I guess if you don’t really rely on the First Amendment as much as you used to, it’s cool to tell everyone else these protections are overrated. That seems to be Richard Stengel’s take on this important Constitutional amendment. The former Time editor and State Department undersecretary has written an op-ed for the Washington Post that says we Americans perhaps enjoy too much free speech.

Stengel’s piece starts out rationally enough as he remembers his time as a First Amendment beneficiary.

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.”

Speech that everyone likes doesn’t need to be protected. It kind of takes care of itself. Speech people may find offensive still needs protection from the government. If we don’t have that, we’re just another totalitarian state where citizens and journalists only utter/publish government-approved speech.

It wasn’t until Stengel’s stint as a government employee that he began to question the benefits of the First Amendment. Weird how that works.

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?

One man’s religious text is another man’s tinder. As a government employee, perhaps Stengel could have defended this right rather than question it. If the government isn’t allowed to pick an official religion, all religious texts should be considered flammable. If you start by outlawing the burning of the Koran, you’ll have to ban burning the Bible, the Book of Mormon, and anything L. Ron Hubbard has written. Is that what Stengel wants? A hate-free solution that makes every religion’s assertions unmockable and unchallengable? Because that’s what banning burning certain books will do.

Now that’s he out of the journalism biz, Stengel considers free speech to be a “design flaw” in an era where “everyone has a megaphone.” Stengel is drawing an arbitrary line between the present and the past, saying that free speech prior to the rise of social media was good and worth protecting. The internet’s “megaphone” has somehow made speech less worthy of protection.

According to Stengel, the First Amendment used to protect the correct amount of speech. Now, it protects too much.

[T]he 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.

Ah. Pining for a “simpler era.” A time when people still owned slaves and women couldn’t vote and journalists had limited reach and the government had most of the megaphones.

What’s really bothering Stengel isn’t the First Amendment, even if he really seems to think he’s got something worth saying about free speech. Instead, Stengel starts talking about “fake news” and election interference. Stengel calls for less free speech using examples that don’t have much to do with the First Amendment.

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.

Stengel is conflating moderation efforts (or lack thereof) by private companies with the First Amendment. If Facebook and Twitter did little to police “false” stories, that’s on those companies. Dragging the First Amendment into a critique of election interference efforts by a foreign nation makes no sense. It only makes sense if you’re trying to make the case the First Amendment needs to be overhauled, but can’t actually find enough examples of speech you think should be regulated.

From there, Stengel moves on to “hate speech.” He says this “enables discrimination” and “diminishes tolerance.” He’s not wrong. It also has the power to nudge people towards acts of violence. But should it be outlawed? That’s the question Stengel almost answered earlier, when asked by residents of countries with severe speech restrictions why the US would allow people to burn the Koran. He had no answer then. He thinks he has an answer now. But he doesn’t.

Instead of offering a solution, Stengel poses a rhetorical question and suggests states just start crafting speech-limiting legislation.

Isn’t [hate speech], 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?

Yes. Let’s start “experimenting” with First Amendment protections. Let’s turn the United States into a patchwork of speech laws and unleash that on the connected internet so people living in states with better speech laws can be prosecuted by states with worse speech laws just because the offense took place wherever the offended person saw it. That doesn’t sound like America to me. That sounds like Turkey — a nation where the rules for speech are written by the people with the most power and the thinnest skin.

If some jerk in Texas offends someone in Massachusetts, let’s give the state with more speech restrictions the power to enforce judgments against other people whose speech isn’t illegal where they live. Or vice versa, let’s allow some offended person in a state without restrictive hate speech laws use another state’s laws to punish someone for their “hate.” A fiefdom in every state and an Erdogan in every home. That’s one hell of a slogan.

Stengel signs off with a paragraph that may as well have been penned by George Orwell.

All speech is not equal.

Some speech is more equal than others.

And where truth cannot drive out lies, we must add new guardrails.

Perhaps by establishing a Ministry of Truth.

I’m all for protecting “thought that we hate,” but not speech that incites hate.

And we’ll leave that up to the creativity of fifty different legislatures, all with their own agendas to push and their own ideas of what constitutes “hate.” And once they’ve started poking holes in one Constitutional protection, they can move on to the others.

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