Biden Transition Team Member Doesn’t Like Free Speech.

Richard Stengel previously left his day job at Time magazine to become a member of the Obama administration. Joe Biden has now appointed Stengel to become the part of the Biden transition team and specifically to oversee the transition of the US Agency for Global Media. If you haven’t heard of that agency:

The mission of United States Agency for Global Media (USAGM) is to inform, engage, and connect people around the world in support of freedom and democracy.

What makes this appointment curious is that Stengel is against the First Amendment as it stands now.

In a 2019 opinion piece which appeared in the Washington Post, Stengel wrote:

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. 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….

Since World War II, many nations have passed [hate speech] laws to curb the incitement of racial and religious hatred…. 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? …

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?

Stengel, of course, has a problem: Who decides what speech “attacks and insults people?”

Obviously, the deciding entity would be some sort of government body or worker which means that the government would be deciding what ideas are legal and what ideas are not.

Governments, government agencies and government workers protect themselves. We certainly don’t want anyone in the Biden administration, the Trump administration or any administration to be able to tell us what we can discuss and say.

This blog was named after an insult hurled toward Thomas Jefferson by John Adams during the Presidential election campaign of 1800. Of Jefferson, Adams said:

Jefferson is the son of a half-breed Indian squaw raised on hoecakes and Hamilton is a the Creole bastard brat of a Scotch peddler.

We can just hear Stengel screaming for Federal or state agents to arrest Adams because of his “hate speech.”

Ideas are always going to offend people if they disagree with them. Instead of debating the idea, people would chose the much simpler path of “that person said something that is hate speech! ARREST THEM!”

The Supreme Court ruled in the case of Brandenburg v. Ohio which was a case where Clarence Brandenburg, a member of the Ku Klux Klan, was convicted of:

‘advocat(ing) * * * the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and for ‘voluntarily assembl(ing) with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.’

His conviction was based upon:

The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews.1 Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:

‘This is an organizers’ meeting. We have had quite a few members here today which are—we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.

‘We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.’ The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of ‘revengeance’ was omitted, and one sentence was added: ‘Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.’ Though some of the figures in the films carried weapons, the speaker did not.

Let us be clear: Brandenburg’s ideas are despicable. They appeal to people with single or double digit IQ’s.

Ironically, the KKK can be considered a religion so Stengel’s proposal would mean that our statement would be considered “hate speech.”

The Court reasoned that as the speech did not raise the threat of imminent danger, it was legal.

In a concurring opinion, Justice Douglas cited Justice Oliver Wendel Holmes:

‘Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.’

Justice Douglas continued:

One’s beliefs have long been thought to be sanctuaries which government could not invade. Br enblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an ‘active’ Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyalty-security hearings which, since 1947 when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one’s thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known.

The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.

The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.

This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S. 513, 536—537, 78 S.Ct. 1332, 1346, 2 L.Ed.2d 1460 (Douglas, J., concurring.) They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and conscience. (emphasis ours)

Clearly Stengel’s thoughts are contrary to the US Constitution, the Bill of Rights and Supreme Court decisions. Yet while we think his ideas are “hate speech” towards all Americans and freedoms, we won’t call for him to be arrested or a law created to shut him up.

David Harsanyi of the National Review writes:

Even sophisticated diplomats from Middle East theocracies and autocracies can’t wrap their minds around the principles of free expression! So, asks Stengel, why not be more like Saudi Arabia or Egypt? This is not exactly the reasoning you’d expect from a former journalist, though perhaps these days you should.

In any event, because I believe free expression is a neutral principle that applies to even the most noxious speech — and, also, because speech is unambiguously protected by the Constitution — I believe Stengel should be free to write his authoritarian rants. But he is certainly not a person who should be overseeing any agency that allegedly champions “unbiased news and information in countries where the press is restricted.”

We agree with Harsanyi.

The government should not have agency heads that seek to restrict the rights of Americans.

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