No, America Does Not Need a Hate Speech Law

One of the best things about the Trump presidency is the way that the Leftists are finally taking off the mask to show off their totalitarian ideology to the world. There was a time when they felt the need to pretend to respect the rights enumerated in the Bill of Rights, while actually believing that freedom of speech, religion and the whole idea of checks and balances are archaic concepts that only get in the way of their efforts to create a socialist utopia that will be best for everyone, whether we like it or not. In the past few years, however, the Left has become more comfortable openly proposing censoring speech, confiscating wealth and guns, and punishing churches that do not change their doctrines per the latest diktats from the woke.

Let’s keep it.

In an oped piece in the Washington Post, Richard Stengel asserts that America needs a law against hate speech, that the first amendment guarantee of freedom of speech was designed for a simpler time and the government can and should step in to prevent the spread of hateful speech and false information.

When I was a journalist, I loved Justice Oliver Wendell Holmes Jr.’s assertion that the Constitution and the First Amendment are not just about protecting “free thought for those who agree with us but freedom for the thought that we hate.”

But as a government official traveling around the world championing the virtues of free speech, I came to see how our First Amendment standard is an outlier. Even the most sophisticated Arab diplomats that I dealt with did not understand why the First Amendment allows someone to burn a Koran. Why, they asked me, would you ever want to protect that?

Okay, let’s stop right there. Are we now accepting advice on free speech from representatives of some of the most illiberal regimes in the world? Yes, our first amendment is an outlier. That is a good thing. America’s commitment to freedom of speech and thought is one of the things that makes America great. It is not a coincidence that the country that allows people to burn a Koran is one of the most successful nations in history while those countries that kill people who burn a Koran are, we might as well be blunt about it, shitholes.

It’s a fair question. Yes, the First Amendment protects the “thought that we hate,” but it should not protect hateful speech that can cause violence by one group against another. In an age when everyone has a megaphone, that seems like a design flaw

 

That’s partly because the intellectual underpinning of the First Amendment was engineered for a simpler era. The amendment rests on the notion that the truth will win out in what Supreme Court Justice William O. Douglas called “the marketplace of ideas.” This “marketplace” model has a long history going back to 17th-century English intellectual John Milton, but in all that time, no one ever quite explained how good ideas drive out bad ones, how truth triumphs over falsehood.

Milton, an early opponent of censorship, said truth would prevail in a “free and open encounter.” A century later, the framers believed that this marketplace was necessary for people to make informed choices in a democracy. Somehow, magically, truth would emerge. The presumption has always been that the marketplace would offer a level playing field. But in the age of social media, that landscape is neither level nor fair.

On the Internet, truth is not optimized. On the Web, it’s not enough to battle falsehood with truth; the truth doesn’t always win. In the age of social media, the marketplace model doesn’t work. A 2016 Stanford study showed that 82 percent of middle schoolers couldn’t distinguish between an ad labeled “sponsored content” and an actual news story. Only a quarter of high school students could tell the difference between an actual verified news site and one from a deceptive account designed to look like a real one.

No, it is not a design flaw. The first amendment does not just protect the good guys. It also protects the bad guys. The truth does not always prevail over lies. The point of the concept of the marketplace of ideas is that we the people should be the ones to decide what is true and what is false, not some censor. Mr. Stengel believes that because we deplorables are just too stupid to determine what is true so we need someone to control what we see.

How do we define hate speech? Who decides what is hate speech? How do we ensure that whatever government agency is responsible for policing speech doesn’t simply define speech it happens not to like as hate speech? How do we ensure an honest debate of a contentious issue if one side is simply defined as hate? How could we discuss illegal immigration or gay marriage if the people who happen to believe that illegal immigration should be stopped are defined or that marriage should only be between a man and a woman are defined as racists or homophobes and their arguments labeled as hate? What if some future government defines dissent as hate? Does Mr. Stengel really trust any government enough to grant it the power to decide what is acceptable discourse?

Since World War II, many nations have passed laws to curb the incitement of racial and religious hatred. These laws started out as protections against the kinds of anti-Semitic bigotry that gave rise to the Holocaust. We call them hate speech laws, but there’s no agreed-upon definition of what hate speech actually is. In general, hate speech is speech that attacks and insults people on the basis of race, religion, ethnic origin and sexual orientation.

Somehow the definition of hate speech tends to morph from deliberate insults to ideas that offend certain privileged people. I am not sure that isn’t deliberate.

 think it’s time to consider these statutes. The modern standard of dangerous speech comes from Brandenburg v. Ohio (1969) and holds that speech that directly incites “imminent lawless action” or is likely to do so can be restricted. Domestic terrorists such as Dylann Roof and Omar Mateen and the El Paso shooter were consumers of hate speech. Speech doesn’t pull the trigger, but does anyone seriously doubt that such hateful speech creates a climate where such acts are more likely?

The problem with hate speech laws, besides being a dangerous abridgment on our freedoms, is that they don’t really work. Punishing someone for saying the wrong thing does not change his mind. It does not change the minds of the people who are frightened by his example into remaining silent. It very likely encourages hate by making the person who is being punished into a martyr. As this article from the Cato Institute points out, the Weimar Republic had what would today be called hate speech laws precisely to keep people like the Nazis from gaining power. It didn’t work.

 Leading Nazis, including Joseph Goebbels, Theodor Fritsch, and Julius Streicher, were all prosecuted for anti-Semitic speech. And rather than deterring them, the many court cases served as effective pubicrelations machinery for the Nazis, affording them a level of attention that they never would have received in a climate of a free and open debate.

In the decade from 1923 to 1933, the Nazi propaganda magazine Der Stürmer — of which Streicher was the executive publisher — was confiscated or had its editors taken to court no fewer than 36 times. The more charges Streicher faced, the more the admiration of his supporters grew. In fact, the courts became an important platform for Streicher’s campaign against the Jews.

I should point out that Der Stürmer was so venomously anti-Semitic that even many Nazis were disgusted by it and it was never an official publication of the National Socialist Party. Even so, prosecuting Julius Streicher for publishing what was clearly propaganda did not eliminate the problem. It only made his supporters more determined while inspiring the curious to investigate just to see what the controversy was all about. Der Stürmer probably gained more readers than if the German government had simply ignored it.

America does not need a hate speech law. What we need is more tolerance for other’s views. We need to develop thicker skins, not more chips on our shoulders. We need to regain the respect for free speech and free thought that made this country great. We need to be more like America rather than follow the bad example of others.

Banning Hate Speech

 

Senator Edward Markey from Massachusetts wants to stop hate crimes. So, he has proposed legislation to study and recommend ways to stop hate crimes by stopping the hate speech that encourages such crimes. Some might argue that this would endanger freedom of speech but if you can’t trust Congress and the federal government to safeguard our liberties, who can you trust. I found this article in the Boston Herald, thanks to Instapundit.

 

U.S. Sen. Edward J. Markey wants the government to study and recommend ways to stop the Internet, TV and radio from “encouraging hate crimes,” but First Amendment advocates say the bill is a menace to free speech.

“This proposed legislation is worse than merely silly. It is dangerous,” said civil liberties lawyer Harvey A. Silverglate, arguing even hate speech is protected absent a crime. “It is not up to Sen. Markey, nor to the federal government, to define for a free people what speech is, and is not, acceptable.”

Markey’s bill would direct a government agency to identify hate speech and create recommendations. Markey in a statement yesterday said the bill makes “crystal clear that any recommendations must be consistent with the First Amendment’s free speech protections.”

Harvard Law professor Alan M. Dershowitz said, “He’s not going to be able to come up with legislation that sufficiently protects the First Amendment. We always have to be able to respond to the racists and bigots, but not at the expense of the First Amendment.”

Gene Policinski of the First Amendment Center and the Newseum Institute said, “Anytime government in any form or level looks to study our speech — even something that we might all consider detestable speech — we need to pay attention. The First Amendment really permits everyone in the marketplace to speak.”

Michael Lieberman of the Anti-Defamation League said he backs the bill, which is similar to a Markey-backed 1993 study that found hate crimes linked to media “scattered and largely anecdotal” and recommended no government bans.

“If we thought this legislation would result in censorship, we would not support it,” said Lieberman. “You could take the position that any legislation could lead to government censorship, but the way we’re looking at this is a net positive. This updates a study that is 20 years old.”

House co-sponsor U.S. Rep. Hakeem Jeffries (D-N.Y.) said, “Those recommendations are simply recommendations unless they are acted on. … If there’s speech that’s protected by the First Amendment, Congress will presumably not act.”

English: Portrait of US Rep Ed Markey
Throw him out!  (Photo credit: Wikipedia)

Notice that the article never states which party Senator Markey belongs to. I am sure nobody will be very surprised to learn that a lawmaker who proposes censorship is a Democrat.

 

This is a really silly idea. I doubt if any such bill would even make it out of committee and if by some miracle both houses of Congress actually passed anything like it, the Supreme Court will declare it unconstitutional before the ink dries on the paper. I doubt very much if there is any actual evidence that any hate crime is inspired by hate speech and I doubt very much if attempting to ban hate speech from the internet, television and radio could possibly be effective.

 

I have to wonder though, what is it about these people, especially the most liberal Democrats, that their first impulse is always to shut down and censor people. Perhaps we should make a law that anyone in Congress who proposes such obviously unconstitutional legislation should be immediately dismissed from their office and barred from any elective  office for life.

 

 

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