In our opinion: Why government can't tackle hate speech without shredding First Amendment

Published: Sunday, May 4 2014 12:00 a.m. MDT

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The elderly owner of an NBA team spouts racist comments in private that are secretly being recorded. The league ends up punishing him, but is that enough? Should government do something to punish people who say such things?

Hateful and hurtful comments abound daily on the Internet. Sometimes people who harbor such feelings end up committing crimes. Should government monitor cyberspace and take action against such speech?

To students of the United States Constitution and its origins, the answers to such questions are clear. The nation’s Founding Fathers exhibited extraordinary wisdom when they added a Bill of Rights to the Constitution that included, in its First Amendment, a guarantee of free speech, free press and the free exercise of religion.

The natural inclination of most people in power is to suppress dissent and put an end to ideas that might threaten their power. But the Founders understood that ideas, like commerce, flourish best in a free marketplace, and that the best way to combat hatred and falsehood is to do so head-on, with logic, reason and persuasion.

That wisdom has become only more self-evident since their day.

A government that attempts to ban speech cannot ban the ideas behind that speech.

Left uncontested in society’s dark corners, false and dangerous ideas can fester and grow until they burst again into view, too large to confront with reason. On the other end of the spectrum, a government concerned with speech may ban good ideas merely because it perceives them to be a threat.

Unfortunately, Americans are not born with an understanding of these fundamental notions of freedom. Each generation must confront them anew.

One of the most disturbing recent manifestations of this is a bill being sponsored by Sen. Edward J. Markey, D-Massachusetts, a member of the Commerce, Science and Transportation Committee. It would empower the federal government to “analyze information on the use of telecommunications, including the Internet, broadcast television and radio, cable television, public access television, commercial mobile services and other electronic media, to advocate and encourage violent acts and the commission of crimes of hate.”

This analysis would end with a report that includes recommendations for addressing such hate speech, as long as these are “consistent with the First Amendment.”

The problem is no such action could be consistent with the First Amendment, unless the speech uncovered was evidence of a credible, clear and immediate danger to public safety.

The astounding thing is that Markey’s bill has been proposed in the middle of an ongoing national debate over whether the National Security Agency has overstepped its bounds by collecting metadata on all telecommunications in the United States.

Markey says his aim is to update a similar report the government conducted in 1993. But that was before the age of email and social media. With personal information so much easier to gather and analyze these days, we are guessing the last thing Americans want is another government agency snooping on their conversations.

The First Amendment was not written to protect only speech everyone finds agreeable and non-threatening, and it certainly was not intended to allow a government agency to separate and label speech as either acceptable or dangerous.

Among its many intellectual fathers was John Milton, a 17th century English poet and civil servant. He said:

“Though all winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and falsehood grapple, who ever knew truth put to the worse, in a free and open encounter.”

Few people are jumping to the defense of NBA team owner Donald Sterling, and for good reason. As an idea, racism must always be countered with reason.

But as Harvard law professor Alan Dershowitz recently told the Boston Herald, “We always have to be able to respond to the racists and bigots, but not at the expense of the First Amendment.”

Free speech not only is a check on the abuse of power, it is a safety valve on the pressure cooker of public thought. The right to speak freely must not be devalued.

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