Back in 2006, the Danish newspaper Jyllands-Posten got a lot of heat over publishing cartoons depicting the prophet Mohammed, which is forbidden in Islam. The editors, knowing full well that their decision was provocative, justified themselves quite simply. “Free speech is free speech is free speech. There is no but,” they wrote in an editorial, drawing a rhetorical line in the sand and reasserting that the Western tradition of free thought was far more important than protecting Muslim sensibilities—especially since this was Denmark, and not some Islamic theocracy.

Of course, less than ten years later and in the wake of the Charlie Hebdo massacre in Paris, the people who run Jyllands-Posten decided that discretion—or cowardice—was the better part of valor, and ceased publication of the cartoons on their pages in the hopes that the Islamist crocodile would eat them last. Give them credit, though—rather than inventing some craven excuse, they came out and openly admitted, “We have lived with the fear of a terrorist attack for nine years, and yes, that is the explanation why we do not reprint the cartoons… We are also aware that we therefore bow to violence and intimidation.”

Now say what you will about this episode, but at least the paper had faced the very real possibility that excitable chaps armed with AK-47s might someday storm their offices and shoot the place up—which is a rather good reason to keep your mouth shut. Here in the good old U S of A, however, we have actual journalists these days advocating a muzzle on free speech because it might hurt the feelings of certain aggrieved people, for whom taking offense is less of a response to insult and more of a modus operandi. Case in point: one Richard Stengel of the Washington Post, who with a clickbaity headline attempts to demolish the first pillar of American liberty in one fell swoop:

Why America needs a hate speech law 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.

A fair question? Raised by another country’s blasphemy laws? One wonders if Stengel would have been so accommodating to those who protested Andres Serrano and his rather sordid depictions of Christian symbols.

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.

And in an age when wearing a red hat in certain places can get you cold-cocked, that definition seems rather broad. If the sole determinant of what constitutes hate speech is whether or not it can cause violence, aren’t we also granting a thug’s veto to pretty much anything those thugs don’t particularly like? Sounds like Stengel would feel perfectly at home with his local Antifa chapter.

At any rate, the rest of his argument amounts to little more than the usual boilerplate coming from those who prize their version of civility over civil liberties: The Founding Fathers couldn’t have envisioned the internet and social media, blah blah, the Russians and fake news, blah blah blah, we have a responsibility to protect people, yada yada yada. To top it all off, he finishes with this gem of a non-sequitir:

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.

Um, the values that the First Amendment is designed to protect are pretty clear, assuming you actually read the text: freedom of association, freedom to practice religion as you see fit, freedom of the press to operate unhindered by government regulation, and the freedom to tell that government to shove it and make good when they screw up. Pardon me for being so literal, but it don’t say nuthin’ about fairness, or even due process and equality under the law (although you can look elsewhere in the Constitution for those latter two).

As for anyone who declares that all speech is not equal—well, that’s not someone you can take seriously when he turns right around and adds that he’s all for “protecting thought that we hate.” Simply put, those two notions are not compatible with one another, and evince a kind of doublethink that is Orwellian in its blatancy. Point of fact, Orwell envisioned precisely this kind of scenario in his novel Nineteen Eighty-Four, in which he describes how the omnipresent government tightly controlled language. The masters of society concluded that if people couldn’t express themselves in ways of which the state disapproved, eventually they would lose the capacity to even think in ways of which the state disapproved. What Stengel proposes here bears a striking similarity to that form of totalitarianism, albeit softened in the guise of tolerance.

What Stengel also doesn’t make clear is who gets to determine what is hateful, and by what objective standards such judgments could be made. That’s because there can be no objective standard. Offense doesn’t need to be deliberately given in order to be taken—and it’s not as if specious claims of bad faith don’t get tossed about regularly in our discourse these days. Besides, the regime Stengel proposes would be subject to the whims of whoever happens to be holding power at the time. Would he really want President Trump to be the one who gets to decide whether the Washington Post is pushing fake news?

I happen to believe that media bias is one of the single greatest threats our democracy faces. It leaves news organizations vulnerable to sensational stories that have no basis in fact, because they happen to fit the media’s preferred narrative. Bias also leads the media to hype certain stories and bury others, depending upon how those stories advance a favored political or social agenda, which leaves the public ill informed on crucial issues and ill equipped to function as good citizens. Most nefariously, however, bias also contributes to the polarization of the country—pitting liberals and conservatives against one another not only as political rivals with differing policy preferences, but also as enemies who harbor evil motives. Does that mean I would advocate a law that requires the media to be fair and balanced in their reporting, though? The answer to that is a hearty hell no.

That’s because as much as I want the news media to do their jobs, and how important it is for them to do so, I also believe in the absolute right to free speech. Any law that would abridge that right is not only misguided but dangerous. Messy as it can be, the open exchange of ideas is the only way to ensure all the other rights we hold to be self-evident—and once free speech is eroded, the rest of our freedoms will quickly follow suit.



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