Article: No Harm, No Foul

Here’s a 2008 law review article I found that may be of interest to @prostasia and its community who may be legally-minded. It delves into the topic of various issues regarding free speech issues, including the obscenity doctrine.

Might be of interest to @terminus as well.

"Yet the Supreme Court has avoided explicitly justifying speech restrictions on
the basis of harm prevention. Rather, speech restrictions are evalu-ated in the context of judicial determinations about communicative or
expressive value. "

This is the part that troubles me. Justifying the prohibition of speech with with it’s "communicative or expressive value. " Or lack thereof in this case opens up a much much larger can of worms than these people realize.

Is this suggesting a person is entitled only to the right to productive speech? Useful speech? Speech which convey’s some synthetic meaning?

Is gibberish therefore unprotected speech? what about axioms, tautologies, or speech which is propositionally contradictory?

Should people then be thrown in jail for printing out pamphlets that say (p and ~ p)?

Speech isn’t speech because of it’s contents, but rather because of the process by which it is outwardly conveyed.


Don’t people in the U.S. get punished for talking about Jury Nullification?


If you’re a juror and you mention it during deliberations, it can get you and every other juror expelled from the case.

But if a unanimous jury silently agrees not to submit a guilty verdict, in spite of clear, objective, and concise evidence of the guilt of the accused, then that jury cannot be punished for submitting a “not guilty” verdict.

Of course, a judge can always reject a verdict and have the case re-tried if they have reason to suspect foul play. Such things wouldn’t count as “double jeopardy” because the case hadn’t been concluded yet.
But jury nullification isn’t necessarily foul play, even in the scenario I just described.

Like I said, it’s complicated.

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I was thinking more like people outside the court who hand out leaflets.

I don’t think so, but I could be wrong. It isn’t a crime to talk about it.

Jury nullification is one of those things that can swing both ways.
During the early days of Jim Crow, on occasion all-white juries would deliver a “not guilty” verdict if one of their “good ol’ boys” was on trial for the murder of a black man, in spite of very real evidence and even testimony which would prove guilt beyond the shadow of a reasonable doubt.


:white_check_mark: ‘To Kill a Mockingbird’ was partially based on Harper Lee’s recollections of her Father’s cases.

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I don’t think that is correct. An acquittal in the US is nearly absolute. The judge cannot reverse it, an appeals court can if there is proof of jury or judicial tampering. If the jury decides on their own to acquit, that’s that. What was done in those Jim Crow acquittals, was to bring federal charges of violating the victims civil rights.

That’s sort of the issue here. When it was ruled that child pornography was excluded from the First Amendment, that was done primarily out of a concern for children’s safety, not out of an ad hoc or post hoc value determination of the speech, hence why lolicon/shotacon is on the same tier of legality as adult pornography.

Excluding child pornography on the basis of harm was a valid, objective, easy-to-understand, and reasonable justification, mostly because it isn’t arbitrary.
If it depicts a real child engaged in sexual conduct, then it’s illegal. Simple as that.

Same logic applies to true threats of violence, incitement to imminent criminal action, and libel. All are objective in their definition, scope, and application.


Exactly, speech is speech, but speech can and oftentimes should be restricted based on a variety of tangible factors concerning its production and or capacity for undue harm.

What some courts have attempted to do instead, is circumvent the said criterion altogether by myopically and incoherently redefining speech, such that “speech” is not speech - and therefore can be restricted for no real reason and to no real ends.