Arguing in favor of Elizabeth Warren’s promised curbs on speech, congressional Punjabi (and affirmative-action asterisk law professor) Ro Khanna tweeted, “Falsity has never been part of our 1st Amendment tradition.” In fact, that’s 100% ass backwards; John Adams, James Madison and Thomas Jefferson* agreed that the “misuse” of speech is an inevitable and tolerable aspect of our First Amendment rights. Last week, Warren announced a “plan of action” to curb “digital disinformation.” The plan features “civil and criminal penalties” for “knowingly disseminating” content that “has the explicit purpose of undermining the basic right to vote.” Any speech that might “depress voter turnout” would be criminalized. Warren’s plan follows months of pontificating by mainstream journalists in the service of criminalizing political speech. “Why America Needs a Hate Speech Law” was the title of an October WaPo piece by Richard Stengel.
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 (Obama years), writing in the Washington Post, October 29, 2019: 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. (My note: That court case upheld Ohio’s Criminal Syndicalism Act, which punishes persons who “advocate or teach the duty, necessity, or propriety” of violence “as a means of accomplishing industrial or political reform”; or who publish or circulate or display any book or paper containing such advocacy; or who “justify” the commission of violent acts “with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism”; or who “voluntarily assemble” with a group formed “to teach or advocate the doctrines of criminal syndicalism.”) Khanna continues: 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.
All current attempts to stifle speech in the name of protecting feelings, and all current scare campaigns about how unregulated speech inevitably leads to bad and destructive outcomes, owe their existence to the acceptance by Western whites of a set of “special circumstances” whereby traditional notions of “fight speech with more speech” and “let truth and falsehood battle it out” and “sticks and stones may break my bones but words’ll never hurt me” don’t apply to really horrific tyranny, torture and murder, like Holocaust history and Holocaust survivors.
But the end result of speech criminalization is that Rational voices go silent, because rational people—capable as they are of weighing actions and consequences—do the math and realize that it’s more prudent to pull back and shut up, when speaking freely might cost them their livelihood or freedom. What happened with Holocaust history is already beginning to happen with topics like male/female biology and IQ inheritability. Anyone with anything to lose will think twice before challenging the left’s orthodoxy on those topics. That’s what speech penalties do; they scare away exactly the people with the intellectual capacity to best make the case that the penalizers don’t want made. And once a field is abandoned to crackpots who spout nonsense, the public becomes even more welcoming of speech proscriptions, due to the general loathsomeness of those being silenced. Right now in the West, we’re scared to death of speech. The fact that a presidential candidate for a major U.S. political party could run on a platform of curbing speech in order to “save democracy” shows just how bad things are.
Will there ever again be U.S. Presidents like J. Adams, Jefferson or Madison? I am not optimistic. *”If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” Thomas Jefferson. “Our First Amendment freedoms give us the right to think what we like and say what we please. And if we the people are to govern ourselves, we must have these rights, even if they are misused by a minority.” John Adams. “For the people to rule wisely, they must be free to think and speak without fear of reprisal.” James Madison.