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I think it's great to have this debate. In fact if we want to get to the truth, debate is what gets us there quicker. The truth, of course, is not easy to define. The only way we can get close to the truth is to hear all perspectives. And this dynamic alone makes censorship totally unacceptable and a travesty to life because seeking the truth is like oxygen to humans. But we must also question the validity of government itself. It's difficult when one sees out of that framework to hear others solidly mired in it. What is government for - what's its purpose? How many want it? Is there any legitimacy to forcing others to do as they think is right? This is barring threats or physical harm. Verbal harm cannot be protected - that is something one has to learn for themselves and arm themselves. The reason being that it would cause all sorts of dystopian permutations if we didn't take personal responsibility for others being insulted. The ones who are insulted though have as much opportunity to use their free speech to counter or respond to insults or "defamation". If we had no censorship, the world would be a much safer place. It is always better to know what someone is thinking than not know. By ensuring speech is free, sociopaths and psychopaths would have to go back into their closet.

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The expressions “category of unprotected speech” and “speech that is excluded from the First Amendment” are expressions that facilitate and promote the oppression of expression. Opponents of the freedom of speech prefer such vague expressions, in part, because they are imprecise. Such opponents abuse such expressions just as they previously abused Justice Holmes’s re-statement of John Stuart Mill's Harm Principle (“clear and present danger”). Justice Holmes articulated that concept to provide a method for thinking. Instead, lawyers and judges abused it as a mere label, an excuse to refrain from thinking.

Speaking of thinking and how oppression of expression is promoted by the use of careless labels, the speech-conduct dichotomy is a similarly abused and abusive construct. The First Amendment, itself, clearly and emphatically precluded the pretense that expressive conduct was not meant to be protected by the First Amendment. Speech, and even more so the use of a printing press, necessarily is conduct. Words without conduct necessarily are not speech. They are thought. The freedom to think as we will is protected by the religion clauses. The freedom of communication (communicative conduct) is protected directly by the speech, press and petition clauses, and indirectly by the assembly clause.

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One fact that must be among the most material in any proceeding to punish, penalize, prohibit or restrict speech is that a public servant is (directly or indirectly) taking action regarding the rights and powers of sovereign citizens.

The process of law that is due is due to two crucial facts. First, a public servant is using powers of speech and conduct that were delegated to such public servant by sovereign citizens. Second, such public servant is acting against presumptions (required by our Constitution) about the freedom of speech of sovereign citizens. So all speech enjoys “constitutional protection,” as SCOTUS emphasized in New York Times Co. v. Sullivan.

The “constitutional protection” is in the Fifth and Fourteenth Amendments (due process of law and equal protection of laws). When we think about our freedom of speech and press, we should think not about the mere First Amendment or a mere "right," but but about the primary point of the entire original Constitution (the Preamble and every article) and every amendment in the Bill of Rights. But don't take my word for that. Take the words of SCOTUS justices and the words of the Founders and the Framers of the original Constitution, the Bill of Rights and the Reconstruction Amendments (XIII, XIV and XV), some highlights of which are in "A Tale of Two Sovereignties (or Two Tales of Sovereignty)" https://blackcollarcrime.substack.com/p/a-tale-of-two-sovereignties-or-two?r=30ufvh

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The reluctance of First Amendment lawyers to accept Ronnie’s point underscores some serious problems in how we lawyers have been trained to perform to a most peculiar tune. Some SCOTUS decisions are worth far more than others. One of the foremost among the former was New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

One self-evident truth that is ignored by those who think of “categories” of speech that are unprotected by our Constitution is that the law, not labels, govern. Our Fifth and Fourteenth Amendments say so: no person whatsoever may be deprived of life, liberty or property without due process of law. SCOTUS also said so—unanimously—with some choice expressions in the famous New York Times decision.

SCOTUS in multiple ways emphasized that all of “the various” (sometimes ingenious, sometimes not so ingenious) “formulae for the repression of expression” contrived by opponents of the freedom of speech and press “can claim no talismanic immunity from constitutional limitations. [Each effort to punish, penalize, preclude or restrict speech] must be measured by standards that satisfy the First Amendment.” SCOTUS even emphasized that SCOTUS was not (and courts cannot be) influenced by any mere label: “In deciding the [constitutional] question,” SCOTUS did not “give any more weight" than hot air to any “epithet” or “other ‘mere labels’ of [purported] law.”

The bottom line is as clear and categorical as the First and Fourteenth Amendments, themselves: “The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.’“ (New York Times quoting N.A.A.C.P. v. Button, 371 U.S. 415 (1963)).

A good way to understand the constitutional protections for speech is to think like a criminal. The Founders and the first Framers certainly thought like criminals (they essentially actually were criminals). One of the primary reasons they so often spoke of (and in the Bill of Rights they emphasized) the freedom of expression was to prevent or defeat punishment or penalty for speech that offended people in power. For hundreds of years, people in power viciously abused people for speech such as the Founders' because it purportedly was "seditious libel." So think like a criminal: no mere “category” of conduct is “unprotected” by the Sixth and Fourteenth Amendments. No mere “category” of speech is “unprotected” by the Fifth and Fourteenth (and maybe even the Sixth) Amendments.

Due process of law for either criminal prosecutions or civil penalties or punishment (or other restriction) of speech includes assigning the burden of proof and the quantum of evidence required to bear the burden. As SCOTUS emphasized in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), “the substantive law” identifies “proof or evidentiary requirements,” including “which facts are material,” i.e., “might affect the outcome” under “governing law.” In the civil context, SCOTUS precedent emphasized material facts, and “the First Amendment mandates a ‘clear and convincing’ standard” of proof.

In any criminal prosecution for speech, the government must prove each material fact beyond a reasonable doubt, and the speaker must be presumed innocent and the speech must be presumed free. In any civil proceeding to punish, penalize, prohibit or restrict any speech, the government (or other opponent of speech) must prove each material fact by clear and convincing evidence and any punishment, penalty, prohibition or restriction on speech must be presumed to be unconstitutional and speech must be presumed to be free.

Our Constitution, itself, compels the foregoing presumptions favoring speakers, so no purported presumption to the contrary could be controlling. SCOTUS in New York Times emphasized this principle, too: “The power to create presumptions is not a means of escape from constitutional restrictions.” It is not even possible that in either the civil or the criminal context, any category of speech can be “unprotected” or even be presumed to be “unprotected.”

An opponent of speech may choose to put speech into a particular “category,” but that should carry no more weight (against the Fifth, Sixth or Fourteenth Amendments) than putting criminal conduct into a particular category. No matter what the category, the government (or other opponent of speech) always must bear the burden of proof of each material fact by the requisite quantum of evidence, and the speaker and speech must be presumed innocent and free.

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Ronnie is so obviously right that it’s remarkable that he meets with any reluctance to accept his views. This discussion highlighted one reason for such reluctance: a lack of precision. As SCOTUS repeatedly admonished, “Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” N.A.A.C.P. v. Button, 371 U.S. 415 (1963). Too many people say types of speech are “unprotected by” or “excluded from” the First Amendment. They don't really mean what they say. For example, some mean that the First Amendment does not give speakers immunity for such speech. Protection means much more than mere immunity. It might help to think about this issue like a COVID or flu vaccine. A vaccine may afford significant protection without affording immunity. Or to borrow an analogy from Justice Ginsburg, an umbrella provides protection from precipitation, but it affords no immunity from the weather.

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