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Vladimir_M comments on Schelling fences on slippery slopes - Less Wrong
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Comments (189)
I wonder how many people would use this example nowadays if they knew that it comes from a WW1-era U.S. Supreme Court opinion upholding a ten year prison sentence for sedition against an anti-war activist -- whose crime was to distribute pamphlets arguing that military conscription is unconstitutional under the 13th Amendment, which prohibits "involuntary servitude."
(By the way, speaking of slippery slopes, the following year the same court upheld another ten year conviction for a speech whose content was carefully crafted to remain within the bounds of the sedition laws, but which was still judged to be illegal on the grounds of intent and indirect implication.)
As an interesting side note, the grimly ironic pinnacle of these American WW1-era sedition laws was the ten-year sentence (another one!) against a certain Robert Goldstein for defying the censorship of his film about the American Revolution. The film was deemed to be seditious on the theory that it incited hostility towards Britain, a war ally.
You may be correct, but the speaker in that case was probably referencing the Italian Hall Disaster, a genuine precedent. A rationalist can't just chose to ignore a data point like just because they don't like the way it's normally used.
No,but he point is that what appear to be good examples are often used when they are inappropriate, so you should be wary of agreeing more with someone's position just because they say their case is analogous.
Wow. The 'fire' thing doesn't even fit well as an analogy in that context. Your country scares me!
My country?! I'm not American. I haven't even been to the U.S. in several years.
(That said, you're Australian, right? I've definitely seen stuff written on LW that is technically illegal in Victoria -- google for "serious contempt for, or revulsion or severe ridicule," with the quotes.)
The fire analogy must be understood in the context of the legal test of "clear and present danger" that the court was upholding. The theory is that just as the shouting "fire" in a theater creates a clear and present danger of a stampede in which people get hurt, so does the anti-war agitation create a clear and present danger of subverting the war effort, in this case by inciting resistance to conscription.
Of course, you may reply that this "clear and present danger" stuff can be stretched this way without limit, but that is the point. (By the way, in U.S. jurisprudence, this standard has in the meantime been superseded by a much clearer one of imminent lawless action, which, whatever its overall merits and faults, has shown in practice to provide for a very strong Schelling point.)
My apologies. I assumed too much from your evident awareness of US internal politics.
Without at all claiming that examples don't exist it isn't technical illegality that concerns me but actual instances of punishments, along the lines of the two cases of 10 year incarceration.
As you have illustrated, things being legal or otherwise is not too important. Far more important is the inclination of the judge (and the surrounding political incentives) to punish any given behavior. Both of the cases you cite illustrate how easily laws can be ignored by introducing a fully general excuse along the lines of "except when it is really politically expedient to do so!"
The Victorian law is one of those laws whose real meaning is quite different from its formal one. Read literally, it is a sweeping law that criminalizes anyone who says anything unkind about any religion. (It's literally criminal to "behav[e] in a way that encourages... revulsion or ridicule of another person, because of the other person's... religion," or to "encourage[]... severe ridicule of... [a] class of persons, because of their... religion.") Yet in practice, of course, it's tacitly clear what kinds of people should watch their mouths or else fear prosecution under this law, and who can in turn safely ignore it. (Generally, throughout the Western world, with the U.S. as a lone exception, modern speech restrictions commonly have this form, providing effectively a broad mandate for ideological censorship.)
Note also that a century ago people were tougher and had less to lose, so that much more severe penalties were necessary to get them in line. Also, a criminal or even just an arrest record of any sort is by itself a far more severe and permanent penalty for a respectable person nowadays than back then. Even defending yourself successfully in court will require a ruinous expense for everyone but the very rich, and this cost has gone up way out of proportion with income. So, while nobody in the West is facing ten-year sentences for speech these days, I don't think the chilling effects are much less severe than in the WW1-era U.S.
Edit: By the way, none of these Americans (as far as I know) actually served a full ten-year sentence. They were all pardoned in the early 1920s by Warren Harding under his policy of "return to normalcy."
I take pleasure in reading this. Sanity is out there somewhere!
Yes, but it certainly hasn't won out when you look at the way Woodrow Wilson and Warren Harding are remembered nowadays...
All else being equal (taking only the potential influence of these particular actions on popularity) that isn't encouraging. I don't know enough about US politics to know whether dislike of Harding is at all related to him having a nature such that he would make these (desirable) decisions.
How they're viewed has little to do with these decisions. Harding is seen as a weak President who was manipulated by those around him and who allowed corruption to flourish in his administration. The most famous example of this was The Teapot Dome Scandal. He may also, much like his successor Coolidge, have become associated with the boom that preceded the Great Depression.
Wilson is, unfairly I think, rewarded for leading America during WWI. This is in spite of the fact that he promised to keep America out of the war and managed to lose the peace that followed. Besides upholding sedition laws he did a number of other thoroughly un-liberal things.
That is true, literally speaking. The point, however, is that the qualities that got Wilson celebrated and Harding forgotten or despised in the century since then were actually the same ones that led the former to fill jails with political prisoners and the latter to consider it unacceptable to preside over a country whose jails are filled with political prisoners. Besides, compared to the way things were done under Wilson, holding these petty corruption scandals as a heavy sin against Harding shows a complete lack of perspective.
But here we are getting into a historical and ideological discussion for which this forum is probably not a good place.
Yes and no. In the last several decades there has certainly been a troubling trend of disregard for free speech in civil law - i.e. "cyberbullying" kinds of things, where people are now basically able to sue because their feelings got hurt. And you're absolutely correct about the cost of litigation having a strong multiplier effect on the "chillingness" of such suits. But in criminal law, things are definitely MUCH better today than they were in the WW1 era. For one thing we now have a de facto Shelling fence around punishment of speech which is explicitly political in nature (like protesting the draft).
I heard somewhere that for the civil rights protesters of the 60s, going to jail had a very different meaning than it does for protester types today. Respectability was a much bigger deal then than now - those people dressed up in suits to protest and be arrested. At the time, the only marginally well-known precedent for being arrested for a good cause was Thoreau. I know people now who are proud of their protest-related arrest records, but that wasn't really a thing before the 60s.
I believe the theory was that he was promoting illegal activity, i.e., draft dodging.
That era, and those rulings, are pretty widely regarded as the low point of American first amendment jurisprudence. Things have rebounded significantly since then, and, as Vladimir points out, those cases have long since been superseded as binding case law.
Edit: spelling.
I'm following posts up the chain to 2012 but I think I'll comment on this anyway:
I don't think it's correct to say "its content was crafted to remain within the bounds of the laws, but was judged to be illegal on the grounds of intent and indirect implication". The law doesn't say "using X phrase is illegal, and if you don't use X phrase, you're in the clear". It actually uses the word "intent" to describe what is illegal; intent and implication is inherently a part of the law, and someone who is convicted based on intent and implication isn't convicted despite the law, he's convicted according to the law.
Furthermore, even if it didn't say "intent", lots of laws are interpreted according to intent and implication. If a bank robbery law says you can't threaten to kill someone to get money, and the bank robber points a loaded gun at the bank teller, and the teller gives him money without him having to say a word, he doesn't get to say "the law requies a threat and I didn't say anything, so there's no threat"--he made an implicit threat.
Wow, man, awesome kudos for this link. The slope indeed slips the other way; once you allow the supreme court to make fire in the theatre analogies, you can start prosecuting people for 'sediction', which is in direct contradiction with the principle of free speech as necessary for the liberty of a free state.