false advertising under state and federal law. In Jordan's mind, the ad—which featured generic red-and-white sneakers with Jordan's jersey number, 23, on them—unfairly appropriated his image for commercial purposes, namely promoting Jewel-Osco, and affected the value of his personal brand. He demanded $5 million in compensation plus punitive damages, which can be tripled under the trademark-governing Lanham Act. And for good measure, Jordan sued a Jewel-Osco competitor who also ran a congratulatory ad in the same Sports Illustrated issue.

In February 2012, U.S. District Judge Gary Feinerman ruled that Jewel-Osco's ad was "noncommercial speech" entitled to full protection under the First Amendment. Feinerman rejected Jordan's argument that because the ad featured the Jewel-Osco logo and invoked the supermarket's national advertising slogan—"Good things are just around the corner"—it was proposing a "commercial transaction." Feinerman said that even a person "with the benefit of multiple layers of green eyeshades" could not read an invitation to buy in the congratulatory text of Jewel-Osco's message. The ad was clearly part of a larger magazine package intended to celebrate Jordan, and the use of Jewel-Osco's name and slogan was simply "the most effective way to identify Jewel as the speaker" of its particular message.

The 7th Circuit didn't see it that way. In a February 19, 2014, opinion, Circuit Judge Diane S. Sykes concluded that Jewel-Osco's message was "a form of image advertising aimed at promoting the Jewel-Osco brand." That made it "commercial speech," which is entitled to a "lesser degree of constitutional protection" than noncommercial speech. Sykes returned the case to Judge Feinerman with instructions to let Jordan continue his lawsuit.

The nonsensical commercial speech doctrine

The First Amendment itself makes no distinction between "commercial" and "noncommercial" speech. It was the Supreme Court, back in 1942, that "plucked the commercial speech doctrine out of thin air," according to Chief Judge Alex Kozinski of the 9th Circuit Court of Appeals and attorney Stuart Banner. Kozinski has long been one of the leading judicial critics of the commercial speech doctrine. Another is Supreme Court Justice Clarence Thomas, who wrote in a 1996 concurring opinion, "I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech."

Nonetheless, most federal judges continue to believe there is such a thing as commercial speech that must remain segregated from noncommercial speech at all costs. The problem is that it's nearly impossible to figure out which is which. The Supreme Court has attempted to fashion various tests over the years, but this has only added to the confusion. As Kozinski and Banner observed, "If you think carefully enough, you can find a commercial aspect to almost any First Amendment case." The commercial speech doctrine thus provides a convenient constitutional end-run for the government to censor any speech it dislikes.

While commercial speech segregation is often justified under the pretext of shielding consumers from false or misleading advertising, the censorship often affects completely truthful statements. For example, the Justice Thomas quote above came from a 1996 case (Liquormart Inc. et al. v. Rhode Island et al.) where the state of Rhode Island had banned the advertising of liquor prices by retailers. The state's express motive was to prevent customers from learning about lower prices, and thus discourage them from purchasing and consuming alcohol. The Supreme Court ultimately rejected Rhode Island's actions, but the majority did so only after applying its complicated formula for deciding when such censorship should be allowed.

Giving fame a First Amendment veto?

The whole point of the First Amendment is to prevent the government from playing referee in questions of speech or expression. Yet the commercial speech doctrine requires judges to ascertain whether a speaker's motives are sufficiently noncommercial to warrant protection.

In the Jordan case, Judge Sykes decided Jewel-Osco's ad was not protected speech because it wasn't altruistic enough; to her, the ad constituted an insidious form of "image advertising." Sykes went so far to suggest there could be no First Amendment protection for any speech by a business that so much as mentioned a famous celebrity: "There is a world of difference between an ad congratulating a local community group and an ad congratulating a famous athlete. Both ads will generate goodwill for the advertiser. But an ad congratulating a famous athlete can only be understood as a promotional device for the advertiser. Unlike a community group, the athlete needs no gratuitous promotion and his identity has commercial value."

Sykes has this backwards. The only reason Jordan's "identity has commercial value" is that thousands of businesses—most of them media outlets—spent decades promoting his name and accomplishments to the public. Sure, some of these businesses paid Jordan for his endorsement, but the majority did not. Publications such as Sports Illustrated that covered Jordan for decades did not require his permission to write stories. And Time Inc. is hardly a charity; it publishes magazines to attract subscribers and advertisers. Despite these terrible commercial motives, Jordan still benefited from the increased profile and good will.

In addition to the commercial speech doctrine, the legislative invention of new forms of intellectual property—such as the Illinois right of publicity cited in Jordan's lawsuit—create further incentives for courts to carve out more and more First Amendment exceptions. Even Sykes admitted, "there is no judicial consensus on how to resolve conflicts between intellectual property rights and free speech rights." But why is there any conflict to begin with? Free speech should not be subject to veto just because it offends the ego of the second greatest basketball player of all time (sorry, Mike, but Bill Russell will always be the best).

NEXT: Noah Berlatsky on Identity Politics and the Security State

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Didn’t realize Jordan was such a whiny little bitch.

    1. You never read “The Jordan Rules” then.

    2. It’s worse than you can imagine, Prolefeed.

      Jordan’s greatness on the court is rivaled only by his pettiness off the court.

      You may have heard that as a sophomore in high school, Jordan was cut from his high school varsity team. At the time, Jordan was 5’10” and the guy who made the cut was 6’7″.

      At Jordan’s Hall of Fame inductance speech, he gave a subtle dig at his old high school coach who nowadays cannot hold a job due to mental illness. Decades after the fact, Jordan still holds a grudge against his old coach.

      Sports Illustrated wrote about this incident several years ago.

      1. Plenty of big winners are complete little bitches. The reason they are driven to win is insecurity and a desire to be able to gloat over those they’ve defeated. Usually you see it in really short guys (like Harlan Ellison) but I suppose at the time Jordan was “short” compared to the guy who made the team. Never underestimate the vicious bitterness and envy (and subsequent nastiness) of the Short Man.

        1. Good points, Epi.

          I’ve lived in Chicagoland for 20+ years and Jordan was worshipped in the 90’s.

          It’s hard to accept that he is such a dick, but the word has gotten out. He is no longer worshipped.

          1. I suppose if Jordan was a well-adjusted, happy person he might not have been driven to be such a spectacular success on the job, and no one would know or remember this happy non-entity.

        2. Kasparov being a complete bitch after losing to Big Blue comes to my mind.

          And BTW, Ellison is fucking way over-rated. I doubt he will be remembered at all in 50 years other than for writing that Star Trek episode.

          1. Yeah, it’s fine to think that Ellison is way overrated, but if you think no one will know his name in 50 years, you are completely delusional.

            1. I’m open to the possibility that some people will still cherish the film adaption of A Dog and his Boy, much like FoE will cling to his love of shaky-cam to his dying days.

              1. DON’T TALK SHIT ABOUT DON JOHNSON AND BLOOD

          2. Kasparov was bitching because he thinks that he was cheated in that match and he was probably correct.

            1. And Dick Cheney was probably involved in the 9/11 attacks.

              Kasparov was typical of precocious sheltered winners in that he lacked any sort of humility and turned into a whiny little bitch when he lost by trying to trick the program and his tactics backfired.

              1. He won one match, lost the other, against an opponent that could prepare for him and only him. K was still playing tourneys. Meh on the Deep Blue mystique.

              2. Actually it had a lot more to do with IBM mysteriously destroying the program after the second match (the one k lost) I think that his accusation, that he was facing multiple computers, rather than one, is quite credible.

          3. You doubt that a guy who has won about 11 Hugos, 3 Nebulas, 4 Bram Stokers, 4 Writers Guild of America awards, 2 Silver Pen awards, and a whole heap of other awards will even be remembered in fifty years? Uh, sure, whatever you say. (Not to mention that some of his early work is already almost 50 years old and is still well-remembered…)

            1. What are those? Candy bars? You nerds need to get out more.
              Nobody knows what an Ellison is now, much less 50 minutes from now.

      2. You know what?

        If I got cut from my high school team but went on to become the greatest player ever, I’d never let my high school coach live it down, either.

        I would be delighted to mention it on all manner of occasions.

        I don’t see the problem here.

        1. Well, no offence, Fluffy, but if someone is still obsessing over some retardedly minor event in high school, that person is, frankly, pathetic. Even if they are one of the greatest basketball players of all time. You can be successful and still be pathetically petty and childish and insecure at the same time. Look at half of Hollywood and all of politics.

          1. Fluffy, he didn’t get cut from the high school team, he got cut from the varsity. He still played JV and got quite good while doing so.

            He became so good that people arrived early just to see him play in the JV game.

            Also, as I said above, the guy who got the last spot on the varsity team was 6’7″ tall. Jordan was only 5’10” at the beginning of his sophomore year. What choice would you have made as coach?

            As Epi says, it’s pathetic to still hold a grudge over something that happened over 30 years ago especially when you have reached the pinnacle of success. Especially when all neutral observers agree that the coach made the right call.

          2. and Jordan could have used it as one those “it motivated me to work my ass off” stories that are legion in sports. Lots of guys do quite well AFTER being told they’re not up to snuff. None of them but MJ, apparently, harbors a grudge over it; most say it drove them to become what they became.

        2. You can hold a grudge if you want, Fluffy, but why the fuck would you want to hurt yourself like that?

          People fuck up all the time — cut them slack, or at least don’t make it YOUR problem by being angry about their screwups.

  2. OT: the great Walter Russell Mead does it once again with another brilliant skewering of the western so-called “elites”.

    1. This is the same ‘great Walter Russell Mead who championed the Iraq War, probably the second biggest federal government boondoggle of recent years?

      That you find him great says a lot about why we do not see eye to eye and your upsetness about my criticism of conservatism.

      1. Mead is a slightly-center-of-left democrat, you ignoramus. And plenty of democrats supported the Iraq War in the early going.

        1. Should read “slightly left of center”.

        2. If you are a left of center warmongerer that would also explain things.

          1. Hey Bo, we know what you think about conservatives and anyone who doesn’t parse libertarians the way you do. What do you think about what is in the OP?

  3. The First Amendment itself makes no distinction between “commercial” and “noncommercial” speech. It was the Supreme Court, back in 1942, that “plucked the commercial speech doctrine out of thin air,” according to Chief Judge Alex Kozinski of the 9th Circuit Court of Appeals and attorney Stuart Banner. Kozinski has long been one of the leading judicial critics of the commercial speech doctrine.

    I can name a dozen doctrines plucked out of thin air by the Nazgul in order to allow their party to disregard the Constitution. Good on Kozinski and Thomas.

    1. Yep, the branch of government that many libertarians look to protect liberty has an almost unbroken record of consistently and permanently reducing it.

  4. Hey Mike, when the Times puts your picture on the front page to sell newspapers, do they pay you?

    Asshole!

    1. I can give Jordan a tiny bit of leeway simply because he was probably swarmed by leeches and hangers-on trying to profit off his persona. I can’t do the same for the court, which should know better.

      1. You don’t think the Justices are swarmed by leeches and hangers-on trying to profit off their personas? Are you kidding? They’re the stars of the legal world. Interning for one is like being Michael Bay’s personal assistant, probably.

        1. Yes, clerking for a Justice is a huge deal for one entering a legal career.

    2. Funny, I clicked on this link only because it mentioned MJ. Now I’m forwarding it to him just so that he can add everybody here to his lawsuit list.

  5. “Free speech should not be subject to veto just because it offends the ego of the second greatest basketball player of all time ”

    This ignores how tough of an issue this can be. If the grocery store had, without authorization, just printed a picture of Jordan grinning with a photoshopped bag of the chain’s groceries in his hand should Jordan get no cause of action? It would still be the speech of the grocery store at issue.

    1. There obviously does come a point where the use of a celebrity to endorse your product without any consent or actual endorsement by the person in question rises to the level of fraud, but this isn’t even close.

      1. I should mention, it doesn’t *have* to be a celebrity either – it would equally be fraud to say that I was endorsing some company I never heard of. Celebrities just happen to be the more relevant group. I mean, nobody’s gonna put my mug in their ad to sell their wares. For a few reasons.

      2. Right. The speech “Michael Jordan likes my supermarket!” is fraudulent, if you have no agreement with Jordan.

        “My supermarket likes Michael Jordan!” however, requires no assistance from Jordan to be true.

        It is reasonable to give Jordan input over the former statement, but not the latter.

        1. And if Michael Jordan ever shopped at a supermarket and someone took a picture of him doing that, it shouldn’t be an actionable offense to show that picture if it isn’t accompanied by words implying that Jordan endorses the store (other than the marketplace endorsement of shopping there sometimes).

          1. Are the words a quote?

          2. It’s legal to take a photo of anyone, but it’s illegal to use it commercially without a release. So it doesn’t matter whether you say they endorse it or not.

            1. My point wasn’t about what the current government law says, it was about what a libertarian legal system would uphold.

              Under such a system, an actual unphotoshopped picture could be placed in an ad if it didn’t defraud customers. “Michael Jordan has shopped here” isn’t fraud under a libertarian NAP rule — “Michael Jordan endorses this store” is.

      3. I am not sure it isn’t even close. There seems to me to be a continuum between ‘Michael Jordan shops here and loves it’ to putting Jordan’s image on an advertisement for your store. I agree the latter seems much better, but I do not know where the exact line is to be drawn across that continuum. In defamation for example one does not always need to show some explicit defamatory statement, some innuendo and implication is, and should be, considered defamatory.

        1. Not only did they not use Jordan’s image (the ad was linked in the article and, as the article describes, shows a pair of non-Nike-Air-Jordan shoes with Jordan’s former jersey number on them), they didn’t say or implied he shopper there either. The full text reads:

          After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan’s elevation in the Basketball Hall of Fame was never in doubt! Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was “just around the corner” for so many years.

          I don’t care what standard you use or what lens you view that through, it ain’t an implication of any endorsement by Jordan of their store.

          1. Many advertisements that have approved endorsements do not have an explicit claim of ‘Michael Jordan endorses X’ on them. They show the celebrity’s image in with that of the business, product or service.

            1. Many advertisements that have approved endorsements do not have an explicit claim of ‘Michael Jordan endorses X’ on them.

              Which means absolutely nothing. Those advertisers, in point of fact, do have Michael Jordan’s endorsement, and he and they can work out whatever way of expressing or not expressing that they wish. That there exist endorsed advertisements without explicit endorsements doesn’t mean that the absence of an explicit endorsement implies an endorsement. Not even you are this stupid.

              They show the celebrity’s image in with that of the business, product or service.

              Click the fucking link retard. Again: Jordan’s image is not used in the advertisement. That’s 3 times now you’ve been corrected, so stop going back to the fucking well.

        2. So when a newspaper puts Jordan on the front page to sell newspapers, he can sue them?

          Please.

    2. I think the reverse question is much more apt.

      Let’s say Bill Clinton comes into my hamburger joint and eats 27 of my signature menu item, all the while telling me how much he loves them.

      On what possible basis can you justify restraining me from publicizing this true fact?

      In your photoshopping example, the speech is at least false. But what about when it’s true?

      “I control my brand, so you can’t tell people true facts like the story of how much I love your hamburgers!”

      It’s nonsense, and it exposes just how much the commercial speech doctrine offends the 1st.

      1. This. Until speech rises to the level of deception/fraud, keep your hands off of it. If it rises to deception/fraud, fuck you, pay me.

      2. Once you say that if the speech is false the government can intervene have you not given up the idea of ‘freedom of speech’ in the sense tat you concede some other ‘societal’ or individual value can trump it?

        1. Libel/fraud and free speech can’t coexist in Bo’s universe.

          1. Perhaps you would care to explain how they do in yours? Do you want to argue they do not restrict some speech (albeit false speech)?

            1. You’re actually perfectly entitled to lie your ass off as well, to the extent it doesn’t violate the rights of anyone else. Fraud is misrepresentation and does violate the rights of someone else. Libertarians often use the Non-Aggression Principle to determine when such a violation of another person’s rights has taken place.

              1. My point is that once you say speech can be restricted to prevent fraud you are essentially creating a regulation of speech. You just disagree with others as to what is an infringement on rights that would justify such a restriction.

                In a literal sense the non-aggression principle does not strike me as helpful here either.

                1. Riiiight, like how if we say it’s okay to outlaw rape we are essentially creating a regulation of free association.

                  Or how if we say it’s okay to outlaw non-defensive shooting we are essentially creating a regulation of the right to bear arms.

                  God you’re a fucking joke.

                  In a literal sense the non-aggression principle does not strike me as helpful here either.

                  That’s because, in the literal sense, you’re an abject retard. Fraud and coercion are understood to constitute “aggression” by every interpretation of the non-aggression principle every put forward.

                  1. I know fraud is usually included under the NAP, but uneasily in my opinion. I mean, do you really think most people would include spoken or written words as ‘aggression?’

                    Your analogies are actually quite wonderful, for my side of the argument, as they echo exactly what people who argue for speech restrictions always say: “No right is absolute, they all have limits and restrictions” and then they make some analogy like you are making.

                    1. If you google the definition of aggression you get:

                      “hostile or violent behavior or attitudes toward another; readiness to attack or confront.
                      “his chin was jutting with aggression”

                      synonyms: hostility, aggressiveness, belligerence, bellicosity, force, violence;”

                      If you think most people would recognize words, even if false or fraudulent, under that concept you are fooling yourself.

                      This does not mean I do not think Libertopia can not deal with fraud (and maybe defamation). I think they deal with voluntariness which any liberty loving society should protect and promote.

                    2. hostile or violent behavior or attitudes toward another; readiness to attack or confront.

                      Define “hostile” and “violent”, then keep in mind the nature of negative rights and you might actually get this figured out.

                    3. “vi?o?lent
                      /?v?(?)l?nt/
                      adjective

                      adjective: violent
                      1. using or involving physical force intended to hurt, damage, or kill someone or something”

                      Again, if you think words fall in there that is pretty hard to buy.

                    4. Notably, you provide a snippet of the full definition and leave off “hostile” entirely. Here, let’s see if this helps:

                      Full Definition of HOSTILE
                      1
                      a : of or relating to an enemy
                      b : marked by malevolence : having or showing unfriendly feelings
                      c : openly opposed or resisting

                      d (1) : not hospitable (2) : having an intimidating, antagonistic, or offensive nature

                      Full Definition of VIOLENT
                      1
                      : marked by extreme force or sudden intense activity
                      2
                      a : notably furious or vehement

                      b : extreme, intense
                      3
                      : caused by force : not natural

                      Now let’s keep in mind from earlier what is a negative right: (ncpa.org/pub/what-is-classical-liberalism)

                      Could you almost see a working definition of “aggression” in this context that might include defrauding, deceiving, or coercing someone? If not, it’s not really worth discussing this issue with you.

                    5. No snippet from me, if you simply type the word aggression or violent into google and press return you will get the definitions, in whole, in a box atop of the links provided. Try it.

                      And your ‘hostile’ is just laughable. The ‘readiness to attack’ part indicates that we are not just talking about ‘unfriendliness.’ I do not think even to save yourself in this argument you want to try to work ‘unfriendliness’ into the NAP!

                      Ditto for ‘vehement and furious.’

                    6. they echo exactly what people who argue for speech restrictions always say: “No right is absolute, they all have limits and restrictions” and then they make some analogy like you are making.

                      Presuming that all limits and restrictions are the same and equally valid, you would be approaching a point. That you think acknowledging that you don’t have a right to violate the rights of others is somehow a “gotcha!” for libertarian philosophy just shows how pathetically ignorant (at best) or stupid (at worst) you are. At least try to shoot for some novelty – we hear this argument from Tony at least twice a week.

                2. My point is that once you say speech murder can be restricted to prevent fraud self-defense you are essentially creating a regulation of speech murder. You just disagree with others as to what is an infringement on rights that would justify such a restriction.

                  1. The fact that you think you can replace speech with murder says something about your argument I think.

                    1. The fact that you think you can replace speech with murder says something about your argument I think.

                      The fact that you ignore the point, the differentiation between self-defense and murder shows why you are such a disingenuous troll.

                    2. OK Snark, what do you think is ‘the point?’ Don’t troll me, tell me.

                    3. The fact that you think you can replace speech with murder says something about your argument I think.

                      It says I have a consistent view of rights that you are thoroughly incapable of comprehending.

                      Actually though, you’re not nearly this stupid. You’re just being a contrary cunt for its own sake because you’re a troll. And I’m tired of feeding you. Have a nice day.

                    4. I am sorry you have not thought much about this issue and did not mean to upset you so much by making you do so.

                3. “…you say speech can be restricted to prevent…”

                  I don’t think that is what they are saying. They are saying that once fraud has been committed the defrauded party can seek remedy. Otherwise, they have to suck it up.

                  C’mon Bo, that is not a subtle difference.

            2. Libel/fraud arent free speech so there is no conflict in banning them. It puts no strain on free speech rights.

              1. How are libel and fraud not speech? They involve spoken or written words.

                You have just decided that some speech, namely false and defamatory, does not get protection under your conception of free speech. I do not see how that is different than any proposed restriction of speech, which invariably argues that some form of speech is dangerous or violates a conception of rights and therefore should not receive protection under free speech.

                1. I do not see how that is different than any proposed restriction of speech, which invariably argues that some form of speech is dangerous or violates a conception of rights

                  Dangerous != violation of rights, at least not inherently.

                  And if your conception of rights includes the entire pantheon of positive rights, you can base any restriction of anything on a violation of them. When we say “violation of rights”, clearly we are talking about the libertarian conception of negative rights. If you’re saying that the libertarian conception of rights is arbitrary or nor more valid than any other, yeah, that’s pretty well the case. You have to work backwards from a working definition of “rights” before you can decide what is a violation of them. A key difference between negative rights and others is that violations of negative rights actually harm another person, rather than failing to provide for them in some way. For more on the difference between positive and negative rights that apparently so eludes you, I recommend the following reading:

                  http://www.ncpa.org/pub/what-i…..liberalism

                  1. Do not worry, I am having no trouble with negative versus positive rights, because nearly everyone who pushes for a speech restriction points to a negative rights infringement, usually a danger to safety or the harming of what they see as an individual’s negative right to be free from speech violating that right.

                    What I am saying is there is the idea of ‘free speech’ meaning that a person should be free to speak whatever. From that most people, including libertarians, say ‘wait a minute, there are some forms of literal speech that infringe people’s rights, and so we should be able to restrict those.’ When we do that we are doing exactly what everyone who wants to restrict free speech does, the only difference is that the rights we would infringe speech to restrict would be different ones than the rights others would.

                    1. You keep using the word “restrict” where you should be using the word “define”.

                      For me that decision is simple: a right for person A can never violate a right for person B. Rights do not conflict.

                      When they appear to, one of the rights is being misdefined. But the right isnt being resticted, as it never existed in the first place.

                    2. Your negation of dissonance arrives at a high price: reality and the common meaning of words. Suing someone for the words they said about you or arresting them for the words they told you about their product are restrictions that punish certain spoken or written words. You can say those words do not deserve protection, but then of course you are saying what every proposed restriction on speech rests upon.

                    3. You can say those words do not deserve protection, but then of course you are saying what every proposed restriction on speech rests upon.

                      Again, your language is telling. Rather than discussing what words rise to the level of violating another’s rights and deserve punishment, we are now discussing which words are permissible for protection BY the government (rather than FROM it).

                      This is a pretty juvenile discussion even for you.

                    4. We are talking about libel and fraud which you have explicitly can be the subject of government coercion, hence my use of the word ‘protection’-from that government coercion.

                    5. you are saying what every proposed restriction on speech rests upon.

                      As I said somewhere else, so?

                      The tool isnt the problem, its the application.

                      You are making a similar argument to gun banners. Yes, guns can be used for evil, but it aint guns that are the problem.

                      Distinguishing between speech and free speech isnt the problem, its what speech you use it against that is the problem.

                    6. What you come to is this: for robc free speech means the right to speak freely, unless you speak in a way that robc thinks violates someone’s rights or engages in speech which is ‘bad speech.’

                      And that is exactly what every supporter of a speech restriction says and is saying, just replace ‘robc’ with that person’s name.

                    7. For the third time, so?

                      Answer the fucking question!

                    8. Also, bullshit, on the last part.

                      You should have put a period after rights and deleted everything starting with the or.

                    9. For you what makes the speech an infringement is that it has this false, damaging nature, such speech is condemnatory or ‘bad’ for you and open to restriction.

                    10. I am having no trouble with negative versus positive rights, because nearly everyone who pushes for a speech restriction points to a negative rights infringement, usually a danger to safety or the harming of what they see as an individual’s negative right to be free from speech violating that right.

                      Lol. You defend your ignorance by defining it. A negative right by definition cannot place an obligation on another person. It’s the difference between the right to bear arms (which implies no obligation on another person) and, say, the “right” to health insurance (which obligates another person to provide it). Aside from immediate threats of violence and fraud, there’s no speech restrictions that are ever defended on the basis of a negative right – they are defended on the basis of positive rights, like the right not to be offended, or the right not to be insulted, or the right not to be made to look stupid, etc etc.

                      the only difference is that the rights we would infringe speech to restrict would be different ones than the rights others would.

                      Yeah, that’s kinda the key, and it’s true of literally every right as well. Again, that you think this is a novel observation or isn’t understood and accommodated in libertarian philosophy is an embarrassing reflection of your understanding of libertarian philosophy.

                    11. “Aside from immediate threats of violence and fraud, there’s no speech restrictions that are ever defended on the basis of a negative right-”

                      Almost all speech restrictions are pushed with the argument that the speech will harm someone’s right to be free of something. Recent restrictions on depictions of media violence, or ‘fighting words’ or pornography, are pushed based on the argument that they lead to violence. You want to say ‘oh, but I would only restrict speech that involves more immediate violence.’ That’s not true of course, because you support restrictions on speech that can not remotely be said to involve violence (libel and fraud), but even if it were you are just differing with these people about how immediate or directly the speech is connected to the SAME NEGATIVE RIGHT, the right to be free from physical violence.

                    12. Almost all speech restrictions are pushed with the argument that the speech will harm someone’s right to be free of something.

                      Which is not what defines a negative right.

                      That’s not true of course, because you support restrictions on speech that can not remotely be said to involve violence (libel and fraud),

                      I explicitly made clear that those were unrelated and different things, both violations of (different) rights, but nice try at false equivalence.

                      you are just differing with these people about how immediate or directly the speech is connected to the SAME NEGATIVE RIGHT, the right to be free from physical violence.

                      Except that theoretical and actual physical violence are not the same thing, and most speech restrictions aren’t justified on those grounds anyway. Restrictions on porn or campaign finance laws, say, are not connected to any implicit or explicit threat of violence. Keep pounding that strawman though.

                      Here again:

                      Presuming that all limits and restrictions are the same and equally valid, you would be approaching a point.

                      As I said, your false equivalence troll bait is cute and all, but I’m done feeding you.

                    13. “Which is not what defines a negative right.”

                      Really, negative rights are not defined by a moral claim to be free from something? Now I am concerned about whether you know about negative rights.

                      ” explicitly made clear that those were unrelated and different things, both violations of (different) rights”

                      So now you are not claiming libel and fraud involve aggression? Or aggression is not violence (which would make your reliance on the whole quoting the ‘furious’ part of the definition of violence in order to work it into aggression pretty goofy)?

                      “Restrictions on porn…are not connected to any implicit or explicit threat of violence”

                      Er, yes they are, they are based on claims of fanning sexual violence.

                      “but I’m done feeding you.”

                      What is this, the third time you have said this in this very conversation?

                    14. What is this, the third time you have said this in this very conversation?

                      Your counting is as impeccable as your logic.

                2. How are libel and fraud not speech? They involve spoken or written words.

                  How is self-defense not murder? They both involve the taking of life.

                  1. Jesus, people, libel (at least; fraud is a different matter, though maybe it shouldn’t be) are not restricted. You are free to say lies all day about someone. If someone can prove you damaged them with what you said, then you pay…in civil court. You are paying for the damages, not the speech, and can’t be charged with a criminal offense. If that seems kind of retarded, it is, but that’s the inherent retardation of trying to codify the complexity of human interaction into rules written on paper.

                    1. “You are paying for the damages, not the speech”

                      That is silly, because the lying is just as much an element of the cause of action that must be proved as the damages is. No damages, no suit, but no lying, no suit either.

                    2. “You are paying for the damages, not the speech”

                      That is silly, because the lying is just as much an element of the cause of action that must be proved as the damages is. No damages, no suit, but no lying, no suit either.

                      Wha?

                      You just agreed with Epi’s point. And that’s good, because Epi absolutely nailed it above. And it certainly isn’t silly.

                      You are not paying for the speech. You are paying for the damages the false speech caused.

                    3. You need to read what I said, especially this part: No damages, no suit, but no lying, no suit either. The lying, which is speech, is as necessary for a suit as damages.

                    4. You are an idiot. YES, the lying is required, But you aren’t being punished for it. You are punished for hurting someone with your free speech, not simply for saying it.

                      And we are done, because you are once again being an asshole.

                    5. You tend to find any extended disagreement with you to constitute being an a**hole, but I can tell you in the world it is people that come to that conclusion that are more so considered to be.

                    6. Mein Idiotisch Kind
                      Wo weilest du?

                  2. Your analogy falters on the distinction between murder and killing.

                    You can not deny libel and fraud are literally speech. You want to say they are speech falling outside of free speech protections, just like justifiable killings are killings that fall outside of murder prohibitions. That is fine, but do not pretend that is not what every person proposing a speech restriction is saying.

                3. How are libel and fraud not speech?

                  Reread my post again and see what key word you left out.

                  Not all speech is free speech.

                  1. “Not all speech is free speech.”

                    Quite a lot of speech banners would agree with that statement wholeheartedly.

                    1. Quite a lot of speech banners would agree with that statement wholeheartedly.

                      So?

                      Im sure I agree with Hitler on a thing or two also.

                4. The fraud is not simply the lying, it’s what the lying facilitates: a transaction other than the one the customer agreed to. It’s one thing to lie about a product, it’s another to sell it under false pretenses. It is the sale itself that is fraudulent rather than the lie. No sale, no fraud.

                  1. I do not see how you disentangle the two. In fraud statutes the actus reus is nearly always the misrepresentation, which nearly always involves speech.

                    1. I do not see how you disentangle the two. In fraud statutes the actus reus is nearly always the misrepresentation, which nearly always involves speech.

                      Except it’s not the speech that makes it fraud, it’s the sale. I can lie about my computer or my house to high heavens and that’s not illegal. But if I try to SELL them under false pretenses, that is. It’s a form of theft.

                      The lie is necessary to prove fraud, but they’re not being punished for saying things that aren’t true, they’re being punished for making a transaction other than the one the buyer agreed to.

                    2. darius, quite literally, the misrepresentation is just as much a necessary element of the crime of fraud as the transaction. Yes, you can lie about your house and computer to the high heavens and only need fear of prosecution if you do that and sell it, but it is just as true that you can sell your house and computer as much as you want and only need fear prosecution for it if you speak or write something false. You can not disentangle the two: you are being punished for a sale that involves certain speech.

                    3. Bo, saying it’s an “element” does not make the punishment about that specifically.

                      but it is just as true that you can sell your house and computer as much as you want and only need fear prosecution for it if you speak or write something false.

                      Only in the case that you lied to them are you stealing from them. THEY ACTIONABLE WRONG IS MAKING A TRANSACTION THEY DID NOT AGREE TO. The difference between the fraud and the normal sale is that in the normal sale they’re getting what they agreed to buy, and in the fraud they AREN’T getting what they agreed to buy, hence theft.

                      You can not disentangle the two

                      I just did, and did in my previous post as well. It’s an unagreed-to transaction that makes the difference, not the lie itself.

                    4. See, you actually agree with my position, which was that fraud is not wrong in a libertarian sense because it is a violation of the NAP, but because it undercuts voluntariness. But the voluntariness is undercut by speech. I do not see your example or elucidation as disentangling them at all: they are not getting what they agreed to buy because of a misrepresentation, namely speech. Otherwise, no cause of action.

                      Take this example: you are under the mistaken belief that the cow I am selling you is pregnant, and I know you are so, but I make no declaration either way, and you buy the cow for more than you would. You did not buy what you agreed to (a pregnant cow), and actually at common law the contract could be found invalid, but you could not sue me or prosecute me for fraud. Why? What is missing? One thing: speech by me, the misrepresentation.

                  2. I tried to make a similar point about libel above, darius. No damages, no libel. The speech is always free.

                    1. I tried to make a similar point about libel above, darius. No damages, no libel. The speech is always free.

                      I have to disagree with libel though, as the lie there isn’t facilitating anything that’s otherwise illegal. It’s not facilitating aggression or theft or trespassing. It’s people’s reactions to a lie that make it libel. If those reactions include aggression or theft or libel then you might (might; I’m no legal expert) have a legal case against them on criminal grounds. Otherwise I can’t say it’s similar to fraud, as it’s punishing the person for how other people react to a falsehood. Which doesn’t fall into any of the normal categories of rights-infringement.

                5. You have just decided that some speech, namely false and defamatory, does not get protection under your conception of free speech. I do not see how that is different than any proposed restriction of speech, which invariably argues that some form of speech is dangerous or violates a conception of rights and therefore should not receive protection under free speech.

                  When libel/slander/fraud you are not being punished for the speech. The speech is still free. You are being punished for the damage caused by the untruthful speech.

                  1. Again, that is an untenable point. In every cause of action for libel the false or reckless speech is a necessary element which must be proven as surely as the damages.

                    1. When I punch you in the nose, I don’t get punished for swinging my arm. I get punished for breaking your nose.

                      Idiot!

                      slander
                      noun
                      noun slander
                      1. the action or crime of making a false spoken statement

                      damaging to a person’s reputation

                      .

                      You can lie all you want. There is free speech. You may not harm me with your lie. If you harm me with your lie, you will be punished for harming me, NOT for the lie.

                      The speech itself is not restricted.

                    2. “making a false spoken statement”

                      Again, this is literally the action element of the cause of action.

                      Take the tort of conversion, where you can sue me for damages involved when taking your stuff. According to your logic taking someone’s stuff is not wrong, only taking it and damaging it is.

                    3. What harm? Reputational? That’s not normally considered an infringement of rights. A lie doesn’t attack someone, it doesn’t steal from someone. All it does is (possibly) sway someone to believe something that isn’t true.

                      If your employer fires you for something that is true you have no recourse against the person who told your employer, but if it’s a lie you do? There’s “damage” in either case, why is only the case with the lie actionable?

                    4. So Bo, I have a situation for you. I have an 2 computers that look the same on the outside, but are qualitatively different. I have CompA on my table, and CompB under the table. A customer comes up and agrees to buy the computer on my table. When they go to get their money, I remove CompA from my table and put CompB on my table. When they come back and hand me their money, I give them CompB. This is fraud. It is also theft. Point to me the actionable speech.

                    5. There is no speech, but I am not sure what that proves other than that there can be fraud without speech. I am not sure how that helps us with whether punishing cases involving fraudulent speech is punishing speech.

                    6. there can be fraud without speech

                      Yes Bo, this shows that fraud ISN’T dependent on speech, which was the claim you made in support of your claim that they’re punishing speech. By demonstrating that fraud does not require speech, I’m showing that fraud ISN’T the speech, it’s the TRANSACTION. The fraud isn’t the lie, it’s failing to come through on a deal you made. Fluffy made a post at the end of this thread to that effect.

                    7. When I say speech is punished in fraud I mean in cases where speech is involved (I was originally thinking of the common law tort of ‘mispresentation’ which is often called ‘fraud’ and went with the latter because I thought most people would be more familiar with it).

                      I don’t think you can say the punishable thing is ‘failing to come through on a deal you made,’ otherwise any significant breach of contract would be a fraud, right?

                      Here is another critical thing, in my opinion: most fraud statutes punish fraud even when a fraudulent sale is only attempted. How would that fit with your idea that it is the transaction, not the misrepresentation, that is punished?

                    8. If your employer fires you for something that is true you have no recourse against the person who told your employer, but if it’s a lie you do? There’s “damage” in either case, why is only the case with the lie actionable?

                      Well using your situation, say you got fired because a coworker reported you stealing from a customer who left their purse on the counter.

                      If you did steal, losing your job is justified. If you did not, then your coworker’s lie has cost you salary in the short term, and negatively impacted your job search in the long term.

                    9. [fucked up the formatting, should have looked like this]

                      When I punch you in the nose, I don’t get punished for swinging my arm. I get punished for breaking your nose.

                      Idiot!

                      slander
                      noun
                      noun slander
                      1. the action or crime of making a false spoken statement damaging to a person’s reputation.

                      You can lie all you want. There is free speech. You may not harm me with your lie. If you harm me with your lie, you will be punished for harming me, NOT for the lie.

                      The speech itself is not restricted.

                    10. FdA, my comment below your previous one has a question on that (starting with “What harm? Reputational?”).

                    11. Sorry, I pushed the wrong button on Reasonable (and it derailed my point to a degree).

                    12. are we really debating the notion that rights come with responsibilities? I have the right to a firearm; I do not, however, have the right to discharge it as I see fit, particularly in the direction of people going about their business.

                      Likewise with speech; fraud and slander are actionable. And as we’ve seen with Phil Robertson, Alec Baldwin, the Dixie Chicks, ad nauseum, the right to speak contains neither a right that the listener agree nor freedom from consequences.

        2. Fraud is not free speech because it is not speech at all.

          Rather it is intentionally failing to deliver on a contractual agreement.

          If I tell you that I will come to your party, knowing that I will not do so – no fraud has occurred. However, if I take a deposit to cater your party, and have no intention of doing so, then I have defrauded you.

          In that example, it is the taking the deposit, with no intention of fulfilling the contract, that is fraudulent. Not the promise to attend the party.

      3. Great point. Photoshopping someone for a fake endorsement is something like libeling them by photoshopping them having sex with Nancy Pelosi and trying to pass it off as real.

        1. Yep, robc wins the article.

          SC should have a test for libel/fraud and keep it at that, not differentiate between commercial and non-commercial speech.

          1. Well this comment was directed at Fluffy’s comment but robc certainly makes some great points.

          2. I would prefer my victory come for the Simpson’s quote below.

            1. I used to hate the smell of your smelly feet. Now, it’s the smell of victory.

  6. We will pine for the days that IP law was merely dialed up to 11. Mozart in the public domain? Someone like Saul Zaentz ought to be getting royalties off of that.

  7. Surprised the IP flame war hasn’t started yet.

    1. Flame wars just want to be free.

    2. See that ship over there? They’re re-broadcasting Major League Baseball with implied oral consent, not express written consent?or so the legend goes.

  8. I feel like you are simplifying the case more than is warranted. Suppose Jordan had been shopping in Jewel and someone had snapped a picture. Could Jewel then make an ad campaign around the picture and the tag line “Michael Jordan Shops in Jewel and so should you”? Its obviously not fraud or slander. If there is no distinction between commercial and non-commercial speech, then what’s the problem? Perhaps the issue is more nuanced than this article makes it seem.

    I’m not sure what the right answer is in this case, but ultimately, Jewel was paying for the ad in order to get people to shop in Jewel. Its wasn’t an act of charity. It was a “we like Mike, just like you do. So shop at Jewel.” That’s an advertisement, not a public service announcement. I’m not sure why – if Jewel is using Michael Jordan’s name to increase sales, Michael Jordan isn’t entitled to some compensation.

    If the Klu Klux Klan decided to run the same ad, would Jordan have any right to say he doesn’t want his name associated with them? Or is anyone allowed to use his name in an ad without permission?

    This doesn’t change the fact that Michael Jordan seems to be a jerk. But I’m not sure where it says jerks aren’t entitled to get paid for their endorsements just like nice people.

    1. Or is anyone allowed to use his name in an ad without permission?

      Yes, anyone should be entitled to use his name in any manner they wish so long as they are not misrepresenting his words. Scroll up. This was discussed at length.

  9. If there is no distinction between commercial and non-commercial speech, then what’s the problem?

    There isnt one.

    If I see MJ shopping in a store, am I allowed to mention it publicly? Why should it matter if I own the store or not?

    And, yes, I would allow the KKK to run the same ad.

    1. Like I always say, “Just cause Hitler says the world is a sphere doesn’t mean it’s not…”

  10. Too bad this thread got Botarded.

    I hated Jordan cause DETROIT PISTONS, BITCH! in the 80’s/90’s. (anyone remember Scotty “Also A Bitch” Pippen’s ‘migraines’ during the playoffs? we called those ‘Mahorn and Laimbeer’)

    I liked him when he started a Superbike effort in AMA – been a dedicated team owner since then. Just pulled out b/c the AMA sucks – talking about going to World Superbike or even MotoGP.

    Now I has to hate him again cause he’s back to being a little bitch. I haz a sad 🙁 Of course, except for my cousin, everything from Chicago sucks, ultimately.

    1. Too bad indeed, what it needed was more about what Basketball teams you liked and disliked twenty-thirty years ago and how you like Superbike. I mean, have you heard of Facebook or Twitter? If you want to broadcast your various likes and dislikes to strangers they might be better suited for it.

      1. What makes you think that the minutiae of what constitutes free speech is more valid on a weekend thread than the rivalry between Detroit and Chicago? I don’t see how you can disentangle rhetoric and good-natured banter, especially on a weekend thread. Do you feel this sort of speech should be restricted?

        1. He was in the middle of getting lots of attention and doesn’t want an off-topic comment to distract from that.

          1. I’m sorry you don’t understand the subject of topic and did not mean to upset you by writing like a disingenuous cunt.

        2. Did not read Alamnian’s post I replied to, eh Snark?

          1. Are you are referring to the post by the poster who goes by the handle Almanian!? Please clarify as words have meaning. Without clear definitions of terms we are really lost in a sea of dystopian non-logic.

            1. What would be lost in a sea of dystopian logic would be a person joking about my complaint about Almanian’s comment without realizing mine was a response to his complaint about my comments, or maybe a person claiming I responded to Almanian because I did not want him to ‘divert attention from me’ when he initially brought me up.

              Look, I get it, paleo and conservatives like you and Snark do not like my general ribbing of your kind, but when you flail around like this it is a bit sadly obvious.

              1. I am Snark Plissken. I’m not sure who you are addressing by “you”, perhaps the voices in your head? I am disappointed by your need to use ad homs, perhaps you would like to address my original points listed above. If you find it uncomfortable to argue in a logical fashion please say so. Do you have a problem making it clear to whom you are addressing and why?

                1. I am Snark Plissken

                  I thought you were dead.

    2. I once knew a girl from Chicago who did so quite expertly.

      So it’s not all bad.

  11. Libel/fraud arent free speech so there is no conflict in banning them. It puts no strain on free speech rights.

    I have a problem with the notion of libel not being permissible free speech. You can express your opinion of someone, and be factually wrong, and not IMO violate the NAP.

    It’s when you knowingly and intentionally attempt to defraud someone that you violate their rights. But, I don’t agree that you have a “right” to your reputation, because that is the same as saying you have the “right” to control what thoughts other people have about you. If someone uses their right to free speech to express their negative opinion about you, your recourse should be to exercise your own right to free speech and point out that they are factually wrong.

    1. I probably shouldnt have included libel, as its trickier. And not criminal anyway.

      1. My point was that if you draw a Venn diagram of libel and fraud, you get some overlap where something is both simultaneously. All fraud is an NAP violation, whereas I don’t feel libel is unless it contains an element of fraud, in which case the remedy is to go after the fraudulent element.

        Nonfraudulent libel — expressing an opinion with no attempt to defraud someone — is IMO not an NAP violation.

      2. Sure it can be. What if you bear false witness that lands someone in jail?

        What if someone tells the biggest guy in the room you raped his wife and he beats the shit out of you because of it?

        What if someone lies to your boss and gets you fired?

        What if you lie and say that glass is full of gatorade and not antifreeze?

        Lies can be criminal as well as fraud.

        All of our rights come with responsibility, something that should be very clear by now to libertarians. Or perhaps there are just too many libertines around here.

  12. You have just decided that some speech, namely false and defamatory, does not get protection under your conception of free speech

    I won’t speak to libel (because I don’t really support the libel tort) but let’s talk about fraud.

    In fraud, the issue is not the speech. It’s the commercial transaction (based on a false representation) that follows the speech.

    I can claim to have a cure for cancer all I want. SAYING that I have a cure for cancer is not an issue.

    It only becomes an issue if I say I have a cure for cancer, take your money on that basis, and then fail to deliver the cure for cancer. It’s the failure to deliver that constitutes the fraud, and not the speech.

    In this case, if I falsely claim that Michael Jordan loves my store, Michael Jordan isn’t even the one with a cause of action, in my view. The victimized party is anyone who is a Michael Jordan fan and was tricked into patronizing my store based on my false statement.

    I’ll give Jordan the tiniest little cause of action, by letting him at least argue that my false statement about his preference diminishes the value of true statements about his preferences. So to that limited extent, he’s got an actionable harm. But not because the speech is false – because of the series of commercial transactions that follow the false speech.

    1. I think you nailed it with this post and the post under it. Well put.

  13. Yes, you can lie about your house and computer to the high heavens and only need fear of prosecution if you do that and sell it, but it is just as true that you can sell your house and computer as much as you want and only need fear prosecution for it if you speak or write something false. You can not disentangle the two: you are being punished for a sale that involves certain speech.

    I’m sorry, but this is nonsensical.

    I’m being punished for failure to deliver.

    Promising to sell a certain type of computer and delivering a different type of computer is, fundamentally, no different from promising to sell a certain type of computer and then grabbing the person’s cash and running away with it.

    In either case, you have failed to perform and are a thief.

    The content of the speech is not the issue. It’s what you did or failed to do after you had the buyer’s money in your hands.

    1. THIS. Very well put, much better than what I said.

    2. fluffy, your definition would make any failure of contract into fraud. That does not sound right, does it? What makes what most people consider ‘fraud’ different than other failures to deliver on a transaction is the misrepresentation, which (usually) involves speech.

      1. Any failure of contract undertaken knowingly is fraud, yes.

        1. But your logic applies equally to the case where there was a bona fide intention to deliver but delivery nonetheless did not happen due to circumstances beyond the delivering party’s control.

          If I promise to hand wash your car prior to your business event the same night, on a hot day for $10, and just as I’m about to start, I collapse from heat exhaustion, and spend the rest of the day in the hospital, have I committed fraud?

          1. Arguably you have if you refuse to return the money and claim to have washed the car.

    3. Without the speech — and specifically without the content of the speech, ie the promise to deliver — there is no failure to deliver and there is no fraud. So, you’re being punished for speech.

      1. The promise to deliver does not occur until you take the buyer’s money.

        That’s the act that creates the fraud.

        Arguing otherwise is like claiming that laws against mugging prevent free speech, because of the part where the mugger tells you to hand over your wallet.

        1. Accepting money by itself does not imply a promise to deliver. If someone walks up to you and hands you $20 on the street, does that mean you have to give them $20 worth of some goods or services in return?

          If you take the first amendment literally, it does protect threats as well as perjury and fraud.

  14. For what it is worth, and I do not pretend like this solves the matter definitively, but our legal system has long considered laws against fraud to be restrictions on speech (albeit traditionally permissible). From U.S. v. Stevens (2010):

    “From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382?383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 127 (1991) ( Kennedy, J. , concurring in judgment)?including obscenity, Roth v. United States , 354 U. S. 476, 483 (1957) , defamation, Beauharnais v. Illinois , 343 U. S. 250, 254?255 (1952) , fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748, 771 (1976) , incitement, Brandenburg v. Ohio , 395 U. S. 444, 447?449 (1969) ( per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co. , 336 U. S. 490, 498 (1949) ?are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire , 315 U. S. 568, 571?572 (1942) .

    1. Dude, I don’t care.

      You can find 1000 textbook citations denouncing Lochner, too. It would mean nothing to me.

  15. Bo Cara fucks goats.

    Ta daaaaah! Free speech.

  16. The commercial speech doctrine is stupid, but it’s hard to blame SCOTUS for going through mental gymnastics to apply an amendment that, taken literally, would have absurd consequences when applied to the states (as was not intended by the authors of it).

    If you look at the first amendment literally it protects death threats and perjury, for starters.

    1. This is actually the salient point. The correct way to handle this sort of conundrum would be for the court to kick it back to the legislature, requiring them to amend the constitution if they wish to carve out an exception to free speech – or any other intrusion of the government into any of the rights of the people.

      As a practical matter we’ve chosen the more expedient route of letting the judiciary decide when the constitution applies and when it is only implied. I’ve always loudly advocated requiring the government to get that constitutional amendment if they want an additional power, but there is probably an argument to be made that if the constitution worked that way the complicated nest of amendments trimming right after right would very quickly obliterate all protections of the rights of the individual.

      I suppose it all comes down to the people. If we don’t demand that our government be restricted to the minimum power possible, we get what we deserve.

    2. Except for the part where it “does not protect libelous or fraudulent speech”
      which is part of the Anti-federalist papers and recommended by Thomas Jefferson

  17. Swing and a miss. I thought this would be an actual article against the commercial speech distinction, but it’s just another faux-libertarian salvo against property. 2/10 would not moment

  18. Jordan has six trophies and all the adulation in the world in the fake world. But in the real world – where Bat-Man lives – he’s, looks like, a petty, gambling degenerate. I remember reading about the high school coach and was flabbergasted at his retarded arrogance.

    He’s not Fruit of the Loom material datsfirshure.

  19. My God, Bo, you are tiresome.

    Yes, libertarians believe it is permissible to restrict certain speech. Libertarians believe it is permissible to restrict many actions. Libertarians are libertines. What separates libertarianism from opposing philosophies are the standards libertarianism uses to decide when restriction is permissible. This isn’t news to anyone here, and in pointing it out you aren’t making an interesting point.

  20. Dude is jsut gonna have to slam dunk it one time man.

    http://www.Anon-Works.com

  21. I guess Obama ain’t the only man from Chi town who hates the constitution.
    “Liberty for me not for thee” should be their new city motto

  22. Sure MJ can play this “I will sue you if you mention me card”…but besides someone possibly going bankrupt–his legacy will forever be tarnished. Greatest of all time on the basketball court? Yes, probably.
    Greatest asshat of all time off the court? Yes, probably.

    1. He really only loses face to ppl who can think.

      The vast majority of Americans will see this as a speedbump that is insignificant compared to his celebrity and social proof.

      This is what drives public opinion, not being a dick or criminal.

  23. “That made it “commercial speech,” which is entitled to a “lesser degree of constitutional protection” than noncommercial speech.”

    Weird, my copy of the first amendment is missing that clause. I need to get the unabridged version, I guess:

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

  24. Start working at home with Google! Just work for few hours and have more time with friends and family. I earn up to $500 per week. It’s a great work at home opportunity. I can’t believe how easy it was once I tried it out. Linked here http://www.Pow6.com

  25. I would be delighted to mention it on all manner of occasions.

Please to post comments

Comments are closed.