Ken White: Don’t use these free-speech arguments ever again
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?
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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.
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.”
… 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.