Those crazy "PATRIOTIC" Democrats: Free Speech Edition

another installment:

https://www.washingtonpost.com/opinions/2019/10/29/why-america-needs-hate-speech-law/

Why America needs a hate speech law


Thousands of protesters march against a planned 'Free Speech Rally" on Aug. 19, 2017, in Boston. (Spencer Platt/Getty Images)

By Richard Stengel
Oct. 29, 2019 at 8:20 a.m. EDT
Richard Stengel, a former editor of Time, is the author of “Information Wars” and was the State Department’s undersecretary for public diplomacy and public affairs from 2013 to 2016.

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?

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.

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. In the weeks 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.

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.

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.

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.

I 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?

Let the debate begin. 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?

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.
​

 

not really compelling. in essence he's saying free speech only applies to wooden printing presses and broadsides inked on rag paper. he probably thinks the 2nd amendment only applies to muskets

 

guess I got thrown off by this:

"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."

 

guess I got thrown off further by this:

"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."

 

lol

 

if the antecedent to the pronoun "this" is the time at which the first amendment was written, sure, one cannot debate the historical fact that the Bill of Rights date to 1791.

But if "this" refers to the overall argument -- sure it's debatable. Consider this passage:

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.​

John Sexton responds:

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.
​

Now, obviously there are caveats. Sexton continues:

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.​

So I think there's a lot of room here for debate. I think the Stengel piece is wildly misguided and badly argued. I disagree strongly with the implication that "freedom of speech" meant something different 200-300 years ago than it does today. I disagree even more strongly with the argument that states should "experiment with their own version of hate speech statutes to penalize speech that deliberately insults people based on religion, race, ethnicity and sexual orientation." There's a difference between harm and offense, and such "experimentation" would quickly affect everything from comedians' acts to offhand comments made in everyday contexts.

 

I get that. I agree the call to regulate speech (hate or otherwise) is a bad idea. But I disagree that there's anything unique about the modern spread of misinformation (due to technology or the internet or social media) compared with say, colonial American, where witch hysteria as a form of hate speech could get twenty people hung and one guy pressed to death. There's nothing necessarily "new" about human nature is I guess all I'm saying.

 

more discussion at NR. an excerpt:

It’s interesting how Stengel actually does acknowledge the fact that “there’s no agreed-upon definition of what hate speech actually is,” and yet he still wants laws banning it. This makes absolutely no sense. After all, when he calls for laws to ban “hate speech,” he is, inherently, giving the government the power to decide what would and would not qualify — the exact same government that is led by Donald Trump, and that is full of people who support him.

In other words: Stengel somehow trusts that the government will have the same view of “hate speech” as he does, and then, in the same thought, seems to acknowledge that there’s actually no way that many of them would. Unless he thinks that the president and his congressional supporters would actually pass a law that they’d be in violation of, his argument for “hate speech” laws winds up being a pretty great argument against them.

It’s ironic, but it’s not new: More often than not, it’s the uber-progressives arguing for laws against “hate speech” — despite the fact that they’re often the same people who are also arguing that Donald Trump and Republicans are constantly spewing it. Maybe it’s just me, but if I thought that the leader of my government was, you know, literally Hitler or whatever, the last thing that I’d want would be to give that person and their supporters control over my speech.

Yes, the First Amendment gives us the right to be “offensive” with our speech. Given the fact that a new thing seems to be declared “racist” or “sexist” every day, I’m certainly glad that we do have this protection. After all, it would only take there being a few too many of the “super woke” in our government for a phrase like “you guys” to become a criminal offense.

The truth is, though, the right to be “offensive” (however you define that subjective term, anyway) is not even the most important role that our First Amendment plays. No, what’s most important is that it protects our right to speak out against the government when we see fit — without having to worry about its retaliation. Like it or not, the only way to ensure that we retain this important check on government power is to never (ever) give its leaders a vehicle take it away.​

https://www.nationalreview.com/2019...rump-might-violate-them-and-misses-the-irony/