Yes I considered that when going through the details.
I agree that it is dangerous for judges and legislators to create exceptions to the constitution without special restrictions (such as the additional votes needed for a constitutional amendment for example).
At the same time I think it would be unwise for the first amendment to stand as it is. The constitution was meant to evolve with the changing times and, frankly, the current system for "evolving" it is extremely slow and cumbersome. Too much so.
A hundred years ago defamation was barely an issue. Worst case scenario you had to move to a different town a couple miles away and start over. In most cases you could just call a town hall and set the record straight. With the advent of motorized vehicles, radio, television, and now the internet, communities have become too big for the "set things straight at a town meeting" approach and plus the damage caused by defamation extends far outside our communities. And no, those who are being defamed can not use the same radio, tv, and internet to set the record straight. Defamation is now a MUCH more significant problem than it was before the industrial revolution.
Unfortunately over 90 years after it started becoming a serious problem the constitution still makes no allotment for it.
I think there should be a way to make minor amendments to the amendments expanding or limiting their function without overriding their *intended* function. Such should be more difficult that "the supreme court said this" or "48 out of 50 states passed laws agreeing to that" yet far easier than the current amendment process.
These are just some minor thoughts I've had. I've not really taken significant time to research the details so I acknowledge that I could be barking up the wrong tree. However... ultimately... I do not agree that defamation should be protected speech. Just as I do not believe child porn, perjury, blackmail, or threats should be protected speech.
You're right about hate speech though. I was reading a list of rulings regarding the First Amendment and saw it as on e and posted it without thinking or reading it thoroughly. Shame on me (seriously).
But yes... almost all amendments to the Constitution have exceptions. For one of the most notorious examples look up the relationship between martial law and habeas corpus.
"What if I did not know she had a gun pointed at him?"
If you can prove it then you couldn't have had intent to mislead. Case dismissed.
"What if I did know, but I was stating simple facts: "John slapped his wife across the face" - how can I be responsible for the conclusions other people draw from this statement?"
Then you were very negligent or stupid... but did not have intent... thus case dismissed. As for proving it... you don't have to. That's the fun thing about intent... the burden of proof is on the plaintiff.
"Litigating what people meant, felt, or intended is most often pointless. Intent is a pretty scary part of the law and very difficult to prove. Proving what someone was thinking - without them actually saying it - is not a good way to argue defamation."
The difficulty in proving intent is often used to keep the legal system from being abused. For example... murder charges all require that the state prove intent. Without intent the maximum charge is manslaughter. Intent applied here would help keep rich and powerful people from abusing the system as easily. Yes it would make it harder for a plaintiff to prove that he has suffered defamation in cases where he actually had... but not that difficult... after all intent is proven quite often in a great deal many murder cases every year. Look up "mens rea" for more info.
"I can see why there are laws for defamation that allow recourse when someone makes untrue statements (of course, the internet makes it easy and inexpensive to respond, so it could be argued that these laws are no longer necessary), but litigating true statements based on intent and context is going to be used far more to suppress speech than it will be used as recourse for harm due to defamation."
Everything done with the legal system will always be a double edged sword. So long as human beings are part of the legal process the potential for abuse will always exist. The important question is whether or not leaving an easily exploitable loop hole in defamation laws is worse than a couple extra "politician sues critic" lawsuits that typically go no where. The answer to that is not one I claim to have... hence why I'm playing devils advocate instead of claiming my point of view is the right one.
The day you lose your job and find yourself unable to get another one because some co-worker falsely accused you of sexual harassment I think you will be singing another tune.
The First Amendment has exceptions... hate speech and defamation among them. Unless I am mistaken defamation is typically held to include false or misleading statements made that have the capacity to harm an individual's reputation in some demonstrable way.
The key there is the "or misleading" part. The fact that it exists right next to "false" indicates the acknowledgment that a statement can be true and misleading at the same time.
The problem is that defamation is often miss used (as much of the legal system is these days) by the rich and powerful to quash the free speech of their critics.
Unfortunately in any system depending on the verdict of any number of individuals there will always be bad decisions made and the rich and powerful have the money and power needed to exploit that.
That is what is unclear about all this. Simply put there need to be exceptions to free speech to protect individuals from malicious attacks on their reputation but such exceptions can be exploited do to the inherent fallibility of human nature and its inevitable presence within the legal system. A double edged sword that must constantly be monitored lest it cut the heart out of our society yet can not be taken away lest some one else's sword cut the heart out of our society.
Say I tell people that John slapped his wife across the face in the course of an argument.
Lets assume for the sake of argument that this statement is entirely true. Now while I've said nothing untrue... the natural conclusion from my statement is that John is abusive to his wife which is *untrue.*
You see I left out the fact that John's wife had a gun pointed at him at the time and his clumsy attempts to knock it out of her hands resulted in him slapping her. No where did I lie but the conclusion from my statements is still both untrue and harmful to John. Correct me if I'm wrong but I remember "untrue" and "harmful" being the two cornerstones of the legal definition of defamation.
I dunno the details and how they apply to this case but the point I would like to make is that it is in fact possible for some one to intentionally harm some ones reputation in a dishonest way without making a single false statement. In such a case I would think intent would be the deciding factor. Were the (truthful) statements made with the intent to harm some ones reputation by misleading people.
Personally I would like to see some system in place for legally challenging such misleading statements. Our media in this country is practically built on such dishonest methods as this (telling only the part of the truth that results in the conclusions their viewers want). So long as such a system was carefully implemented (ha ha! i know right?) it could provide a means to put some honesty back into the media.
And if you think this isn't drawing them extra attention well you need to talk to our friend Mike here about a little thing he dubbed "the streisand effect." It's functional principles can be manipulated for gain in the hands of a smart man. SNL and Adult Swim will both get a spike in viewership from this... and some of those people will stick around for a while.
Bad PR is still good advertising... so long as you don't put swastikas on everything or some such.
Uhm... Mike... perhaps I'm wrong on this... but as a fellow Sprint data card user I took a great deal of interest in this when it all started.
I have a friend who works for a third-party Sprint retailer who did the legwork for me and says he was assured through official channels that all existing users of the service would continue to receive unlimited service assuming they did not cancel and then attempt to restart their service.
Again, this could be a lie told by sprint to a third party retailer. As an former employee of one such retailer I know it would certainly not be the first time. However, as I use mine for a significant amount of data (including torrent traffic and downloads of DVD Images (diagnostic boot disks and the like) I imagine I would have gone over this limit if it was there.
I certainly understand the principle of the matter, especially considering my data needs, but I think in this is more of a case of "if the service isn't what you want look elsewhere" rather than "they changed it on me after I signed a contract and now I'm stuck paying for a service that is no good to me."
And who picks the only two options we get every 4 years for president? Members of congress. And who picks the supreme court justices? The president.
When you think about it, we haven't really had a president that bucked the system since JFK... and he got assassinated. Conspiracy theories aside you have to note that it makes for a hell of a coincidence.
Every candidate in decades has been more of the same with the exception of Reagan... and only because he had the charisma and money to run whether the established parties wanted him to or not. Each one has had less of a back bone than the last. Each one has been more and more in line with his parties rhetoric. And the Supreme Court? Well go do a comparison of which judges were appointed by which presidents... tell me you don't notice a pattern.
Yes we have three branches, but the lines between those branches in continuing to get more and more blurry with each passing decade while at the same time the power of the legislative branch continues to grow by leaps and bounds.
Think about it. This is the greatest danger of our existing (psuedo-)two party system. Look closely and you can even see the steps both dominant parties have taken to make sure there aren't any more parties rising to power.
Because when the free version is not worth the effort the pay version becomes a better deal... even though it costs more.
There will always be pirates... just as there has always been pirates. However, there are more now than there used to be... which brings up the question: why?
Why is simple... in addition to it becoming easier to pirate games developers have become increasingly anti-consumer. Now in reality developers can't control whether or not it has become easier to pirate. They can try to make it hard again but thus far have met consistently with failure. So instead of trying to change the world around them this developer has chosen to change themselves.
In theory this should reduce, though not eliminate, piracy.
Nether the fact that the proposed ban is not for this purpose nor the fact that my post was long changes whether or not my facts are correct nor whether my analysis of their implications is valid.
And yes I can and did read the article. Regardless of what the ban is about it would achieve the same goal. As some one who actually is *mildly* intelligent I understand that a good thing achieved for the wrong reasons is still a good thing.
I won't deny that it would be more profitable for the various air travel companies if they didn't have to compete with cellphones on flights. It is certainly reasonable to think that one of the reasons, if not the main reason, they want this is just that, limiting their competition.
However, to say that cellphone interference being dangerous enough to warrant a federal ban is silly... might be stretching things a bit.
In a given plane, the data and instrumentation cables and all the panels and sensitive equipment is shielded. It is reasonable, *assuming* all planes are in perfect condition, to say that it is silly to think cellphones will interfere with the plane. A Boeing 747 has a maximum passenger allotment of 524 people. The new Airbus A380 can carry up to 853 passengers. That's a lot of lives depending on an assumption that, historically, has proven absurd.
Almost all of the major plane crashes involving large aircraft over the last 4 decades have been the result of maintenance issues with the aircraft. Damaged joints. Rusted structural supports. Leaky fuel lines. Improperly calibrated instrumentation. Faulty wiring. Etc. Historically speaking large passenger jets are poorly maintained. Not all of them. Not most of them. Not really even enough to say "some of them." It's really just a handful of them. Just 524-853 passengers worth roughly 2-3 times a decade. How's that for perspective?
Now let's say the year is 2014. An airbus that has been in service with 2007 is on a routine Trans-Atlantic flight from Dubai to New York. Unknown to the maintenance crews and the cabin crew and the pilots and the passengers on board a single cable carrying information from instrumentation at the rear of the plane has slowly been weakening over the 7 years of the planes service. As the plane passes over land for the last time until New York a business professional calls his wife to let her know he will be out of cellphone range for a while. The call is short and to the point and goes off without a hitch.
The Airbus continues on and makes it's flight across the Atlantic. However as it approaches the east coast of the states it gets caught in a fairly rough, but none the less manageable storm. The turbulence from which finally damages the shielding enough to expose the cable. This in and of itself does not pose an issue. However as the storm abates the passengers including our business professional looks out to see they are approaching land. Our business professional places his cellphone call to tell his wife he will be home soon. Again it is a short call and goes off without a hitch... however unknown to every one on board it also confuses the instrumentation. 30 minutes later all that is left of the plane and it's 800 some odd passengers is burning wreckage in the middle of a JFK Airport runway.
Is this improbable? Yes. But then so was what happened to Apollo 13. So was what happened in many of the accidents and crashes that have happened over the years. In almost each case the problem could have been avoided with rigorous maintenance and a refusal to send old decrepit planes back into service. But hey, 500 people here 800 people there, no big deal right?
If banning cellphones on planes prevents even one such accident, even if we never know about it and even if it gives the various air travel companies a monopoly, I say its worth it.
Oh and that's not even counting all the smaller aircraft that travel from smaller airports to larger ones in connecting flights. The maintenance and safety records for those are outright atrocious.
uhm... car enthusiasts. Any one that has ever sat in a Shelby Mustang as it rockets from a stand still to top speed. The opening scene for I Am Legend was like heroin for me. So yes there are people who like engine noise. Mostly on higher end cars... like a Lotus.
I recently (bout 6 months ago) built a computer to use as a workstation and server for a client. I'm aware that the server should have been a stand alone machine and I told the client this as well... as I had been telling him for years. Unfortunately this client had been using his server as a workstation for years without problem... except for his kids getting on it to play games and generally gunking it up with spyware.
So on their new server I installed Vista Business. At first the office worker, my client's wife, did not like it. However the computer remained rock solid stable and without spyware for the duration. She stopped complaining about it after about a week.
Recently they have attempted to do several new things with their server (streaming video to their website). As a result of using it as a workstation as well they had problems. I explained to the client that he really needed a separate machine for his wife to work on. He purchased a machine off of ebay running Windows XP (paid $150). It's a fine little machine for what she uses it for and I installed Firefox and Avast! AV to keep it clean. Two months in and she's all but begging me to convince Robert she needs Vista. She HATES XP now. I hear about it every time I come in to check progress on their new building.
*shrug* This combined with my own experiences and the mountain of misinformation I hear constantly repeated by people bashing vista tells me vista isn't nearly as bad as people make it out to be.
"- Third-party compatibility issues really are Microsoft's fault. Why was the API changed so drastically? Why is backward compatibility that hard?"
"- The artificial market created by making 6 different version with different featuresets confuses people, creates a support nightmare."
It was a requested feature. And it's 4 "editions." With various sub-versions for 64bit vs 32 bit machines and OEM vs Retail. Something like 16 versions total if you wanna get technical. Oh and I've had no problem supporting them. For 99.9% of problems the edition or version of vista is irrelevant, as the symptoms and solutions is the same. If you take a little time to learn the differences between editions and take a quick run to system properties to get that info the rest is cake.
"- It's a drastic change in price/cost with little to no day-today benefit"
Price didn't really change... XP Home = Vista Home for price. XP Pro = Vista Premium for price. If your looking to save some money and don't need the extra features you can get Vista Home Basic, the cheapest windows since windows 95, or if your a business with special needs you can get Vista Business.
"- It's a drastic change in requirements with little to no real day-to-day benefit"
Many of my clients like features like the indexing service. And while the requirements have gone up, the cost of a computer to run it is lower than it was at XP's launch. So it doesn't really matter that requirements are higher. You can get a Vista Ready computer for $400 from Dell and never have a problem with it being slow.
"- It's a drastic change in interface with little to no real day-to-day benefit."
Many of my clients like the new layout better. They find it faster and more intuitive to use. Personally so do I.
You know I heard people make the exact same argument for sticking with 98 when xp came out... and for 98 when 95 came out.
Oh and I'm a computer tech too. Have my own business in fact. On that note it seems you don't know much about what's going on in the computer world. For a computer to be listed as Vista Ready a computer has to have at least 1 GiB of RAM. A Vista Capable machine has to have 512 MiB of RAM. Any computer that does not have these specs is not allowed to have Vista markings on the computer... any OEM that did so was breaking Microsoft's licensing terms.
But hey, don't feel too bad. Most "computer techs" have no more idea what they are talking about than 10 year old Timmy Mathison from across the street. At least you aren't the only one passing himself off as knowledgeable.
It's not that "since there will always be thieves, it is pointless to spend any time, money, or effort defending against them."
The rule is that since there are so many of them... to the point that they actually outnumber the people who aren't thieves, and since they aren't really thieves since they are not stealing but rather (illegally) copying, and since there is no chance that the content providers will ever put the genie back in the bottle... it makes good business sense to embrace new business models that are not harmed by a trend that the content providers can't do anything about no matter how much time money and effort they spend defending against it.
It has nothing to do with the existence of thieves or the fact that the material is digital. All that matters is that this is how things are going to be, the end. Yes they should give up because they have already lost. Right or wrong, they have lost. All they can hope to achieve now is to alienate customers and lose boat loads of money fighting a losing battle.
And no, criminals should not always be lauded. In fact I'm pretty sure no one has said they should. Even if they have it's irrelevant.
digital content = irrelevant
copyright holders = irrelevant
existence of thieves = irrelevant
time, money, and effort = irrelevant
tech prowess = irrelevant
All that mumbo jumbo is irrelevant to the issue you are referencing. It's a simple question of whether or not, in a world where file sharing WILL happen and will happen A LOT does it make any sense for the content providers to continue fighting it rather than finding ways to embrace it.
It's a simple matter of logistics and sustainable business models. You know business 101 stuff.