MSNBC political analyst and former Obama administration official Richard Stengel argued that America needs to outlaw hateful speech, including Koran burning.
"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," Stengel argued in a Washington Post op-ed Tuesday.
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Stengel, who worked as the managing editor of Time magazine before becoming undersecretary for public diplomacy and public affairs at the State Department under President Barack Obama, endorsed the creation of a hate speech law in the op-ed. The MSNBC analyst said his experience in the Obama administration led him to renounce the idea that the Constitution protects "not free thought for those who agree with us but freedom for the thought that we hate," quoting Supreme Court Justice Oliver Wendell Holmes Jr.
"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," he said. "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?"
Stengel acknowledged that such legislation would likely run afoul of Supreme Court precedent. Under the Court's ruling in Brandenburg v. Ohio, the U.S. government cannot punish hateful or incendiary remarks unless it incites "imminent lawless action," a very narrow category of speech. Stengel suggests that precedent would still allow states to experiment with European-style "hate speech statutes to penalize speech that deliberately insults people based on religion, race, ethnicity and sexual orientation."
"All speech is not equal," he concluded. "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."
Stengel's op-ed comes as many Americans, particularly young adults, have expressed a willingness to re-write the First Amendment. A poll released by the Campaign for Free Speech found that a majority of millennials support fining or jailing those convicted of "hate speech." Nearly 60 percent of those polled also agreed that the "government should be able to take action against newspapers and TV stations that publish content that is biased, inflammatory, or false."