Former government bureaucrat has epic fail.
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?
That’s from Richard Stengel, “Why America needs a hate speech law,” Washington Post, October 29, 2019. Stengel is someone who one would expect to have a passing familiarity with the virtues of free speech even when it allows people to burn their own property. He’s a former editor of Time and was later undersecretary of State for public diplomacy and public affairs in the Obama administration from 2013 to 2016.
Stengel apparently did not have a good answer.
That reminded me of a conversation between Dwight Eisenhower when he was a general during World War II and Soviet general Marshal Zhukov.
One evening for three hours, two top generals of World War II parried with words. In one corner, defending capitalistic democracy, stood Gen. Dwight D. Eisenhower. Defending communism from the other corner was Marshal Georgi Zhukov.
At a recent White House press conference President Eisenhower, in recounting this World War II experience in Germany explained:
“We tried each to explain to the other just what our two systems meant, to the individual, and I was very hard put to it when he insisted that their system appealed to the idealistic, and we completely to the materialistic, and I had a very tough time trying to defend our position.”
This is from Koji Ariyoshi, “Ike’s Great Failing,” Honolulu Record, Vol. 10, No. 3, Thursday, August 15, 1957.
It leaves out the next lines Ike said, which I found in the Congressional Record. This is Ike recounting the conversation:
You tell a person he can do as he pleases, he can act as he pleases, he can do anything. Everything that is selfish in man you appeal to him, and we tell him he must sacrifice for the state.
Let’s see. Stengel can’t think of how to defend free speech from the criticisms of “sophisticated Arab diplomats” who probably are from countries whose governments have little respect for free speech and some of which probably murder people for exercising it.
Ike couldn’t think of how to defend capitalist democracy from a guy representing a totalitarian dictatorship, one of whose applications of “idealism” was to murder millions of innocent people. I know, I know, Ike might not have known about the extent of the Soviet murders. But he surely knew about the Moscow show trials and various other bloodthirsty moves by the Soviet government. Moreover, didn’t Ike see any idealism in allowing people to do as they please, as long as they didn’t violate other people’s rights? Apparently not.
Stengel pulled an Ike.
READER COMMENTS
Phil H
Oct 30 2019 at 7:56pm
It is interesting and bizarre – after all, Hollywood serves up well-scripted defences of the American Way several times a day. Just watch The West Wing, and Aaron Sorkin will give you a few canned speeches on the value of democracy, free speech, due process, and any other major topic you might like.
My first reading is that most people aren’t really committed to ideals, good or bad. Most Russians weren’t committed communists, most Germans weren’t Nazis, most Americans aren’t deep believers in democracy (e.g. low voter turnouts), and I assume most Bhutanese aren’t fanatical believers in quietism and equality. Most people just get through the day, and aim to fit in ideologically rather than to hold the correct ideology. And in that state, personal and interpersonal experience can easily sway opinions, and that drives a series of rationalisations including a bunch of apparently ideological arguments. And that can generate low-quality op ed pieces.
It’s an editor’s job to weed out low-quality thinking like that, but they have pages to fill and deadlines to meet like everyone else.
David Henderson
Oct 30 2019 at 10:37pm
Interesting thoughts. Thanks.
Thomas Sewell
Oct 30 2019 at 8:42pm
Taking a moment to consider how I’d answer, it’d be something along these lines:
You mistake who governs in the United States. It’s not a matter of our government allowing or not allowing freedom to burn the Koran, it’s a matter of the sovereign people of the United States not granting the government the power to prohibit them from burning Korans in protest. Under our system, the government officials are only allowed power to do things within specific limitations. Restricting freedom of speech is outside those limits, it’s not a choice made by our government officials.
David Henderson
Oct 30 2019 at 10:38pm
Nicely said.
David Boaz
Oct 30 2019 at 8:43pm
Stengel was also president and CEO of the National Constitution Center.
David Henderson
Oct 30 2019 at 10:38pm
Wow! I had not known that. Thanks, David.
Mark Z
Oct 31 2019 at 3:57am
This man learned the virtue of state repression in producing a tolerant society… in Arabia? I know he doesn’t specify which, country, but I suspect whichever one of these sophisticated countries where burning the Koran is illegal has had counterparts to Dylan Roof aplenty, among other issues.
BC
Oct 31 2019 at 4:10am
The best argument for why we protect the burning of the Koran is that that is the only way to protect the Koran itself.
It’s somewhat understandable why the “sophisticated Arab diplomats” would feel comfortable restricting speech. They hold power strongly enough that it might be inconceivable to them that speech restrictions would ever end up banning the Koran, at least in their own countries.
Stengel’s position is less understandable. As Kat Timpf points out [https://www.nationalreview.com/2019/10/former-time-editor-wants-hate-speech-laws-thinks-trump-might-violate-them-and-misses-the-irony/], Stengel thinks that Trump might be in violation of the hate speech law that Stengel favors. Stengel doesn’t quite explain the political dynamics by which people that control the government (like Trump) end up censoring themselves rather than censoring people that do not control the government, like Stengel and the rest of us. The only plausible explanation is that Stengel must feel quite confident that, even when Trump is President, the true power to interpret and enforce anti-speech laws would rest with people that have similar views to Stengel’s.
Proponents of “hate speech” laws should recognize that anti-speech laws can never protect, and actually can only restrict the speech of, the truly marginalized and disempowered, by definition.
zeke5123
Oct 31 2019 at 11:03am
While I agree with these arguments, I think they ring hollow to supporters of hate-speech laws. Supporters hear that we can’t ban bad speech because maybe a bad person is elected that will ban good speech. The supporter thinks: the problem is electing the bad person and enacting this hate-speech law will preclude electing that bad person.
I think there is a more fundamental free speech argument — we don’t know what is true and what is good. If you asked someone fifty years ago about LGBT stuff, their reaction would be very different compared to today. Maybe attitudes will be very different in 20 years? Free speech acknowledges that maybe the current attitude isn’t true / good. So, instead of banning contra attitudes, we allow them to speak because just maybe they will win the argument and bring us closer to the truth.
John Alcorn
Oct 31 2019 at 5:51am
A current controversy about political speech in the USA distinguishes normative and empirical statements. The controversy focusses more narrowly on a subset of political speech: political advertising. Specifically, some people advocate regulations to exclude false claims in political advertising. The underlying thought, it seems, is that free speech is a right, unless the speech is demonstrably false or inaccurate. Or perhaps the thought is that accuracy is necessary only in advertising.
In a fascinating blogpost at Overcoming Bias, Robin Hanson considers the issues more broadly, apart from political advertising. He compares the courtroom, which (in the USA) has strict rules of evidence, and the forum. Should free speech in the forum, too, be constrained by rules of public evidence?
Phil H
Oct 31 2019 at 6:16am
As someone who is not particularly attached to a strong free speech principle, my view is that free speech rules are very valuable, but they should be subject to empirical, contextual review.
The advertising of medicines is an interesting example: permitted in the US, but not in Britain; but with the internet, British people have access to ample information about drugs. The ban may well be past its useful date at this point; but I’m not convinced it was harmful in its day.
In a political example, the media’s strong criticism and monitoring of Donald Trump, and the emergence of “fact checking” organisations, suggests to me that there is not necessarily any need for regulation of political speech in the USA, as the market seems to be doing quite well on its own. However, if Trump’s presidency proves to be a horrible disaster, it might later seem that the market response has not been sufficient, and it would be better to pass laws to prevent blatant falsehoods in politics, as a way to stop a similar future huckster.
(My current view is that Trump is terrible, but that the US polity is standing up magnificently, and his worst impulses are being successfully contained by the combination of the law, the media, and politics. That could change.)
MarkW
Nov 1 2019 at 8:14am
However, if Trump’s presidency proves to be a horrible disaster, it might later seem that the market response has not been sufficient, and it would be better to pass laws to prevent blatant falsehoods in politics, as a way to stop a similar future huckster.
You think it would be appropriate to toss out 250 years of constitutional free speech protection if most people judge Trump’s presidency to have been a disaster (a presidency which — assuming voters are dissatisfied — has only a little over a year yet to run)?
And why on earth do you think that any government run or government approved ‘fact checking’ organizations could be trusted to play it straight and not start policing ‘incorrect’ opinions? Would you find it implausible, for example, that a new ‘Department of Truth’ under a Sanders or Warren administration would want to use fact-checking to suppress arguments in opposition to any aspect of the climate change orthodoxy (on the grounds that we’re in a ‘climate crisis’ and no ‘lies’ on social media can be tolerated)? And if this kid of fact-checking was done, why would it be limited to social media and not be applied to the (increasingly partisan) press and broadcast media as well?
Phil H
Nov 1 2019 at 12:51pm
Hi, Mark. Detail aside, the vital answer to your question:
“You think it would be appropriate to toss out 250 years of constitutional free speech protection…”
is: Yes, I do.
That’s exactly what I meant when I said I’m “not particularly attached to a strong free speech principle”. I don’t think that free speech laws are very important in and of themselves. They’re only important for the good results they create. If free speech in the current era results in very bad leaders with very bad consequences, I would happily tweak, adjust, or dump it.
As it happens, it seems clear to me that the consequences of free speech laws are overwhelmingly good, so I think it’s unlikely that free speech will ever need checking. But for me, it’s an instrument, not a goal.
Mark Z
Nov 1 2019 at 5:41pm
I think you greatly overestimate the probability of abrogating free speech being justified in a utilitarian framework. After all, speech crimes are certainly harmful to those prosecuted for violating them, and it seems extremely unlikely that an instance of speech will be more harmful to someone else than the necessary punishment (that is, harsh enough to be an effective deterrent) for that speech would be for the prosecuted.
So even with a ‘results-oriented’ assessment of free speech, it seems hard to find a plausible hypothetical justification without selectively discounting the utility of those prosecuted under the restriction.
Phil H
Nov 2 2019 at 3:40am
Hi, Mark. I actually agree with you on that. So far as I can tell, the U.S.A. is the best polity on the planet, and it has (in some areas at least) some of the strongest free speech guarantees. That’s some nice prima facie evidence that free speech is consequentially very good.
There are a bunch of areas where free speech restrictions in other jurisdictions really don’t seem to me to have hurt those jurisdictions much: the 20th century porn ban in the UK, the lack of medical advertising in the UK, etc. I don’t have much interest in ideological arguments against those restrictions; and empirically they don’t seem to have done much harm.
But I completely agree that overall, the big-picture evidence seems to suggest that free speech is better in general than restricted speech.
Colin Steitz
Oct 31 2019 at 6:47am
I am becoming more and more convinced that true defenders of freedom cannot thrive if the government doesn’t find ways to churn. The Smithian man of systems can thrive outside the system, but to do so rarely leads to an honest engagement.
What person who truly values freedom and its vast quantities of sorrow and joy could work within such a soul-crushing lock tight environment.
Whatever has moved the tension in our collective shoulders feels like it easing, since any tighter and we could crush our windpipe.
Defend the defenders. But they are obvious, but only through engaging.
Thaomas
Oct 31 2019 at 10:18am
But no one has to “want” to protect burning a Koran, just believe that criminalization would be worse. Besides, the First Amendment does not create an absolute right to burn Korans any more that the Second Amendment creates and absolute right to bear arms.
MarkW
Nov 1 2019 at 8:26am
Besides, the First Amendment does not create an absolute right to burn Korans
At least at this point, it does — in Texas v Johnson, the Supreme Court ruled that burning a U.S. flag is symbolic speech that is protected by the first amendment. There’s no reason to think that the same constitutional logic doesn’t apply to burning a Koran or a Bible or any other religious symbol or text.
Thaomas
Nov 3 2019 at 9:51am
According to Justice Holmes, you can’t burn a Koran inside a crowded theater. 🙂
Adam Ruth
Nov 5 2019 at 12:58pm
You can as long as you’re not the one shouting “Fire!”. Even then, though, there is a fire so shouting it is probably okay :-).
Mark
Nov 1 2019 at 8:37am
I would defend this by noting that in many Arab countries, it seems to be common to burn the American flag. Which I have no problem with: it is and should be legal in America to burn the American flag too.
However, it is a bit oxymoronic to rely on our government officials to defend freedom. I would prefer our government officials to concentrate on maximizing freedom at home rather than sparring with foreigners (when the government spars with foreigners, inevitably the result is mobilization and a decrease in freedom at home), and leave the task of sparring with foreigners to private individuals. Private individuals are very good at this, because liberalism actually does have a lot of romantic and idealistic appeal–just picture the pioneer, creating his own way in the world and beholden to no state. There’s a reason people in China watch US movies and not the other way around.
V.L Elliott
Nov 1 2019 at 9:36am
Personal responsibility, which goes with personal freedom, is overlooked in this thread. I am responsible for what I say/do/choose and can be held accountable but being held accountable does not have to be through the law and courts. For example, I can be taken to task in debates, op-eds, and in fist-fights. The latter being an effective method of instruction in manners (and discretion). I agree that in the past the media have generally provided one means of countering offenders but in recent years some/much of the media have become offenders themselves and public figures too often are not even challenged much less held accountable for words and actions.
Re General Eisenhower and Soviet general Marshal Zhukov’s debate: The Red Army very early on placed political commissars in every military unit down to at least company level (I believe this was at the initiation of Trotsky and was continued on through Soviet non-military intelligence beginning with the Chekka). The titles changed over time but the function continued with unit commanders sometimes conducting the indoctrination if they, the commanders, were members of the Communist Party. The political commissar was not only charged with being a political and ideological guardian of the Communist Party’s hold on power but with the indoctrination of the unit’s personnel in Communist Party doctrine. Marshal Zhukov, who had been a conscript in the Tsarist Army, came into the early manifestation of the Red Army about 1917. By the time of his debate with General Eisenhower, Zhukov had had about 25 years of this formal indoctrination into Marxist-Lenist-Stalinist thought, much of it during Stalin’s purges of the Soviet military and intelligence organizations, which provided a strong incentive to learn and, at least outwardly, accept that reasoning. Zhukov was a good enough student to have survived those purges.
There was not then nor is there now an equivalent to the political commissar in US military forces. Eisenhower did not have similar much less equivalent “preparation” for that debate. However, Eisenhower went on to play a role in post WW II European development both as a military commander and as President of the United States. His opposition to the excesses of Senator McCarthy, integrating the US military, sending the much admired 101st Airborne to enforce school integration in Little Rock Arkansas, the 1957 Civil Rights Act lead me to think he would have understood that the free speech is meant to protect all speech, including hate speech (there are legal limits) in particular. Zhukov’s post WW II role included taking part in removing Stalin’s legacies and, in 1955, abolishing the political commissar system and requiring that all political matters within the Red Army come under his direction. So, while General Eisenhower may not have been as skilled a debater on the subject as Marshal Zhukov, Marshal Zhukov’s post-Stalin actions would seem to indicate what he thought of the substance of the debate.
KevinDC
Nov 1 2019 at 3:33pm
This is an example where the “presumption of liberty” concept is useful. It’s the infringements on freedom which need to be explained, not freedom itself. If you want to restrict someone’s freedom, the burden of proof is on you to explain why that restriction is justified. When Mr. Stengel describes how he “came to see how our First Amendment standard is an outlier,” he it touching on this point. In much of the world, the burden of proof is on the individual to explain why he should have the right to express himself and speak freely, and the citizen is only permitted to express himself in ways that are approved by those with the most political power. It’s unfortunate that Mr. Stengel seems to think this is a superior state of affairs.
This whole idea immediately came to mind when I read this part:
This gets things exactly backwards. The relevant question isn’t why we should allow people to burn the Koran (or any other book, or the American flag, or an effigy of the President, etc). The question is why should we forbid people from doing it? I don’t have a positive proof that no argument exists which might satisfactorily answer this question, but until such an argument is made, the presumption of liberty remains intact.
David Henderson
Nov 1 2019 at 4:55pm
Well said, Kevin.
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