“We must add new guardrails”: Biden transition team official wrote op-ed asking for hate speech laws

Two tweets disturbed me this morning, both calling attention to Richard Stengel‘s anti-free speech column in the Washington Post last October. Stengel is a writer and government official who was editor of Time magazine and also worked as Undersecretary of State during the Obama administration. Now he’s on the Biden transition team for the U.S. Agency for Global Media, though I’m not sure exactly what that job involves.

(The “ACLU retreats from free expression” piece mentioned in the tweet below was written by Wendy Kaminer in the Wall Street Journal in June, 2018, and access isn’t free.  I’ve been saying that same thing for a while though, and I’ll try to get my hands on it. It is true that the ACLU is taking some alarmingly regressive steps.)

At any rate, a bit over a year ago Stengel—and remember, he’s on the media part of Biden’s transition team—wrote this op-ed. Click on the screenshot to read it.

Stengel’s contention is that the First Amendment is outmoded, especially in an age of social media, for there is no guarantee that “truth will drive out lies” now. But when was there ever a guarantee? Here’s what he says:

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 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.

Of course there’s no guarantee that the truth will drive out lies: Trump’s falsehoods have been widely believed, but of course the media has exposed them as lies. It’s the free press that allows this exposure, but it can’t guarantee that everyone is going for the “truth” side. If that were the case, there would be no religions! And there’s nothing all that different about social media: there has always been media in which people have told untruths. It’s just now that media is available to everyone, who can put up their merest thoughts in an instant.

Still, the clash of opinion on things like abortion, the Israel/Palestine question, affirmative action, gun control and the like are the only ways to give both sides an airing and to propound their best arguments. The rest is up to the people. If you don’t have this clash of ideas because one side claims that it KNOWS THE TRUTH and will censor the other side, then we’re truly doomed. Allowing someone to determine the truth is the surest way to guarantee that the truth becomes one person’s opinion. And this is the whole problem with Stengel’s attack on the First Amendment and push for “hate speech”—which he sees as speech that people find insulting to their race, religion, ethnicity, and sexual orientation:

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?

It could, but it also outs those who are bigots and allows us to see their arguments. If arguments for bigotry win, then we have no chance as a democracy, anyway. And there are already laws, as Stengel says, against speech that incites violence—if the violence is imminent and predictable. If the violence could result much later from someone’s speech, then people like Richard Dawkins could be (and have been) accused of pulling the trigger, for Dawkins is an anti-theist who attacks religion in general, including Islam. If some crazed Muslim-hater reads Dawkins or Hitchens and goes on a killing spree, does that make them responsible, and should their works have been censored because they offend believers? No, because we can’t predict or fend off everything that could result from speech. We might as well ban Evangelical Christianity because the Bible, and their preachings, have led to the killing of abortion doctors and the demonization of homosexuals.

Stengel:

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.

Yes, Stengel is a Pecksniff who wants hate speech laws, but is curiously silent about who will make them? Who will be The Decider? We all know the problems with that, and they are pretty much insuperable. For every Biden official who disallows criticism of Black Lives Matter and Islam, there will be a later Trumpy official who criminalizes speech that liberals favor. The best solution is to allow everyone to say their piece, with a reasonable few exceptions that the courts have carved out as outweighing free speech (false advertising, defamation, harassment of individuals, and so on).

You know what my worries are: that Stengel will influence and also reflect a general censorious wokeness on the part of the new Biden administration. Granted, this editorial was written over a year ago, but I think it’s fair to ask Stengel if he still stands by it. If he does, then we should keep a weather eye on his behavior—and that of the Biden administration’s actions about speech.

83 Comments

  1. rickflick
    Posted November 16, 2020 at 12:05 pm | Permalink

    Sounds like we are on a slippery slope. I little hate speech quietly slips over the edge. Yes, I think I’d rather see hate speech than see that happen.

  2. Posted November 16, 2020 at 12:11 pm | Permalink

    The Stengel piece is either badly written, or sneakily written:

    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.

    So if one group responds to fair comment with violence, then Stengel wants to disallow the fair comment. So anyone could shut down “thought that [they] hate” simply by threatening violence. Is that what he meant?

    Later on, the test he applies is not “violence”, but the weaker one of “insult”. He wants:

    … hate speech statutes to penalize speech that deliberately insults people based on religion, race, ethnicity and sexual orientation.

    But who gets to decide what is insulting? Is this even greater licence for anyone to shut down “thought that [they] hate” merely by claiming that it is insulting?

    As ever, people who argue like this are not actually in favour of free speech.

    • Kurt Noll
      Posted November 16, 2020 at 1:34 pm | Permalink

      Coel writes, “But who gets to decide what is insulting?”

      The is the correct question, the one that too often fails to be asked.

      If each of us has the right to freedom of speech, then logically no one among us is able to have a right to freedom from insult.

  3. flayman
    Posted November 16, 2020 at 12:11 pm | Permalink

    Isn’t it interesting that Justice Alito, newly armed with a clear conservative majority, recently made a speech to the Federalist Society in which he states that protecting freedom of speech will be one of the Supreme Court’s greatest challenges?https://www.npr.org/2020/11/13/934666499/justice-alito-pandemic-has-brought-unimaginable-restrictions-on-freedoms?t=1605550062473

    Though probably not in a way that would make you feel reassured.

  4. EB
    Posted November 16, 2020 at 12:18 pm | Permalink

    I predict that if any state tried to pass restrictions on insulting speech, Americans of all stripes would engage in civil disobedience to such an overwhelming extent that the law would be overturned quickly. It might even be a healthy experiment, from a civics point of view, as it would reveal a shared commitment among Americans to battling the forces of illegitimate authority. Free speech is what makes the USA the greatest country on earth, and every citizen appreciates this. We have the optimal policy on free speech. No need to fiddle with what ain’t broke.

    • Posted November 16, 2020 at 12:29 pm | Permalink

      I don’t think Americans would revolt, mainly because I don’t think they really understand the importance of free speech or of the First Amendment.

    • flayman
      Posted November 16, 2020 at 1:15 pm | Permalink

      If the USA ever really was the greatest country on earth, it has been a very long time since it could credibly lay claim to that title. The biggest problem with America is that too many Americans assume they are part of the greatest country on earth and do not exercise vigilance.

      Americans have no idea what free speech really means. They know about the First Amendment but not what it’s for. The don’t know about Oliver Wendel Holmes or Brandenburg v Ohio or Schenck and Abrams which it overturned. And they don’t care as long as nothing changes which would affect them. A few years ago a county prosecutor in Texas charged a kid named Justin Carter with terroristic offences for obviously joking about something on Facebook in a case which dragged on for three years before it was finally settled on a misdemeanor plea. This happens in spite of the First Amendment, and a lot of people would think it was fine.

      The best hope America has right now to preserve First Amendment principals, unfortunately, is the Supreme Court majority.

    • Ken Kukec
      Posted November 16, 2020 at 1:36 pm | Permalink

      I fear you overestimate the average American’s tolerance for speech he or she finds personally detestable.

    • Sastra
      Posted November 16, 2020 at 3:22 pm | Permalink

      The first “hate speech” laws will target strong examples. Horrible racist screeds and intense, sickening episodes of bullying will be used as illustrations of what is legally forbidden. The general public will nod and go along.

      Then it will slowly creep.

  5. savage
    Posted November 16, 2020 at 12:21 pm | Permalink

    > For every Biden official who disallows criticism of Black Lives Matter and Islam, there will be a later Trumpy official who criminalizes speech that liberals don’t like.

    Nope. The right is far too feckless for that. Achieved nothing in that area at all (which conservative groups is it
    “bigoted” to criticize?). And with its pathetic support among lawyers and judges, any such proposal would be an idle threat. So expect the woke to bulldoze freedom of expression.

    • Saul Sorrell-Till
      Posted November 16, 2020 at 12:37 pm | Permalink

      There’s a lot to argue with in that comment, but re. “which conservative groups is it
      “bigoted” to criticize?”

      Well, according to conservatives pretty much every single group. Christians. Trump supporters. The police. The right have developed a gigantic persecution complex and rally to the cause with incredible speed as soon as anyone in the mainstream liberal media dares to venture that, say, Trump supporters might have failed a moral test when they supported a lunatic for four years. They have plenty of feck in my opinion.

      Think about the criticism Clinton received for calling a segment of Trump’s base deplorable. The right were so outraged you’d think their Mexican maid had stolen from them.

      • davelenny
        Posted November 16, 2020 at 1:15 pm | Permalink

        Just yesterday a comment on this website claimed, without qualification, that Trump’s 70m voters were racists motivated by bigotry. That’s pretty insulting. Sounds like hate speech to me. 🙂

        • davelenny
          Posted November 16, 2020 at 1:30 pm | Permalink

          On second thoughts, probably the day before yesterday, but WP doesn’t allow editing.

      • savage
        Posted November 16, 2020 at 1:45 pm | Permalink

        But I could say almost anything against Evangelical Christians or Blue Lives Matter etc. and it will not ruin my career nor lead to a Twitter ban. As it shouldn’t. Yet the reverse is not true, while e.g. “kill all white men” would never be treated as hate speech.

        • Posted November 16, 2020 at 3:02 pm | Permalink

          In the UK, a public statement that “White lives matter” got someone sacked.

          But the public statement “White lives don’t matter” by an academic led to their employer issuing a statement supporting their free speech.

  6. Saul Sorrell-Till
    Posted November 16, 2020 at 12:29 pm | Permalink

    I’ve spoken about this before, but I do not see that the same arguments in defense of free speech in real life carry as much force when they relate to free speech online.

    Eg.: PCC’s objection to the original contention that ‘hateful speech creates a climate where violence is more likely’…PCC says

    “It could, but it also outs those who are bigots…”

    This is perfectly reasonable in the real world. But it carries little weight when we go online. The bigots are not outed, they’re anonymous. In fact almost none of the social consequences that accrue when someone starts hurling violent, hateful rhetoric in the real world(eg. losing your job, people steer clear of you, family and friends grow distant) have any effect on an anonymous sockpuppet account. They are bulletproof. They can spam thousands of death threats a day and absolutely nothing of any consequence happens to them at all, beyond perhaps having to create a new sockpuppet account.

    This is an unprecedented phenomenon in human history: millions of people can suddenly say anything they want completely unconstrained by They can send death threats, they can doxx people, post photoshopped images of their victims’ families being murdered, they can simply flood the online space with hatred and lies, and by doing so suppress, either through sheer volume or through physical threats, the arguments from more reasonable people…and there are no consequences.
    It’s only when they’re not there that you realise how crucial the invisible guardrails of social ostracism and damage to a person’s reputation are in ensuring that freedom of speech works properly. In a space where those guardrails don’t exist – because everyone’s anonymous – the only law is that the loudest, most violent and hateful people generally win.

    I do not know how to solve this problem of online speech – I agree with PCC that censorship is a no-go. My suggestions would be more along the lines of forcing commenters to take responsibility for what they say by mandating real names, at least when they’re commenting in the most important, influential online spaces. There would remain fora for anonymous discussion but it would be the exception not the rule. I’d be interested in hearing if PCC’s arguments are in any way different when it comes to anonymous, online hate speech: I don’t think the same free speech arguments work simultaneously in both the real and online world – the idea that we can bring the racists and bigots into the open by arguing with them breaks down when the racist and bigot is just a Pepe profile called ‘EmperorKek69’ rather than a real person who has to take responsibility for what they’ve just said.

    • BJ
      Posted November 16, 2020 at 12:40 pm | Permalink

      I don’t know what the solution is either and agree that censorship is a non-starter, but making people’s names public is also not acceptable to me. If I was forced to use my own name on this website, I would not comment. Disagreeing with the progressive orthodoxy will get you blacklisted in many places. Many important places, like universities, graduate schools, lucrative employment opportunities, and others. It would stifle free speech, not because we wouldn’t be pseudonymous, but because one side has a ton of institutional power and is wielding it to silence anyone who criticizes its sacred cows (which seem to change and become more extreme day by day, meaning something that is acceptable to say today may be retroactively decided to be unacceptable tomorrow).

      • Saul Sorrell-Till
        Posted November 16, 2020 at 1:07 pm | Permalink

        I think it’s plausible that the anonymous trolls who pile in on some white student for having dreadlocks would be just as wary of inciting a witch-hunt if their name was out there too. If they couldn’t just destroy someone’s livelihood without consequence either. It works both ways.

        And right now we have a situation where a huge number of people simply stay off the internet, don’t post their thoughts at all, because they know a cloud of caps-locked invective will descend on them as soon as they post anything on a certain topic.
        I look at the comments on topics like race in places like YouTube and I just don’t bother. I’d be a drop in the ocean against the tide of anonymous racist trolls.
        I go to YT to look at MSM news videos about Biden’s win – the like ratios are sometimes ten-to-one against. I go BTL and there are literally no comments in support of Biden in the first two pages I scroll down. This, after he won the popular vote by five million.

        It can’t go on like this, and besides that it won’t go on like this. The question is how it gets dealt with: either through big tech censoring people according to which side has lobbied them hard enough…or by people accepting that reasonable, human dialogue can only be had when people take some responsibility for what they say. I’d much rather it was the latter.

    • Paul Topping
      Posted November 16, 2020 at 1:46 pm | Permalink

      Anonymity is certainly a big part of the problem but I suspect there is a case to be made for being anonymous as well. Perhaps some system would work where, if you post anonymously, you are subject to censure. Or if you say something that breaks some rules, your identity is exposed. Perhaps decisions can be appealed.

      • savage
        Posted November 16, 2020 at 7:01 pm | Permalink

        What’s so scary about honesty? Anonymity allows people to say what they really think.

    • savage
      Posted November 16, 2020 at 1:55 pm | Permalink

      Users of sockpuppets are obviously in a very weak position, otherwise they would not need to hide so much. Posting frog memes on fringe websites most voters have never heard of doesn’t sound dangerous to me at all. Which makes it all the more interesting that there is so much agreement that this must be stopped.

    • eric
      Posted November 16, 2020 at 2:36 pm | Permalink

      I mostly agree. I think there are several areas where the nation would be helped by a serious conversation:

      1. Anonymous speech

      2. The rise of private spaces that act as ‘public meeting places’.

      3. So-called “stochastic terrorism” (i.e. the notion that vaguely inciteful speech leads to a statistical increase in violence, even if it’s not direct enough to be considered legal incitement.)

      I am not promoting censorship. Rather, I think we need to have a serious national conversation about these things to avoid censorship. I.e. to figure out what other possible solutions might exist so that we can keep our freedom of speech while (example of #2) not giving corporate entities censorship over popular meeting places or (example of #3) keeping rates of physical violence low.

      • Posted November 16, 2020 at 3:07 pm | Permalink

        Companies (at least those with large market share in their niche) should be required to provide service to people regardless of their political or other opinions.

        After all, if companies can (rightly) be required to provide service to people regardless of their race, religion and sexuality, why not add in “expression of opinion” as a protected civil right, that companies may not discriminate against?

        • eric
          Posted November 16, 2020 at 5:58 pm | Permalink

          That’s one possible solution. It’s not a bad one, but the consequences would be facebook etc. filled with hate speech and nazi groups.

          Still, as long as one set of people can’t spam anyone else (i.e. something like an invite required to post), it might be better than the alternative of Facebook deciding what speech is too offensive to be posted.

          This is the sort of things we need to discuss as a nation; what are the potential solutions, what are the up sides and downsides of each, etc.

  7. Gary Gautier
    Posted November 16, 2020 at 12:33 pm | Permalink

    “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.” If that’s Stengel’s rationale for pulling back the 1st Amendment, it sounds exactly like China’s rationale for the new “security” law restricting speech in Hong Kong.

    • Vaal
      Posted November 16, 2020 at 1:11 pm | Permalink

      Yep.

      And who decides who are the “good guys” and the “bad guys?”

      Right now each 1/2 of America thinks they are the good guys and the others are the bad guys.

      Right there it should show the danger of this limit to free speech approach, which depends on claiming The Good and The True by which to censor those who disagree as “bad guys” not worthy of being heard.

      “I’m in support of free speech as long as it aligns with The Truth As I See It” isn’t exactly a ringing endorsement of Free Speech.

  8. BJ
    Posted November 16, 2020 at 12:36 pm | Permalink

    With organizations as old as the ACLU and now the Democratic Party slowly retreating from protecting free speech — one of our most sacred and critical rights — I fear for the future of this nation. Biden was our “centrist” choice. If he’s just going to be a puppet of the more extreme wing of the Party, then this didn’t work out for people like me. Instead of promising to install department heads who are qualified, he’s promising to install people who are of a certain sex, gender, or race. Instead of having people on his transition team dedicated to protecting rights like free speech, he has someone like this dolt.

    I’ve often wondered over the past few months about what the media and city/state responses would have been if it was Right-wingers and conservatives rioting, burning down buildings, cordoning off entire blocks in cities, blocking streets and threatening people who tried to get through with guns, etc. If we’re being honest with ourselves, I think we can agree that the responses would have been very different, if not the exact opposite of what they were and continue to be. The mayors and governors would have been calling in every cop and directing them to clamp down hard on the protestors, and governors in states like Oregon would be calling in the National Guard to put down its several months of rioting.

    But, because the media and these mayors and governors saw the rioters as being “on the right side of history,” they let it go. The number one responsibility of a government is to ensure the rights and liberties of its citizens. Sometimes this means fighting for rights legally, as it does with free speech and articles like the op-ed alluded to above. Sometimes it involves fighting in wars. Sometimes it involves using the police force and, when that isn’t enough, even National Guard to ensure that the citizens in your city aren’t living in constant fear of being accosted, assaulted, or worse. The people of our country have a right to their speech, and they have a right to live without fear while walking down the street. They also have a right to protest, but peacefully; they do not have a right to riot, cause billions in property damage, destroy small businesses, assault people, and leave people caged in their homes because they’ve established an “autonomous zone.” In places like Portland, many people haven’t been able to leave their homes on many days without fear of being assaulted or worse, but the mayor and governor did nothing, and the media had little to no criticism for the rioters. Again, would that have been the case if these people were rioting for, say, an end to abortion, or reducing gun control, or similar issues? Would it have been the case if they had been rioting for the right to free speech, should it have been seriously encroached upon? The answer, I feel, is almost certainly “no.”

    The extremes of each side are taking increasing hold of their parties. Unless we come up with a legitimately competitive centrist third party, I fear that this increasing polarization and acceleration toward the extremes will continue. I don’t know what to do or who I should look to anymore. I’m starting to feel hopeless, despite feeling so hopeful just a little over a week ago.

    • Historian
      Posted November 16, 2020 at 12:49 pm | Permalink

      I think it is wee bit early to make alarmist claims that Biden is “going to be a puppet of the more extreme wing of the Party.”

      You may not agree with Stengel’s view on this issue, but if you had taken the time to research his background, you would have seen he is far from being a dolt.

      • Vaal
        Posted November 16, 2020 at 1:17 pm | Permalink

        I was going to say the same, Historian. I don’t think we should jump the gun to the “Biden will be a puppet” meme.

        Let’s give him a chance.

        It seems already there is some awareness even among Dem politicians that the left went too far with identity politics, “defund the police” movements and dismissing the concerns of Trump voters as being all about racism etc. And you can certainly see plenty of pushback happening against it in society (one bellwether being the comment sections of the NYT: Whenever they post another article imbued with Critical Race Theory/intersectionality/identity politics theme, there seems to be ever more thoughtful criticism in the comments)

      • Paul Topping
        Posted November 16, 2020 at 1:50 pm | Permalink

        If Biden currently thinks he has to appeal to the Far Left in his party, I hope he only does it with token gestures like taking on this guy as an adviser. If he starts taking actions with a Far Left tinge, he’s going to get some serious pushback from others in his party. As you say, Historian, it is too early to decide but we are watching.

        • Historian
          Posted November 16, 2020 at 2:02 pm | Permalink

          You should take a look at Stengel’s entry in Wikipedia. Although I don’t think you believe Stengel is a far leftist, it is rather absurd by some to attempt to pin that label on a person that was the editor of Time Magazine as noted in this post and Wikipedia.

          https://en.wikipedia.org/wiki/Richard_Stengel

          • Paul Topping
            Posted November 16, 2020 at 3:41 pm | Permalink

            Maybe but people change and sometimes get taken in by a radical set of ideas. Here’s a journalist apparently thinking that banning hate speech might be more important than maintaining freedom of speech.

      • BJ
        Posted November 16, 2020 at 4:47 pm | Permalink

        (1) I said “IF”

        (2) You’re being deliberately obtuse with regard to my comment on Stengel being a “dolt.” I was obviously referring to his views on one of our essential Constitutional rights, not his general intelligence

    • Ken Kukec
      Posted November 16, 2020 at 2:02 pm | Permalink

      I’ve often wondered over the past few months about what the media and city/state responses would have been if it was Right-wingers and conservatives rioting, burning down buildings, cordoning off entire blocks in cities, blocking streets and threatening people who tried to get through with guns, etc. If we’re being honest with ourselves, I think we can agree that the responses would have been very different …

      I dunno, Beej, I’ve often wondered what would’ve happened had the Black Panthers barged into the Michigan state capitol bearing AR-15s, and Obama had responded by tweeting out “Liberate Michigan!” Or if members of that group had plotted to kidnap and kill the Michigan governor and Obama had failed to respond with a ringing denouncement.

      I’ve also wondered what the reaction would’ve been had vehicles festooned with Black Lives Matter regalia tried to run a Trump/Pence campaign bus off a Texas highway.

      • Paul Topping
        Posted November 16, 2020 at 3:42 pm | Permalink

        “I’ve also wondered what the reaction would’ve been had vehicles festooned with Black Lives Matter regalia tried to run a Trump/Pence campaign bus off a Texas highway.”

        I’d pay to have seen that!

      • BJ
        Posted November 16, 2020 at 4:51 pm | Permalink

        Using two incidents that happened on two days and contrasting it with several months of rioting, tens of billions of dollars worth of damage, numerous assaults, some murders, and police being assassinated? This isn’t a great argument.

        • Ken Kukec
          Posted November 16, 2020 at 6:24 pm | Permalink

          This isn’t a great argument.

          I didn’t propound it as an “argument,” BJ; I propounded it as a counterexample. There could have been others as well.

          You seemed to be suggesting that the double standard is a one-way street; I’m suggesting it isn’t. It would be swell if everyone and every incident were adjudged by a single standard. But quite obviously, and for quite obvious historical reasons, they are not. Sometimes this works to the detriment of one side, sometimes to the detriment of the other.

          And, FWIW, I don’t think you can pass off an elaborate scheme to kidnap, subject to some type of mock “trial,” and then execute the governor of a US state a simple one-day incident. Had the perpetrators been Black Panthers, as I supposed, millions of white people across this land would’ve been scared shitless. And the right-wing media would have had a field day with it for months. Yet because they were white militia types, the president of the United States, and his media enablers, essentially ignored it where they could and minimized when they couldn’t — thereby tacitly encouraging such conduct.

  9. Randall Schenck
    Posted November 16, 2020 at 12:46 pm | Permalink

    The concern should not be about hate speech such as bigoted statements against any groups. The concern should be with on line misinformation, stuff that is obviously wrong or just lies. What we already know is people are not adult enough to know the difference. If you think this is not the case look at the marching in Washington going on right now for Trump. These people are certain that the system screwed their candidate. Rudy is on Fox TV pushing many lies about voting fraud that is not true and in fact, most of them have already been thrown out of court. But that does not stop Rudy. He goes right back on TV with the same lies. Are we so confident in free speech that nothing gets done to stop this?

    • flayman
      Posted November 16, 2020 at 1:35 pm | Permalink

      The First Amendment protects the right to misinform. It evolved out of pre-revolutionary pamphleteering designed to manipulate the populace into taking action in defiance of Parliament. History has given this the gloss of virtue. It does not protect any sort of right to receive accurate information. It will not aid us in stopping Trump and Giuliani from telling their stories. It is up to us to be responsible for what we see and read and to be critical of it, something that people are generally too lazy to do. It’s the reason why it is essential that the internet is treated as a public service and that companies whose businesses are built on using it as a communications backbone are regulated as anxiously as television networks.

      • Paul Topping
        Posted November 16, 2020 at 3:48 pm | Permalink

        The right to misinform is precisely what needs to be repealed. The Founders didn’t have to deal with social media. Lying should not be punishable in all contexts, of course. Spouses should remain free to lie to each other. 😉 Free speech is all about the freedom to express one’s opinion and was never intended to enable mass misinformation campaigns.

        • flayman
          Posted November 16, 2020 at 5:34 pm | Permalink

          It is absolutely about the freedom to misinform. I’ve read about the origins of free speech principles in America and there’s a big nod to the sort of mischief that the Sons of Liberty were up to. They exaggerated an unfortunate incident involving a frightened soldier and some hooligans into the Boston Massacre, an event in which a total of three people were killed, all of whom had been hurling stones and using clubs.

          Without initially looking for a revolution, they sensationalized a number of the policies being imposed on the colonists at the time and were successful in fomenting unrest, which eventually snowballed into full scale revolution. And this is thought to be all good because history is after all written by the victors. The founders knew exactly what they were doing when they formulated the Bill of Rights. This was against the backdrop of the law of Seditious Libel, which Britain would charge against dissidents until juries began to nullify themselves. The power of the people to speak out against and overthrow its government if it went against the will of the people would be protected. That of course is a good thing, though I question the methods that were employed at the time as they were dishonest.

          Since those founding days and all throughout history, American free speech law and principles have developed such that private individuals and corporations are free to publish whatever garbage they see fit, save for very narrow exceptions. Political speech is particularly protected, and the speech of the President and his close advisors is nothing if not political. I would add that I also very much appreciate the value of the First Amendment today, but we must look back to its roots. The conservatives on the Supreme Court understand and appreciate the history and we can expect them to champion that sort of free speech. They still believe that the antidote to bad speech is more good speech. They are probably wrong and it gets worse every day, but there we are.

        • savage
          Posted November 17, 2020 at 5:31 am | Permalink

          The founders spread baseless conspiracy theories about the British and used plenty of pseudonyms. And the papers back then did not even pretend to be accurate.

    • Historian
      Posted November 16, 2020 at 1:47 pm | Permalink

      You make an important point. It is an act of faith to believe that truth invariably will win over falsehood if essentially unfettered free speech is allowed. Free speech contributed to the rise of Hitler, which he promptly ended. In other words, free speech can be used to end free speech. On the other hand, the dangers of having a censor of speech has been explored deeply at this site. However a democratic society comes down on this issue, the risk to democracy will remain.

      • Randall L Schenck
        Posted November 16, 2020 at 2:08 pm | Permalink

        Also, this “free Speech” issue is continuously being over used here at this site to apply to everyone and all companies and institutions. That is nuts. It is an Amendment in the bill of rights that simply protect you from government interference. The unregulated internet services will either receive greatly needed regulation or we will continue to spiral down a very dark hole where anything goes and the truth means nothing.

      • Paul Topping
        Posted November 16, 2020 at 3:53 pm | Permalink

        Every society has conflicts between rights and develops a way to deal with them. Ours is the legal system. If delivering misinformation is made illegal in certain contexts and under certain conditions, the courts will deal with the disputes that arise. There will need to be lightweight mechanisms that make this efficient and practical, such as AI applying rules on social media, but with the ability to appeal, eventually to a court. I really see no other way out of this mess.

      • Ken Kukec
        Posted November 16, 2020 at 4:01 pm | Permalink

        It is an act of faith to believe that truth invariably will win over falsehood if essentially unfettered free speech is allowed.

        If that faith is misplaced, our Republic has a fatal defect that no amount of hate-speech legislation can cure.

    • Paul Topping
      Posted November 16, 2020 at 1:55 pm | Permalink

      Do we really think this is a free speech issue? Trump has completed the destruction of faith in MSM that the GOP started decades ago. Those that want to keep up the misinformation storm want to cast it as a free speech issue but we shouldn’t let them. It’s a truth issue.

      • Randall Schenck
        Posted November 16, 2020 at 2:27 pm | Permalink

        Trump can get on the internet, Twitter and throws lies out there all day long. The best the internet service does is say, well now, now, that is just not true. And he goes right on to the next lie. He is the president and millions of his followers believe every word out of his lying mouth. The internet services operate for maximum money and no responsibility for what is said. It is very harmful and should not be happening.

        • Randall Schenck
          Posted November 16, 2020 at 2:35 pm | Permalink

          I should also remind others of a Mark Twain statement – A lie travels around the world and back while truth is lacing up it’s boots. I don’t think there was internet or telephone back in Mark Twain’s time.

    • Steve Pollard
      Posted November 16, 2020 at 4:20 pm | Permalink

      Isn’t one possible answer that Trump and his cronies should be allowed their day or days in court? As many as they want, with as much publicity as they deserve? As far as I can tell, they have no evidence that would fly in a county court, let alone at state or SC level. The Emperor has no clothes. Let’s allow him to expose his tiny credentials in full public view.

  10. Posted November 16, 2020 at 12:54 pm | Permalink

    We in South Africa have hate speech laws applied unevenly but that is the nature of our historical reality. So what! We should all be allowed to shout and scream from our soapboxes as long as our rantings are not the immediate cause of violence.

    • A C Harper
      Posted November 16, 2020 at 3:27 pm | Permalink

      Agreed. I don’t think ‘hate speech’ should be recognised in law. There should be only ‘speech likely to incite immediate illegal activity’.

      Otherwise the existence of ‘hate speech’ draws a distinction between a ‘protected group’ and the rest of the population, which is probably unhelpful in the long term.

  11. Filippo
    Posted November 16, 2020 at 12:59 pm | Permalink

    ” . . . penalize speech that deliberately insults people . . . where truth cannot drive out lies, we must add new guardrails . . . not speech that incites hate.”

    Would Stengel hold that that speech includes claiming that sex is biologically determined and is not a “social construct”?

    “Yes, Stengel is a Pecksniff who wants hate speech laws, but is curiously silent about who will make them? Who will be The Decider?”

    Any law made should force Stengel to be The Decider.

  12. Jon Gallant
    Posted November 16, 2020 at 1:02 pm | Permalink

    It is significant, and amusing, that the individuals who want to make insulting speech a criminal offense are often also in favor of “defunding” the police. I suppose it makes a kind of sense, though. They presumably expect that the policing of wrongspeech will not be handled by police, but rather by the Associate Dean for Diversity, Equity, and Inclusion.

  13. Paul Topping
    Posted November 16, 2020 at 1:12 pm | Permalink

    Stengel’s article is very poor. He mixes a need for truthful speech to win out and hate speech. We should allow someone to burn a Koran. How is that spreading lies? It’s an opinion. We know that some people believe in Islam and some don’t. There’s no problem expressing an opinion against it. Those Islamic believers that react to it with violence are the ones at fault. There’s no truth issue here. I hope his advice to Biden is better than that or that he has other advisers who can push back on his bad ideas.

  14. Posted November 16, 2020 at 1:23 pm | Permalink

    Hate speech is not the problem its peoples brains

    • Posted November 16, 2020 at 1:24 pm | Permalink

      … we all need a software update 🐵

  15. Ken Kukec
    Posted November 16, 2020 at 1:24 pm | Permalink

    Domestic terrorists such as

    Dylann Roof and Omar Mateen and the El Paso shooter were consumers of hate speech.

    Yes, and Mark David Chapman was a consumer of Catcher in the Rye; John Hinckley, of Taxi Driver.

    Gearing speech laws to society’s most suggestible loose cannons is a mug’s game.

  16. JBaldwin
    Posted November 16, 2020 at 1:37 pm | Permalink

    J.S. Mill well-understood that free speech would not end falsehoods among “impassioned partisans”. He said the salubrious effects (~truth) would emerge among cooler-headed moderates (disinterested bystanders), people capable of resisting extremes and seeing the partial truths in many voices.

    I think this may have been born out in the election. It may explain the gains made by Repubs even as they lost the presidency, consistent with the earlier post featuring Bill Marr and “wokeness”.

  17. KD33
    Posted November 16, 2020 at 1:49 pm | Permalink

    Obviously an important issue. But pales in comparison to the right wing disinformation infrastructure, the willingness of 40% of Americans to live in it, and Trump’s efforts to solidify both as he leaves office. Using Bill Maher’s metaphor, it’s a giant pile of sh*t in the middle of the room, while we’re over in the corner sweeping up the dust bunnies that are debates over what constitutes hate speech.

    • EdwardM
      Posted November 16, 2020 at 2:30 pm | Permalink

      yes, the right represents a more present threat but I can’t help but notice that, when it comes to embracing racial hatred, the far left has in many ways completed the circle, attempts to stifle speech just the tip of their totalitarian iceberg.

      IOW, those “dust bunnies” you say we shouldn’t be too concerned about are really dingleberries derived from that very pile of excrement in the middle of the room Maher(and you) warn about.

      Maybe those dingleberries are not such a pressing problem right now, but give them a few more years and access to power (which I fear with Biden they may gain) and the source of that giant pile will not be so clear.

      • KD33
        Posted November 16, 2020 at 3:27 pm | Permalink

        Perhaps, and I am equally exasperated. But I still doubt they’ll be responsible for the deaths of 100’s of thousands, the implementation of coo-coo economic policies, and deplorable ignorance of climate change.

        We need more attention on the pandemic of disinformation. I think it’s not been accentuated enough in this community.

  18. Posted November 16, 2020 at 2:23 pm | Permalink

    Yes, Stengel is a Pecksniff who wants hate speech laws, but is curiously silent about who will make them? Who will be The Decider?

    How about Andy Stone?

    Facebook Policy Communication Director Andy Stone, who formerly worked for the Democratic House Majority PAC, took to Twitter to outline the company’s policies in regards to the sharing of the New York Post article, tweeting:

    “While I will intentionally not link to the New York Post, I want be clear [sic] that this story is eligible to be fact checked by Facebook’s third-party fact checking partners. In the meantime, we are reducing its distribution on our platform.” (Emphasis added.)

    Stone’s ties to one of the leading Democratic PACs would cause anyone to raise an eye to the clear partisan nature of Facebook’s communication decision. — Source, Standford Daily

    As said before, the whole 1st Amendment arguments are moot by now. While old money and the big toxic waste slingers pumped their money into the Republican party, Silicon Valley picked the Democrats. The unprecendent Orwellian project of mass surveillance was rolled out under Obama (who famously also ordered to wiretap NATO allies like Merkel’s phone, btw. Trump wasn’t this stupid to attack an ally with excellent diplomatic relations).

    It looks like a nice partnership between the government and private tech firms by now, where the argument does not work anymore that private companies can do whatever they want, when they are clearly not totally independent from the government.

    Biden was the Vice under Obama, so I think this Big Brother 2.0 project will simply continue. Uncle Joe Is Watching You! (and will determine which information is good for you). That’s already the case. This idea here is just the next logical step.

    • Randall Schenck
      Posted November 16, 2020 at 2:41 pm | Permalink

      That is pure far right propaganda that lives on in the minds of the Trump cult. So the NSA is the enemy and and the lies Trump tells you are the truth. It’s like one big comedy. The fact that Trump lives in the back pocket of Putin does not bother you a bit.

      • Posted November 16, 2020 at 3:05 pm | Permalink

        That’s a very high bar you set for youself. You said absolutely everything I wrote (as well as the source, Stanford Daily) is false propaganda (you say it’s “pure”).

        (1) Andy Stone was communicatons director of a Democrat super PAC, and he is now at Facebook. It’s in his CV.
        (2) He really tweeted this, and the story was really censored, without evidence. Many called it dis- or misinformation without evidence to deep six it.
        (3) Snowden revealed the shocking extent of US mass surveillance programs.
        (4) Wiretapping of Merkel’s phone was a big story, google it and you shall find articles in every relevant outlet. The relations did defacto deterioriate significantly after that.
        (5) proximity between government and facebook, see here for example. https://www.theatlantic.com/national/archive/2011/05/meet-facebooks-lobbyist-dream-team/351155/

        I look forward to show me how all of this is wrong, and “pure propaganda”. Besides, I don’t quite understand the reference to Putin’s pocket. How’s that relevant?

    • JBlilie
      Posted November 16, 2020 at 3:25 pm | Permalink

      “Trump wasn’t this stupid to attack an ally with excellent diplomatic relations”

      Yes he was/is. He has attacked all of our allies, more or less and has sucked up to nasty authoritarians like Putin, Duterte, Bolsonaro, Kim, etc.

      He has been doing Putin’s bidding in undermining the EU, NATO, etc.

      • Posted November 16, 2020 at 3:53 pm | Permalink

        How, exactly, did he “attack” allies? I don’t talk about mean tweets, or relations-damaging posturing. There was plenty of that indeed. We talk about an actual attack as in cybersecurity attack: https://en.wikipedia.org/wiki/Cyberattack

  19. FA
    Posted November 16, 2020 at 2:34 pm | Permalink

    Why are you surprised? This is what you voted for, and what James Lindsay was trying to tell you would be just the beginning.

    • EdwardM
      Posted November 16, 2020 at 2:59 pm | Permalink

      Oh FFS, and what was the alternative? You and Lindsay can get up your high I told you so horses and have your fun but just what in the hell did you expect sane people to do?

      AND although I personally am worried, there is no reason yet to think Biden will give up the ship to the woke.

    • Paul Topping
      Posted November 16, 2020 at 4:02 pm | Permalink

      Nothing has happened yet to think Biden will kowtow to the Woke. In fact, just the opposite. Many Democrats who didn’t do as well in the election as they thought they would are reminding the rest in their party that Woke ideas and slogans were to blame. It’s a sort of pre-backlash against Woke ideas getting into the Biden administration, as if to say “Don’t even think about it.”

    • Ken Kukec
      Posted November 16, 2020 at 4:10 pm | Permalink

      Anyone who can say that has a beam in his own eye regarding Donald Trump.

  20. Curtis
    Posted November 16, 2020 at 3:44 pm | Permalink

    This is the beauty of divided government. The right wants to ban speech aimed at the right. The left wants to ban speech at the left.

    Together, divided, free speech lives.

  21. JonLynnHarvey
    Posted November 16, 2020 at 4:38 pm | Permalink

    Among many dozens of objections to curtailing free speech, it will inevitably create a criminal class of people who take their bigotry underground, much like the days of Prohibition (of alcohol.)

    And there is also the slippery slope objection of what is the line between speech:
    a) expressing fear and apprehension
    b) expressing hate
    c) expressing verifiable falsehood (with hate)
    d) advocating violence.

    These 4 are not the same and to view them as the same seems essentially reductionistic.

  22. Posted November 16, 2020 at 4:45 pm | Permalink

    As we have seen, in practice “Hate speech” is defined as any form of speech which any listener, anywhere, at any time, hates. This is too subjective a definition to have any respect in law. Therefore. *all* “hate speech” laws must be abolished as unworkable, inaccurate, and unconstitutional.

    And the same for “hate crime”.

    –Leslie < Fish

  23. Posted November 16, 2020 at 4:50 pm | Permalink

    “Hate speech” comes down to nothing more than any form of speech which anyone, anywhere, anytime hates. That’s not a reasonable foundation for any rational law. The very concept of “hate speech” must be abolished from American law.

    The same for “hate crime”. If somebody robs, assaults, or kills his neighbor, does it really matter if he did it for money, for “hate”, or for psychopathic fun? Would the crime be any less if the perpetrator earnestly claimed to have “loved” his victim?

    The concepts of “hate speech” and “hate crime” must be abolished from American law.

  24. Torbjörn Larsson
    Posted November 16, 2020 at 4:52 pm | Permalink

    It’s funny how Jerry refer to Scandinavia as an example of living without religion, since we do well, but not as an example of living with hate speech laws. It isn’t black and white, and balancing free speech with freedom of religion is a human right by UHDR.

    Who will be The Decider? We all know the problems with that, and they are pretty much insuperable.

    Nations with hate speech laws know little problem with that in practice – while it is heaily disputed in principle – since it is the courts that are the deciders based on the documented groundwork with the laws.

    And while I don’t know of problems or benefits with the laws, it is easy to see that they are rarely tried.

    Incitement against ethnic groups (initially also called Lex Åberg) is a hate crime that involves publicly spreading statements that threaten or express contempt for one or more designated ethnic groups. The crime has this name in Sweden and Finland, but similar legislation exists in all the Scandinavian countries (for example, the racism clause of Denmark and Norway) as well as Germany, France, Ireland, Great Britain, South Africa and Canada, but not the United States, whose Bill of Rights provides strong protection of freedom of expression. Which ethnic groups and institutions are protected and which criteria must be met for the statement to be a crime varies between countries and is a controversial issue. Common categories include ethnicity, religious beliefs, more recently sexual orientation and gender identity.

    Av de 5518 hatbrott som polisanmäldes i Sverige 2012 kategoriseras 11 procent eller 601 anmälningar som hets mot folkgrupp. Av dessa hade 419 anmälningar främlingsfientliga/rasistiska motiv varav 114 med afrofobiska motiv, 21 med antiromska motiv, 79 antisemitiska motiv och med 72 islamofobiska motiv. 25 anmälningar hade homofobiska, bifobiska och heterofobiska motiv. Av anmälningarna om hets mot folkgrupp hade 194 tecken på koppling till högerextrema eller nationalistiska organisationer. De vanligaste brottsplatserna var internet och allmänna platser, ofta genom affischer och klisterlappar, men även genom fientligt klotter på religiösa byggnad eller genom att skrämmande slagord skanderades på platser där flera ur den utsatta gruppen befinner sig. Vissa anmälda brott var riktade direkt mot den utsatte, exempelvis genom att man ropade kränkande epitet efter personen. I merparten av fallen var gärningspersonen okänd.[2]

    [ https://sv.wikipedia.org/wiki/Hets_mot_folkgrupp ]

    We’ve been through about 130 judgments, of which about fifteen refer to the crime of freedom of the press or freedom of expression incitement against ethnic groups.

    In most of the judgments we have reviewed, the defendant has been convicted for incitement against ethnic group.

    Based on our review of practice, it is our assessment that the current criminal law regulation in matters of racist and similar symbols are appropriately designed. This means that we believe that the provisions on incitement against ethnic groups should not be changed and that it should not a special ban on the use of certain symbols should be introduced.

    [ http://www.sou.gov.se/wp-content/uploads/2019/05/SOU-2019_27_webb.pdf ; a report for the government ]

    The report summarized 30 years of judgements, so it comes out as about 1 every year (depending on how you decide your groups – the report isn’t clear in its summary).

    • flayman
      Posted November 16, 2020 at 5:46 pm | Permalink

      Given the choice, and all things being equal with regard to seeing family and friends, I know that I would much rather live in Norway than in the United States that I see unfolding.

  25. Posted November 16, 2020 at 6:20 pm | Permalink

    Rather than censoring statements, at least on social media, what about disclaimer notes attached. Someone who claims the earth is flat or evolution is a lie wouldn’t be stopped from saying so, but a note appended: “Contains counterfactual assertions.”

    That would apply too to a lot of what is dubbed hate speech. Racist attributions to populations for example. The disclaimer ought to be defendable with the explicit reasons why it was so marked, and opportunity for the marketplace of ideas to then thrash over the validity of the designation.

    Mr. Trump has been earning such warning notations in his recent tweets about voter fraud. No suppression of his speech, but no limitless license to repeat falsehoods without the error of it taken note of.

  26. Paul
    Posted November 17, 2020 at 2:30 am | Permalink

    I think the government would be better leaning on tech companies to increase mixing of people with different views and encourage debate. Land people in general discussion areas and expose them to varied news sources and opinions. Moderate for civility in these places perhaps.

  27. Posted November 17, 2020 at 6:30 am | Permalink

    Biden was one of the principal advocates behind the Obama Administration’s Title IX “Dear Colleague” letter. Point to Stengel if you want, but I suspect the actual problems over the next four years, civil liberty-wise, will emanate from the top.

  28. Posted November 17, 2020 at 7:01 am | Permalink

    ‘Freedom’ in any context is meaningless without boundaries: the 2nd amendment gives you the right to won a firearm, but not to walk into a school and murder kids; the various forms of the 1st amendment do not extend to incitement (yelling ‘fire’ in the theater). As a few contributors have pointed out on this forum the ‘devil is in the details’: who decides, makes the rules, etc.


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