For what it's worth, yelling fire in a crowded theater is First Amendment protected speech.

https://www.techdirt.com/2023/03/14/setting-1st-amendment-my...

I'm just stating facts.

https://www.popehat.com/p/the-first-amendment-isnt-absolute

This video was extremely disingenuous.

The video is educational. It uses an extreme scenario to make its point, but that's because it's being illustrative.

Okay, so maybe you don't believe a lawyer. Let's try a different lawyer that's more famous.

> So, there you have it: obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Throw in true threats - which was left out of this list for some reason - and child pornography, and you’ve got the categories. Note that the Court specifically identifies them as well-known and historic, not as in flux.

https://www.popehat.com/p/the-first-amendment-isnt-absolute

Sigh. Yes, it depends on context. Like everything.

Yet, what’s the point of pedantic digressions that distract and muddy rather than clarify and communicate?

You're specifically arguing that speech that harms is disallowed, and algorithms could be construed as harmful, so hey, let's not protect them with free speech.

These are legal matters, so pedantry is part of the equation. The popehat piece is specifically written to refute this entire line of argument: free speech has extremely specific carveouts, and the way you're arguing isn't in line with how that would be expanded. This is outlined very specifically in the Popehat piece.

This is in no way a pedantic digression: I'm pointing out a fundamental flaw in your proposal, and citing work by lawyers that describes that flaw in detail.

> we could reasonably categorize engagement algorithms with certain properties as harmful to people and not subject to first amendment protections

This is a hope, however I have not seen any effort that wasn't scuppered, until recently.

The social media bans are a lurch in that direction.

I could separate them out into different strands:

1) Society saying that the engagement algorithms is not what we want to have in our lives or the lives of our children

2) Problematic technical implementations, or benign technical implementations that invade privacy and support government gaining more powers over speech.

Any regulation shaping algorithms is perilously close to shaping speech. Now if you say algorithms are speech or editorial decisions that platforms have their own freedom to choose, then you essentially strip them of their protections.

This would force a form of moderation that would have most people up in arms on HN.

I fully admit, I am being rough in my cuts; the point I am attempting to make is that any decision to decide what constitutes protected and unprotected speech is going to be government interference.

It may even be likely that the firms such as Meta or Tik Tok would end up as untenable under such rules.

> Generally speaking, we deem various kinds of speech that harms people as NOT protected under the first amendment, and that kind of speech would not be protected here.

That is not a general principle. Consider the following: it is now illegal to say the word “election” because it would harm the President.

Yeah, we don't ban harmful speech, and we shouldn't. Harming people can be a legitimate and valuable consequence of speech.

We ban a subset of harmful speech with a direct link to clear harms, usually criminal.

Is that really what you think I said? It’s probably more productive to read with the goal to understand rather than the goal to misunderstand.

Yes, that’s how I read your comment. There are narrow circumstances but no general principle. To generalize from narrow circumstances is simply misguided, so I commented.

The exceptions you're listing are mostly real but much more narrow than you're thinking. Only threats of imminent violence are excepted; it's completely protected by the First Amendment to say things like "it's getting to a point where we might have to be violent" or "I would commit violence if suchandsuch were to happen to me", even if other people reasonably find those statements to be stressful and alarming. Similarly, while defamation as such is illegal, it's not defamatory to say something like "John is a stupid fool who can't be trusted", even if I know many people think he's smart and trustworthy and even if his reputation is ruined by my statement.

There's simply no general principle that speech which harms people can be restricted.

The case which originated the "yelling fire in a crowded theater" analogy, Schenk v. US, was overturned more than half a century ago. And in that case, the proverbial fire-yellers were socialists distributing pamphlets.