If you say "Bong hits 4 jesus" is nonsense, the court will take you at word. If you say it's nonsense, they'll agree with you, and accordingly, you won't have free speech protection.

Mr. Bong Hits, had he consistently maintained he a had a meaningful message, would have had free speech protection.

Now we see the same in kiddie porn. If "you", the distributor, call it porn, it's porn, and the court will throw your dumb ass in jail. If you call it art, it's art! If you call it a political statement, it's a political statement!

There's obvious caveats to the "it is what I say it is rule". Free speech is no trump card when you cause material harm. You can't rob Bill Gates and get away with it by calling it a political statement, even if it is. Or set fire to someone else's property as a political statement or work of art. Or if you abuse a real child.

But... it does make sense for the law to take people at their word. We shouldn't carve out special rules to protect people who lie or constantly change their story.

Your test sinks faster than the Edmund Fitzgerald. If the acid test for kiddie porn (which is illegal) is whether the author declares it kiddie porn, then only self-destructive people will ever call it what it is. You also then have another dilemma. Person A takes a picture of a sex act with a 6 year old. Person A calls it art. Simultaneously person B takes the same picture but calls it kiddie porn because person B is in a non-extradition country where kiddie porn is legal. Now is it or is it not kiddie porn?

Ah ranger, your circumstance is an example of material harm! It would not clear that key hurdle to make it to the first amendment "it is what I say it is" test. So, in your particular hypothetical, "person A" is screwed. I don't want to "cheat" by changing your hypothetical on you, but I'll be happy to take another hypo.

Madai wrote, "If you say "Bong hits 4 jesus" is nonsense, the court will take you at word. If you say it's nonsense, they'll agree with you, and accordingly, you won't have free speech protection."

What Madai seems to be saying is that SCOTUS considers speech unprotected by default, and only considers the 1st Amendment to apply in exceptions; e.g. if it's meaningful speech (as determined by the courts) and if it passes certain tests.

Y'know, that's an extremely authoritarian view of free speech. I'm wondering if that's anything like the idea the framers had in mind when they wrote that amendment.

Just to make the point juicier, in the art world, it is not at all unusual for an artist to create a work of art without being consciously certain of what it is intended to communicate, then release it into the wild and find out what people say about it. What does it mean? The artist won't say. He might not be able to say until he hears some feedback. He might not even then. Artists often pass the buck and say "it means what you think it means."

What is meaningful speech? "Bong Hits for Jesus" might have meant nothing to the kids who wrote it. But it obviously had meaning to those who heard it. Otherwise there would never have been such a brouhaha over its expression. Art often works in exactly the same way.

In the US, we've been sliding down a slippery slope on this free speech issue for a long time. It's now approaching the point of absurdity. SCOTUS is splitting hairs like crazy trying to make the morally-motivated restrictions they love appear to look Constitutionally sensible. It's not working. Those glazed looks this case evokes are obvious signs of cognitive dissonance.

Let me clarify by what I meant as "take". It is not the actual creation of the photo, but the distribution. Person A is not involved in your so-called material harm. You really were sidestepping the issue of whether pseudo labels are meaningful in the criminal sense. For instance, it is not illegal to copy a painting of the Mona Lisa as long as it is unsigned. This is person A's role. Then person B comes along and signs the master's name in the same context. Is the painting now legitimate and is person A now a forger?

"What Madai seems to be saying is that SCOTUS considers speech unprotected by default"

Uh... you make it sound like speech is under constant assault. It is not. 99.99% of what people say goes unchallenged. It is only the extremely exceptional cases of speech that reach the court system, and only .01% of those make it to the supreme court. The fact that lower courts couldn't handle it makes it exceptional.

In the case a "bong hits 4 jesus", it is not that speech is unprotected. It's that no SPEECH occured. Nonsense occured. Some people claim taking a shit is a form of expression. That's fine. When I take a shit, I am not expressing a damn thing.

There's no slippery slope here. A kid acted out and was disciplined. If they were actually trying to express something, the kid would have won.

"Person A is not involved in your so-called material harm."

I am not sure a jury would agree. A reasonable person, seeing a child being raped, would not take a photo. They'd try to save the kid, I'd hope.

"For instance, it is not illegal to copy a painting of the Mona Lisa as long as it is unsigned. This is person A's role. Then person B comes along and signs the master's name in the same context. Is the painting now legitimate and is person A now a forger?"

Here's a hypothetical involving no material harm. As I'm sure you're aware, a reasonable person would know the Mona Lisa is not usually sold. Nevertheless, this becomes a copyright thingie. If Person A makes a profit somehow, they're fucked. Otherwise fair use would obviously protect them.