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First Principles

Hate Speech Laws Do Not Protect Democracy—They Threaten It


- November 9th, 2019
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The First Amendment protects “hate speech.” So why do so many powerful figures want to criminalize this protected speech? Because this supposed menace threatens their political agenda.

Last week, the Washington Post published an op-ed by MSNBC analyst Richard Stengel arguing for a ban on hate speech. Stengel, a former Obama Administration staffer and Time magazine editor, said he began questioning the legality of hate speech when Arab diplomats expressed offense that Americans could burn Korans. To any normal American, the thought of an American diplomat taking ideas from Arab authoritarians sounds alarming, but Stengel lacks the self-awareness to realize that.

Stengel’s position leads him to adopt an excruciatingly dumb standard on free speech. “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,” he writes. “In an age when everyone has a megaphone, that seems like a design flaw.”

What’s the difference between the “thought we hate” and hate speech? Stengel doesn’t adequately explain, which further exposes his bad argument.

The Obama Administration veteran implies that speech should only be protected for the “good guys,” not the “bad guys” like Russian bots that, he seems to believe, can sway a presidential election with a handful of memes. He says the First Amendment is out of date because it doesn’t give liberal bureaucrats the power to determine what speech “threatens democracy” and undermines “tolerance.” He mentions that we do have laws against speech that explicitly incites violence and he feels we should broaden even that standard to include speech he deems less than “tolerant.”

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?

He concludes his op-ed with this Orwellian statement: “All speech is not equal. And where truth cannot drive out lies, we must add new guardrails. I’m all for protecting ‘thought that we hate,’ but not speech that incites hate. It undermines the very values of a fair marketplace of ideas that the First Amendment is designed to protect.”

Stengel’s opinion is both foolish and terrifying. It’s foolish in that it arrogantly presumes that we can have an objective standard for what constitutes hate speech and trust liberal bureaucrats to fairly enforce it. It’s terrifying in that it represents the opinion of many powerful people who truly think we must censor speech to protect “liberal values.” How does one protect liberal values by eliminating free speech, a cornerstone of classical liberalism?

Today’s “liberals” however are more than comfortable with prosecuting constitutionally protected speech.

The Oklahoma City Police Department is investigating an “It’s Okay to Be White” flier as a possible hate crime. Two University of Connecticut students were arrested and charged last month for saying the n-word. They were charged under a hate-speech law that prohibits “ridicule on account of creed, religion, color, denomination, nationality or race.” This rarely enforced law would likely not survive a court challenge and, if properly enforced, would ban all kinds of media and speech.

A mayoral candidate in Portland, Oregon called for her city to ban Dinesh D’Souza and anyone else connected to “white nationalist extremists” this week. How a city can ban a person? Particularly if this ban is based on that person’s supposed political ideology or Antifa smears?

Several Democratic leaders want tech platforms to censor “hate speech” more aggressively. Senator Kamala Harris (D-Calif.) has made this plan a core part of her campaign agenda and proposes punishment for tech giants that don’t silence those with whom she disagrees. Senator Elizabeth Warren (D-Mass.) and former presidential candidate Beto O’Rourke also agree that more should be done to censor politically incorrect views online.

U.S. Representative Frederica Wilson (D-Fla.) goes further than them all, demanding it should be illegal to criticize lawmakers online. Wilson’s opinion reveals the purpose of these hate speech laws: they’re designed to comfort the powerful, not to protect vulnerable minorities.

Even some conservatives show a lack of respect for free speech. U.S. Rep. Dan Crenshaw (R-Texas) implied this week that criticism of Israel is not covered by the First Amendment. No matter how much you disagree with anti-Israel views, such views are, in fact, protected by the First Amendment.

Every political opinion can be construed as hate speech, especially when it is judged by a critic. Democrats tried to claim that repealing Obamacare would murder thousands of Americans; why not just go the extra distance and say that the idea of repealing Obamacare is hate speech against people who enjoy Obamacare? What if Republicans said Vermont socialist Bernie Sanders’ diatribes against billionaires are hate speech against wealthy people? This standard can be applied ad nauseam and we would all end up dumber in the process.

America was built on vigorous discourse. The founders didn’t debate issues in perfect civility. They would allege the worst things about their opponents, from tawdry affairs to embarassing parentage. Yet, they realized that ideas such as the Alien and Sedition Act went against the principles of our country and, in rejecting them, upheld the right to say what you believed in.

It’s what makes America great.

People like Richard Stengel believe Americans can’t be trusted with free speech. We should hand over our freedom to condescending liberals like himself in order to “protect democracy.” That’s not democracy—that’s dictatorship with an NPR listener’s face.

In a democracy—in a democratic republic—we must be allowed to express ideas that those in power hate. They don’t have the right to dictate what we are allowed to speak or think.

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