An imposition on Digi and/or Kit
Kasia February 23rd, 2009
Or Dale Price, if you happen to swing by, but I think it more likely that Digi or Kit will see this…
Would one of our resident lawyers please be so kind as to provide a brief (as in short, not as in a legal brief) response in the combox of why I, as an individual actor, am within my rights to ban commenters if I see fit? And why doing so would not, in fact, be an infringement of the hypothetical bannee’s Constitutional right to free speech?
Remember: this blog is my Internet home. There are limits to what I will tolerate on it, just as there are limits to what I will tolerate in my home.
Kit, Digi, or Dale: your assistance (not to be confused with formal legal advice) would be most definitely appreciated. If you don’t have time, that’s OK too – I am comfortable with my position.
Very simple, Kasia, dearest – you are NOT the STATE!
The State, aka the Government, aka the Makers and Enforcers of the Law, are bound by the First Amendment, As it clearly states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Not “Kasia shall make no law . . .” because you have no Constitutional authority for making laws.
A hypothetical (because lawyers love them so!): let’s say someone was making comments to the effect of, ooh, say, “Bee-yotch, I’m going to kill you!” You ban those comments, then you call the police. The police arrest the miscreant and he says, “But what about my First Amendment rights?” His beef is with the State, in arresting him and hopefully charging him with something – not you. And he may find that whereas the First Amendment is broad, it is not ABSOLUTE. So people do have restraining orders placed against them for things they have said. To quote a famous justice whose name I am sure Kit would remember, as she is so much smarter than me, “You can’t yell ‘Fire!” in a crowded theater.”
Does that answer your question?
Oliver Wendell Holmes was the (chief) justice.
Thank you most kindly, Steph – that was more or less what I remembered, but the person who has (finally) been banned has never believed me when I told him that doing so would not be a First Amendment violation. I haz no cred. So I figured a lawyer might have cred where I didn’t.
Merci mille fois.
U haz cred. U know cheef justice!
(BTW, this is not your insufferable cousin of which you speak, is it?)
Individuals have the right to free speech. They don’t have the right to use somebody else’s property as a platform for free speech.
An example to think of is a newspaper. You have the freedom of the press, as well, but that doesn’t mean you can force the Detroit News to print an article you write.
Another example is Freedom of Religion. Somebody can practice Buddhism, but that doesn’t mean they have the right to exercise that freedom in a Catholic Church. (Similarly, a city council choosing to have a nativity displayed on city property isn’t violating the Freedom of Religion clause, since they aren’t Congress and aren’t passing any laws limiting or requiring the practice of a religion.)
Art is considered a form of free speech. That doesn’t mean an artist can use your house as a canvas against your will. If they do, it’s vandalism, not free speech.
It’s funny how many people get confused by the First Amendment. Stephanie has it right…the Government can’t limit speech, but you can if it’s within your own domain.
I’ve run into the same argument time and time again at a message board I help moderate, and have had to explain it numerous times. You are under no obligation to provide a platform for others to exercise their free speech. If they have something they want to say to the world, they can start their own blog.
So feel no guilt over banning people from your blog. Long live Empress Kasia, dictatorial monarch of The Clam Rampant.
The same.
I dislike banning people on principle, but I can only let someone walk into my home and spit on the floor so many times before I just have to say “You’re not welcome here anymore,” ya know?
ROFL! Thanks, Matt!
- Empress Kasia
As far as legal precedence, I would like to submit that there’s a difference between free speech and judicial moderation. For example, in a court of law, the witness may say something which may then be deemed inappropriate, and the judge can rule to have it stricken from the record. Similarly, you are judging something which someone has freely stated, deeming it inappropriate and striking it from the record. If one does these things too often, they can be ejected from proceedings due to contempt of court. So, too, can you eject someone from your “proceedings” on similar legal grounds. Thus speaks the Great Jaibee.
Sheesh – I miss a day or two and I can’t expound or expand on what Stephanie said because she said it so well…so I’ll cut to the chase:
It’s your [dang]* blog, you’re a private citizen, and you can block anyone, any [dang] time. Trolls have no “First Amendment rights” within the domain of the Empress Clam. Any questions from the troll in question? Good. Didn’t think so.
* At the request of our little Therese, I am doing my level best to stop cussing for Lent. So far I think I owe her about $3 in quarters…on Day One.
Kasia, I’m no First Amendment lawyer – although I took a full year of 1st Amendment law classes and the LSAT when I thought I might WANT to become a communications lawyer. But allow me to pen your missive:
“Dear (INSERT NAME),
The First Amendment protects private citizens from censorship by the government. There is NO absolute right to free speech, particularly when one’s speech impinges on another private citizen. I’m a private citizen. If you want to annoy me or bore me, I don’t have to give you a forum for it.
But let’s say that some idiot wants to PRETEND that my blog is a taxpayer-funded, ad-free forum. Even then, the courts are on my side.
In The United States v. American Library Association, Inc. (2003), the Supreme Court ruled that blocking access to websites does not constitute a violation of the First Amendment. So Congress could require libraries to put filters to protect children and other patrons from porn, etc. As a blog-owner, I’m within my rights – yes, MY rights – to ban annoying, idle, or harrassing posts.
Sincerely,
Clam S. Ter, esquire”
Kasia, just out of curiosity: How many times DO you allow guests to spit on your floor?
LOL! MissJean, you I would let do it at least oh…two or three times?
A slightly more serious answer to a clearly facetious question: it depends on how much I like the person, and/or how closely related to me they are, and/or how much money I owe them.