Bad Arguments for Limiting Speech

The First Amendment is not a problem; it is a solution to many problems.

A man with tape over his mouth.
Navesh Chitrakar / Reuters

In a Washington Post op-ed titled “Why America Needs a Hate Speech Law,” Richard Stengel, who once edited Time, begins by recalling, “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 a three-year stint at the State Department caused him to rethink his views. “I came to see how our First Amendment standard is an outlier,” he explained this week. “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? It’s a fair question.”

I’m not sure it is a fair question. It seems unfair for diplomats from a region where merely being Sunni or Shia or Kurdish or Christian or Jewish, or departing from the al-Qaeda or ISIS interpretation of the Koran, may be enough to put you in mortal danger, to criticize the speech liberties that Americans enjoy.

And it seems derelict for a U.S. diplomat to fail to defend the Bill of Rights to foreign counterparts, who should be perfectly capable of grasping that protecting all speech, however offensive, is one sure way of preventing grave infringements on liberty.

The Arab world provides many examples of what can and does go wrong in the absence of uncompromising speech protections. Thank goodness the United States is an outlier compared with Saudi Arabia, where blasphemy and apostasy are capital offenses; Jordan, where peaceful anti-corruption advocacy is met with arrests; or Egypt, where dissenters are treated as criminals.

“Yes, the First Amendment protects the ‘thought that we hate,’” Stengel grants in his op-ed, “but it should not protect hateful speech that can cause violence by one group against another.” But if the U.S. outlaws speech that causes violence, that will create a perverse incentive––anyone who wants a viewpoint outlawed need only stoke violence to get his way. If Islamist radicals react with violence to feminist speech or Hollywood movies that portray two men kissing, will Stengel advocate for laws that infringe on the ability of Americans to so express themselves?

* * *

The First Amendment is as important and as salutary in its effects now as ever, giving the United States an extra bulwark against authoritarians at a moment when their power is ascendant in dozens of countries.

Stengel has a different view.

“It is important to remember that our First Amendment doesn’t just protect the good guys; our foremost liberty also protects any bad actors who hide behind it to weaken our society,” he writes. “Leading up to the 2016 election, Russia’s Internet Research Agency planted false stories hoping they would go viral. They did. Russian agents assumed fake identities, promulgated false narratives and spread lies on Twitter and Facebook, all protected by the First Amendment.”

But Facebook and Twitter are both free to remove content that they identify as foreign propaganda, or to police fake news, without running afoul of the First Amendment. And even if Congress tried to pass a law against planting false stories online, the Internet Research Agency would not obey it.

Stengel writes:

The Russians understood that our free press and its reflex toward balance and fairness would enable Moscow to slip its destructive ideas into our media ecosystem. When Putin said back in 2014 that there were no Russian troops in Crimea—an outright lie—he knew our media would report it, and we did.

Even if accurate, what does that have to do with the First Amendment, unless the implication is that the U.S. government should exercise control over how news organizations report on the words of foreign leaders, an infringement on free speech that goes far beyond prohibiting “hate speech.”

Says Stengel:

… 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.

But there is no reason to believe that the truth was simpler to figure out in 1789 than in 2019. The First Amendment was adopted to limit federal power––to protect vigorous self-governance by the people––without any presumption that truth would always win out.

Here is James Madison, the foremost architect of the Constitution, writing in Federalist No. 10:

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves … The latent causes of faction are thus sown in the nature of man ...

A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate … So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.

Does that sound like a man who believes that truth will magically emerge from liberty?

Finally, there is good reason to believe that liberal free-speech regimes are superior to all others at surfacing the truth. In his book Kindly Inquisitors, Jonathan Rauch eschews the “marketplace” analogy in favor of “evolution”:

… Liberal systems are center-less and self-regulating … our knowledge comes to us not from revelation, as religious traditions maintain; not from deep reflection by the wise, as in Plato; nor even from crisp experiments that unambiguously reveal nature’s secrets … Rather, our knowledge evolves—with all the haphazardness and improvisation that “evolving” implies … Hypotheses and ideas evolve as they compete under pressure from criticism, with intellectual diversity providing the raw material for change. The evolutionary view of knowledge recognizes that, in science, trial and error play as important a role as does mechanistic experimentation. It recognizes that scientific consensus doesn’t always march methodically toward a single inevitable conclusion; the consensus often meanders or drifts, and where it comes out on any given day can depend as much on circumstance and fashion, even as on personalities as on nature. Which is not to say that the results are random.

Trial and error may be unpredictable in the short term, but in the longer term it produces steady improvement. The path may veer this way and that, but the long term direction is uphill. Most important, the evolutionary view recognizes that knowledge comes from a social process. Knowledge comes from people checking with each other. Science is not a machine; it is a society, an ecology.

Liberal free-speech regimes are better than any alternative ever tried at subjecting all ideas to scrutiny, and at preventing powerful actors from quashing truth seekers. “As we check and criticize and find common ground, as we propose ideas and they fall apart and we try again, our knowledge advances,” Rauch writes.

Of course, many will persist in their ignorance––something Stengel treats as new under the sun:

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.

There was never a time when truth always won, but let’s set that aside. How strange to simultaneously believe that it’s more difficult than ever to tell truths from falsehoods, that many citizens do not, in fact, possess the ability to do so, and to imply that elected officials chosen by those citizens should make determinations about what is true and false and punish people for the latter.

* * *

Finally, Stengel returns to the matter of hate speech.

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.
While that is a broadly correct account of the impetus cited prior to the enactment of hate speech laws in Europe, it is worth knowing the flaw in that reasoning.

As Flemming Rose explained after studying the Weimar Republic:

Contrary to what most people think, Germany did have hate-speech laws that were applied quite frequently. The assertion that Nazi propaganda played a significant role in mobilizing anti-Jewish sentiment is irrefutable. But to claim that the Holocaust could have been prevented if only anti-Semitic speech had been banned has little basis in reality. 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 public relations 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.

Stengel gamely acknowledges that “there’s no agreed-upon definition of what hate speech actually is,” then opines, “I think it’s time to consider these statutes.” He cites First Amendment precedent that permits the punishment of speech that incites “imminent lawless action,” and adds, “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?”

But laws against hate speech don’t necessarily create a climate where such acts are less likely, because any law narrow enough to avoid punishing a lot of innocent people is broad enough to permit hateful bigots to convey information that a tiny number of people respond to with violence.

Roof’s case helps to illuminate why. Among the influences he described in his manifesto: a Japanese revenge film that he misunderstood and his impression that the man who killed Trayvon Martin was in the right. Think of how broad a U.S. law would need to be to keep him from either of those inspirations.

Mateen killed 53 at a gay nightclub in Orlando. He said he was triggered in part by an air strike weeks before that killed an ISIS leader in Iraq, and subscribed to that terrorist group’s radical reading of the Koran.

American social-media companies already try to identify and remove ISIS propaganda. Does Stengel believe that parts of the Koran, or scholars of it, ought to be suppressed? How does he imagine the civil liberties of Muslims would then fare?

The El Paso shooter said he carried out his attack in response “to the Hispanic invasion of Texas.” Does Stengel imagine that a self-governing people will legally prohibit speech of a sort deployed by the sitting president of the United States?

In his conclusion, Stengel poses a question:

Hate speech has a less violent, but nearly as damaging, impact in another way: It diminishes tolerance. It enables discrimination. Isn’t that, by definition, speech that undermines the values that the First Amendment was designed to protect: fairness, due process, equality before the law? Why shouldn’t the states experiment with their own version of hate speech statutes to penalize speech that deliberately insults people based on religion, race, ethnicity and sexual orientation?

Because it is immoral to marshal state violence to punish people for expressing their beliefs. Because laws against speech that insults people based on religion, race, ethnicity, and sexual orientation would have punished essayists like Christopher Hitchens, comedians like Eddie Murphy, hip-hop artists, feminist radicals like Andrea Dworkin, and radical gay activists who dislike “breeders.”

Because, as the ACLU explains, “history teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one’s liberty will be secure. In that sense, all First Amendment rights are indivisible.”

The ACLU adds, “Restrictions on speech have proven at best ineffective, and at worst counter-productive, in the fight against bigotry. Although drafted with the best intentions, these restrictions are often interpreted and enforced to oppose social change. Why? Because they place the power to decide whether speech is offensive and should be restrained with authority figures … rather than with those seeking to question or dismantle existing power structures.”

How weak is the case for new speech restrictions in the United States? So weak that the preceding arguments were the best that could be marshaled by a writer who ascended to the heights of both journalism and the federal government. The First Amendment is not a problem; it is a solution to many problems.