California Transgender law

Author: Alec

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@oromagi
The government is expressly prohibited from ever deciding what people can do based on belief system and stop hiding behind belief systems.  If your belief system requires you to tell gay people they're going to hell or to be unkindly honest to elderly people entrusted to your care, then it is time to double-check your belief system; it need not waste the government's time.  There is no sympathetic circumstance by which a service provider would repeatedly misgender after correction.  

Your question is so it's unkind- isn't it protected speech?  The answer is yes, except when there's criminal intent.
LOL, if a law is being challenged on a first amendment basis, you can't say that the first amendment doesn't apply because there's 'criminal intent' due to the law in question. The law itself, which makes the speech criminal, is what is being challenged.

I can show in a court of law that the can-opener is hallucinating.  Can you show in a court of law that a transgendered person is hallucinating?  As far as I can tell, gender dysphoria is just another human condition, well enough documented to seem present in every time and culture.  Established enough to be present in law.  I suppose there is a critique-worthy element of fashion to our present embrace of trans culture but fashion skews queer and ultimately I believe that increasing our human expression of gender is just that, increasing our human expression, which I consider beneficial.
Murder and thievery are also 'human conditions present in every time and culture'. So are depression and hysteria. Being a 'common human condition' does not in any sense make things sacrosanct and perfectly acceptable.

Look- if the lunatic can-opener said "call me man one more time and I'll jump" and you say "man" and the lunatic jumps, you are probably going to get charged with something and we both know there's some justice in such a charge. There are circumstances when protected speech becomes crime and so forfeits protection.  Willfully violating another citizen's (potentially fragile) identity in the privacy of their homes, in a time of exegesis, that rises to the level of crime.  The State of California sees that as minor crime.  Why can't you?
Actually, there are no conditions where protected speech becomes a crime. That's what protected speech means. The person in that situation would not be charged with anything, the lunatic would be charged with assault and his lawyers would likely mount an insanity defense.

Perhaps his employer could punish him for doing such things discourteously. But what if the home is owned by people who don't think that a transgendered woman is a woman, and who agree with the employee? That's the crucial issue: the government would force everyone in that situation to lie under punishment of a fine. I don't think that such a case would survive in front of the SC.
The Supreme Court has delivered many unworthy readings of the Constitution,  I wouldn't trust it to define my sense of right and wrong.
Neither would I, but the Supreme Court isn't there to determine right or wrong, they're there to interpret law which is written and executed by the other two branches of government.

The whole general environment surrounding pronouns remind me of Chesterton's prophecy:
"The great march of mental destruction will go on. Everything will be denied. Everything will become a creed. It is a reasonable position to deny the stones in the street; it will be a religious dogma to assert them. It is a rational thesis that we are all in a dream; it will be a mystical sanity to say that we are all awake. Fires will be kindled to testify that two and two make four. Swords will be drawn to prove that leaves are green in summer. We shall be left defending, not only the incredible virtues and sanities of human life, but something more incredible still, this huge impossible universe which stares us in the face."

Great essay, an appeal for orthodoxy in a book about heretics.  I'm not sure that you get that Chesterton's being positive here embracing new heresies to better perfect his orthodoxy.  He expects that everyone will have their own dogma eventually and such is the natural state of humanity.  A fairly heretical orthodoxy for a Catholic, wouldn't you say?
Whew, someone said something about no reading compression, but this one really takes the cake. The central point of this section is that doubt refines and sharpens orthodoxy through contrast, to the point where the truth will end up taking on a religious quality in ways which, for his generation, seemed impossibly absurd.

Here is more from the same essay:

In real life the people who are most bigoted are the people who have no convictions at all. The economists of the Manchester school who disagree with Socialism take Socialism seriously.It is the young man in Bond Street, who does not know what socialism means much less whether he agrees with it, who is quite certain that these socialist fellows are making a fuss about nothing.The man who understands the Calvinist philosophy enough to agree with it must understand the Catholic philosophy in order to disagree with it.It is the vague modern who is not at all certain what is right who is most certain that Dante was wrong....It was the peoplewho did not care who filled the world with fire and oppression.It was the hands of the indifferent that lit the faggots;it was the hands of the indifferent that turned the rack....Bigotry in the main has always been the pervading omnipotence of those who do not care crushing out those who care in darkness and blood.
Chesterton disliked indifference, that doesn't translate to a support for every creed. He once famously said that impartiality was a pompous word for indifference, which was an elegant word for ignorance.
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@oromagi
There are circumstances when protected speech becomes crime and so forfeits protection.
Fighting words are not protected speech.

The original fighting words doctrine was born out of Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942). Chaplinsky, a Jehovah’s Witness, was convicted of disturbing the peace for yelling at a local sheriff, “You are a God damned racketeer” and “a damned Fascist” and for further remarking, “the whole government of Rochester are Fascists or agents of Fascists.” The Supreme Court upheld his conviction, creating a narrow category of speech—“fighting words”—that did not enjoy the protections of the First Amendment. The fighting words doctrine, as originally announced in Chaplinsky, found that two types of speech were not protected—words that by their very utterance inflict injury, and speech that incites an immediate breach of the peace. [LINK]
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@Mharman
But once again, you assume it is the fault of the person refusing to go against their beliefs. While old people can be fragile, they can also tough and wise. If they are snowflakes, it is their fault.
Conservatives are not immune to personal outrage. - https://www.youtube.com/watch?v=nYymnxoQnf8
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@ResurgetExFavilla
Actually, there are no conditions where protected speech becomes a crime. That's what protected speech means. The person in that situation would not be charged with anything, the lunatic would be charged with assault and his lawyers would likely mount an insanity defense.
Fighting words are not protected speech.

The original fighting words doctrine was born out of Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942). Chaplinsky, a Jehovah’s Witness, was convicted of disturbing the peace for yelling at a local sheriff, “You are a God damned racketeer” and “a damned Fascist” and for further remarking, “the whole government of Rochester are Fascists or agents of Fascists.” The Supreme Court upheld his conviction, creating a narrow category of speech—“fighting words”—that did not enjoy the protections of the First Amendment. The fighting words doctrine, as originally announced in Chaplinsky, found that two types of speech were not protected—words that by their very utterance inflict injury, and speech that incites an immediate breach of the peace. [LINK]
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@3RU7AL
Refusing to go against your own beliefs and use someone's stupid pronoun is not fighting words nor is it disturbing any peace.
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@Mharman
Refusing to go against your own beliefs and use someone's stupid pronoun is not fighting words nor is it disturbing any peace.
Do you believe it would be considered harassment if people refused to call you by your preferred pronoun?

I'm sure that, generally speaking, if you made a habit out of purposefully and repeatedly calling strangers by the "wrong" pronoun, and forcefully ignored their protests, it would not be surprising if at least a few of them physically attacked you.

That would seem to qualify as "fighting words".


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@3RU7AL
They are fighting words if you choose to be offended. But the intent of refusing to go along with it is not to cause trouble, but to hold true to one's beliefs. It not meant to be insulting, threating, or abusive. It's refusing to compromise one's beliefs.
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@Mharman
They are fighting words if you choose to be offended.
Well, there you go.  By your own admission, if someone chooses to be offended then, "They are fighting words".  Case closed.

If anyone says "please don't say that" and you then make a point out of saying it repeatedly, then you are de facto spoiling for a fight.

But the intent of refusing to go along with it is not to cause trouble, but to hold true to one's beliefs.
If the "intent" is not to cause trouble, then just avoid pronouns.  Say, "hey you" and maybe, "sorry, I didn't mean to offend you".

You can't defend using obvious insults (the "n" word for example) simply because they reflect your "true beliefs".

What religion specifies specific pronoun usage?

And, how can you know for certain what gender a person is without a strip-search?  Or a blood sample, or demanding to see their birth certificate?

It not meant to be insulting, threating, or abusive. It's refusing to compromise one's beliefs.
I see you seem to think you can speak authoritatively about the motives of all trans-phobics.
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@3RU7AL
Do you believe it would be considered harassment if people refused to call you by your preferred pronoun?

I'm sure that, generally speaking, if you made a habit out of purposefully and repeatedly calling strangers by the "wrong" pronoun, and forcefully ignored their protests, it would not be surprising if at least a few of them physically attacked you.

That would seem to qualify as "fighting words".
people get assaulted all the time, so what?

well, let's see do they

produce a clear and present danger?  I would say no
incitement to riot which creates a clear and present danger?  nope
a direct personal insult or an invitation to exchange fisticuffs?  naw

so by that logic, whenever someone is called any name they consider derogatory, even repeatedly that justifies violence and is not protected speech.  Repeatedly calling someone names or whatever is harassment, not because of the words they use but by their actions, that is what you are describing, again not fighting words.


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@TheDredPriateRoberts
people get assaulted all the time, so what?
well, let's see do they
produce a clear and present danger?  I would say no
incitement to riot which creates a clear and present danger?  nope
a direct personal insult or an invitation to exchange fisticuffs?  naw
so by that logic, whenever someone is called any name they consider derogatory, even repeatedly that [does not] justifies violence and is not protected speech.  Repeatedly calling someone names or whatever is harassment, not because of the words they use but by their actions, that is what you are describing, again not fighting words.
Fighting words are not protected speech.

The original fighting words doctrine was born out of Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942). Chaplinsky, a Jehovah’s Witness, was convicted of disturbing the peace for yelling at a local sheriff, “You are a God damned racketeer” and “a damned Fascist” and for further remarking, “the whole government of Rochester are Fascists or agents of Fascists.” The Supreme Court upheld his conviction, creating a narrow category of speech—“fighting words”—that did not enjoy the protections of the First Amendment. The fighting words doctrine, as originally announced in Chaplinsky, found that two types of speech were not protected—words that by their very utterance inflict injury, and speech that incites an immediate breach of the peace. [LINK]

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@3RU7AL
right and misgendering someone is not "fighting words" and that I was posting a reply to that fact.
the way you described repeatedly etc is harassment and not speech, even so, if someone gets in your face screaming at you, you still can't assault them with any kind of legal defense.

"the Court ruled that offensive language did not constitute fighting words."

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@TheDredPriateRoberts
right and misgendering someone is not "fighting words" and that I was posting a reply to that fact.
We seem to agree that it is harassment.

the way you described repeatedly etc is harassment and not speech,
That is how it is described in the statute.

even so, if someone gets in your face screaming at you, you still can't assault them with any kind of legal defense.
Nobody suggested that assault was legal.  However, if you "fear for your life" apparently you can shoot them dead.

"the Court ruled that offensive language did not constitute fighting words."
Citation please.
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@3RU7AL
That ruling has been very narrowly applied. For an example, read 'R.A.V. v. City of St. Paul', which struck down a hate speech law which banned cross burnings. This is because any law banning fighting words cannot be narrow in any way which touches on ideology or belief; this makes it unconstitutional. Cross-burnings may be 'fighting words', but it is against the law to pass a law to ban only one kind of 'fighting words' and not all fighting words. Only someone with a grade school understanding of first amendment jurisdiction would apply Chaplinsky's 'fighting words' to pronouns.

This is the opinion for the case (which was unanimous), authored by Justice Scalia:

The proposition that a particular instance of speech can be proscribable on the basis of one feature (e. g., obscenity) but not on the basis of another (e. g., opposition to the city government) is commonplace, and has found application in many contexts. We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses--so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not. See Johnson, 491 U. S., at 406-407. See also Barnes v. Glen Theatre, Inc., 501 U. S. ___, ___ ___ (1991) (plurality) (slip op., at 4-6); id., at ___ ___ (Scalia, J., concurring in judgment) (slip op., at 5-6); id., at ___ ___ (Souter, J., concurring in judgment) (slip op., at 1-2); United States v. O'Brien, 391 U.S. 367, 376-377 (1968). Similarly, we have upheld reasonable "time, place, or manner" restrictions, but only if they are "justified without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted); see also Clark v. Community for Creative Non Violence, 468 U.S. 288, 298 (1984) (noting that the O'Brien test differs little from the standard applied to time, place, or manner restrictions). And just as the power to proscribe particular speech on the basis of a noncontent element (e. g., noise) does not entail the powerto proscribe the same speech on the basis of a content element; so also, the power to proscribe it on the basis of one content element (e. g., obscenity) does not entail the power to proscribe it on the basis of other content elements.

In other words, the exclusion of "fighting words" from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a "nonspeech" element of communication. Fighting words are thus analogous to a noisy sound truck: Each is, as Justice Frankfurter recognized, a "mode of speech," Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring in result); both can be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment. As with the sound truck, however, so also with fighting words: The government may not regulate use based on hostility--or favoritism--towards the underlying message expressed. Compare Frisby v. Schultz, 487 U.S. 474 (1988) (upholding, against facial challenge, a content neutral ban on targeted residential picketing) with Carey v. Brown, 447 U.S. 455 (1980) (invalidating a ban on residential picketing that exempted labor picketing). [n.5]

The concurrences describe us as setting forth a new First Amendment principle that prohibition of constitutionally proscribable speech cannot be "underinclusiv[e]," post, at 6 (White, J., concurring in judgment)--a First Amendment "absolutism" whereby "within a particular `proscribable' category of expression, . . . a government must either pro scribe all speech or no speech at all," post, at 4 (Stevens, J., concurring in judgment). That easy target is of the concurrences' own invention. In our view, the First Amendment imposes not an "underinclusiveness" limitation but a "content discrimination" limitation upon a State's prohibition of proscribable speech. There is no problem whatever, for example, with a State's prohibiting obscenity (and other forms of proscribable expression) only in certain media or markets, for although that prohibition would be "underinclusive," it would not discriminate on the basis of content. See, e. g., Sable Communications, 492 U. S., at 124-126 (upholding 47 U.S.C. § 223(b)(1) (1988), which prohibits obscene telephone communications).

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@ResurgetExFavilla
"...the Supreme Court has effectively limited the exception to only include abusive language, exchanged face to face, which would likely provoke a violent reaction." [LINK]

Harassing someone face to face by calling them by a title they already specifically asked you not to use would seem likely to provoke a violent reaction.
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Shame on California.

What's next? Recognise Spanish as second language?
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@IlDiavolo
What's next? Recognise Spanish as second language?
If California did that, I would worry that many in the region would want to break away and form their own countries, just like many in PR want to do.



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@Alec
So do you think it can happen in the near future? Because I was kidding, my American friend.
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@TheDredPriateRoberts
as I said a private company would fire employees for abuse
A visit to the real world might help you but I doubt it.

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@3RU7AL
Look up 'strict scrutiny' sweetie, maybe you can begin your introduction to Supreme Court jurisprudence there.
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@ResurgetExFavilla
Look up 'strict scrutiny' sweetie, maybe you can begin your introduction to Supreme Court jurisprudence there.
Citation please.

"...the Supreme Court has effectively limited the exception to only include abusive language, exchanged face to face, which would likely provoke a violent reaction." [LINK]

Harassing someone face to face by calling them by a title they already specifically asked you not to use would seem likely to provoke a violent reaction.
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@3RU7AL
hmm I don't know about that whole face to face thing.  Police have been cursed at and screamed at when hold a line during a protest, same is true for elected officials, but you never see them getting arrested?

given the most recent video of the Catholic boy fiasco, the native Americans and others shouted out some pretty awful stuff.....no arrests made.

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@TheDredPriateRoberts
From your own link,

Local laws and cultural standards may support broader limitations on expression. For example, several states have anti-profanity laws on their books, including in Virginia, where it’s a misdemeanor to “curse or abuse” anyone, “under circumstances reasonably calculated to provoke a breach of the peace.” Within that state, local municipalities such as Rockville go further to restrict profanity within hearing of any other person on any public street or sidewalk.
 
Similarly, some states use statutes regarding disorderly conduct or disturbing the peace as a vehicle to limit language considered offensive. For example, Texas’ disorderly conduct statute includes using “abusive, indecent, profane, or vulgar language in a public place.” If convicted, a Texas disorderly conduct misdemeanor may be punishable by a fine of up to $500.

...but you never see them getting arrested?
You seem to be forgetting about...

The original fighting words doctrine was born out of Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942). Chaplinsky, a Jehovah’s Witness, was convicted of disturbing the peace for yelling at a local sheriff, “You are a God damned racketeer” and “a damned Fascist” and for further remarking, “the whole government of Rochester are Fascists or agents of Fascists.” The Supreme Court upheld his conviction, creating a narrow category of speech—“fighting words”—that did not enjoy the protections of the First Amendment. The fighting words doctrine, as originally announced in Chaplinsky, found that two types of speech were not protected—words that by their very utterance inflict injury, and speech that incites an immediate breach of the peace. [LINK]
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@3RU7AL
so this law says if you misgender it will be considered a breach of the peace, even so if you read the whole thing it says this will probably be decided by the Supreme Court, it's an unconstitutional law.
regardless, it's not curse word or abuse so it doesn't apply anyway.
again people get called faggot, bitch whatever, far more insulting than he or she, far far different than profanity, notice in that case, he yelled, making noise including yelling can be a breach of the peace.

"words that by their very utterance inflict injury"  he and she do not apply as they are common everyday words
"speech that incites an immediate breach of the peace"  same as above.



re: Chaplinsky v. State of New Hampshire
"In later decisions, the court narrowed the doctrine by limiting it to direct, face-to-face personal insults and by construing such laws narrowly to only fighting words.
While the U.S. Supreme Court has reversed the convictions in its fighting words cases, the doctrine remains active in the lower courts."
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@TheDredPriateRoberts
The original fighting words doctrine was born out of Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942). Chaplinsky, a Jehovah’s Witness, was convicted of disturbing the peace for yelling at a local sheriff, “You are a God damned racketeer” and “a damned Fascist” and for further remarking, “the whole government of Rochester are Fascists or agents of Fascists.” The Supreme Court upheld his conviction, creating a narrow category of speech—“fighting words”—that did not enjoy the protections of the First Amendment. The fighting words doctrine, as originally announced in Chaplinsky, found that two types of speech were not protected—words that by their very utterance inflict injury, and speech that incites an immediate breach of the peace. [LINK]
If you believe it does not qualify as "fighting words" then you have no reason to protest.  It should just fix itself.
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@3RU7AL
If you believe it does not qualify as "fighting words" then you have no reason to protest.  It should just fix itself.

no reason to protest unconstitutional laws?  hmm that a very peculiar thing to say.
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@TheDredPriateRoberts
If you believe it does not qualify as "fighting words" then you have no reason to protest.  It should just fix itself.
no reason to protest unconstitutional laws?  hmm that a very peculiar thing to say.
The courts decide what qualifies as "fighting words" or "curses or abuse" or "harassment", not protesters.
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@3RU7AL
I thought this was a discussion forum and that is what we were doing, you are very confusing.  Or is it you don't have an answer for the links and quotes and this is your way of giving up.
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@TheDredPriateRoberts
I thought this was a discussion forum and that is what we were doing, you are very confusing.  Or is it you don't have an answer for the links and quotes and this is your way of giving up.
The only thing you've convinced me of is that different states have different definitions regarding, "fighting words" or "curses or abuse" or "harassment".

You've already made conflicting statements such as, "Police have been cursed at and screamed at when hold a line during a protest, same is true for elected officials, but you never see them getting arrested?" (which they have by the way, but of course not in all cases) and "hmm I don't know about that whole face to face thing." (which suggests you didn't bother to check).

If you look at the supreme court's findings, they mention that the individual words are irrelevant, like the noise of a loud truck.  The salient detail to consider is the manner in which those words are delivered.

If you are actually advocating in favor of some sort of "open season" where people can yell and scream anything they like at anyone else as long as they don't physically touch them, then, ok, just say that, but hold that position consistently and stop whinging about the libtard and sjw and left-wing-media morons spouting off about whatever ticked them off that morning.

Every single time I listen to conservative talk radio or conservative television all they do is constantly whinge about how some liberal said some (subjectively) outrageous bullsh*t.  These professional conservative snowflakes are more sensitive and easily triggered than the people they are making fun of.

Do you believe people should be polite in public places?  What, if any limitations do you believe the law should place on disruptive behavior (including disruptive speech) in public places?
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@3RU7AL
The topic is the limitation and confines of my focus. In no way does this law meet the standards of the court rulings. The law or any suggestion that there be a law against misgendering people is unconditional for the reasons and links I have already provided.  I'm not interested in expanding the conversation as to what I think is acceptable language.

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3RU7AL
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@TheDredPriateRoberts
I thought this was a discussion forum and that is what we were doing, you are very confusing.  Or is it you don't have an answer for the links and quotes and this is your way of giving up.