Post Opinion: America needs a hate speech law

Tuesday the Washington Post published an opinion piece by former Time magazine editor Richard Stengel. In addition to being a journalist, Stengel later worked in the State Department from 2013 to 2016. He says it’s the latter experience which made him question the wisdom of the First Amendment:

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?

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.

What he’s endorsing here is, of course, the heckler’s veto. No one should be allowed to insult Islam or burn a Koran or draw a cartoon of the prophet because that might “cause violence.” And indeed it has caused violence. Sadly, the lesson Stengel takes from incidents like the Charlie Hebdo massacre in Paris is that they shouldn’t have been allowed by law to doodle someone else’s religious figure. By doing so, they caused the violence that killed 12 people. It wasn’t the terrorists’ fault, it was the cartoonists. No doubt there are a lot of religious extremists and a few would-be terrorists who would agree with Stengel.

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.

He’s wrong about the level playing field. Social media makes the playing field far more level for more people than it has ever been. The problem isn’t the playing field, it’s that there are a lot of people in the world, many of whom have a lot of ideas we don’t like. And now, because of social media, those people are able to make themselves heard.

It’s true that real people don’t automatically jump from bad ideas to good ones. Sometimes they jump the opposite way and sometimes they refuse to adopt good ones for other reasons having to do with self-perception or tribalism. Cultural cognition is real and is a serious challenge to the idea that the marketplace of ideas will automatically result in better ideas and better people.

But the alternative, a government-regulated market in which some things cannot be said, guarantees that some important truths will never be spoken to people who should hear them. Criticisms of the Koran or the Bible from inside or outside those faiths should never be limited. People have a right to their own beliefs but shouldn’t have a right to keep them insulated from other people’s ideas in public.

It’s tempting to imagine being able to make groups like the KKK illegal with the stroke of a pen and thereby stamping them out. But would it really stamp them out or would it just add a thrill of the forbidden to them? I don’t think this possibility can be minimized. Part of what people who join extremist groups are looking for is a sense of transgressing polite boundaries. Making such speech illegal would only make it that much more appealing to some.

Stengel began his piece by talking about “sophisticated Arab diplomats” who wonder what benefit can possibly come from the First Amendment. I would ask Stengel this question: By limiting speech, have the countries those diplomats represent eliminated violent extremism? Have they eliminated anti-Semitism? Have they ensured civil rights for women? For gay citizens? I don’t know what countries he has in mind but I think it’s likely the answer to all of the above questions is no.

That’s not a coincidence. Once you’ve accepted that some ideas should not be spoken, that principle will inevitably go beyond the Koran as an object to the ideas contained in the Koran. Ideas about women, men, sex, freedom, good, evil, etc. Freedom of speech is messy and sometimes even counter-productive but it’s still better for individuals and for societies than the alternative.