The remedy for hate-speech is counter-speech

Two op eds ago, I wrote that the First and Second Amendments to the U.S. Constitution might be amended in ways which I believed would appeal only to fools — to readers who were “constitutionally clueless” as to the meaning and importance of the First and Second Amendments in their lives and in the lives of the American people. The “simple” amendments that I "proposed," if adopted, would have gutted our First and Second Amendments and ushered in totalitarian government.


Now I ask a few more questions:

1. Can there really be “freedom of speech” if the government can define what constitutes “disinformation?”

2. Is there “free speech” if the government can make the dissemination of “disinformation” a criminal offense?

3. If the government can imprison you for up to five years if you happen to say something that the government labels “disinformation?”

4. Do you really have a “right to keep and bear arms” if the government can impose any limitation on that right that the government deems “reasonable?”


In 1777, one year after he wrote our Declaration of Independence, Thomas Jefferson penned the “Virginia Statute for Religious Liberty.” Jefferson deemed his statute, which became Virginia law in 1778, to be his second most important writing. As you read these few quotes from Jefferson, note Jefferson believed our “rights” were “God-given;” not gifts from any government.

“Almighty God hath created the mind free, and manifested his supreme will that free it shall remain, by making it altogether insusceptible of restraint …

“that all attempts to influence it by temporal punishments … are a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do.”

Jefferson saw with clear eyes the historical tendency of governments to ordain that only their beliefs were true and infallible.

“Legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible, … have assumed dominion over the faith of others, (and have set) up their own opinions … as the only true and infallible, and … endeavor(ed) to impose them on others … over the greatest part of the world and through all time"

Jefferson understood, that allowing the government to shut down out thought that it disagreed with inevitably destroyed all freedom of speech and religious liberty.

“To suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles, on supposition of their ill tendency is a dangerous fallacy …

“It at once destroys all religious liberty.”

Jefferson understood the tendency of the magistrate to “approve or condemn the sentiments of others only as they shall square with or differ from his own.”

Jefferson, however, realized that some speech must be restrained:

“It is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”

 So, what was Jefferson’s remedy for disinformaton? Misinformation?

“Truth is great and will prevail if left to herself.

“She is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition [she is] disarmed of her natural weapons: free argument and debate.

“Errors cease to be dangerous when it (truth) is permitted freely to contradict them.”

These principles and those enunciated in the Declaration of Independence are the principles under which Madison, Jefferson’s right-hand man, drafted our Bill of Rights.

When it comes to determining which speech shall be permitted and which tenants of faith are true and can be practiced as a person’s free exercise of religion, our Constitution vest that determination solely in the individual; not in any branch of government.

Over the nearly 200 years of our republic, the Supreme Court has narrowly defined a few classes of speech that have historically been deemed beyond the protection of the First Amendment: obscenity, defamation, fraud, incitement, fighting words, speech integral to criminal conduct, and speech that creates a clear and present danger.

Lying, disinformation, misinformation, hate-speech, bullying speech, however, have never been proscribed; their remedy, as noted by Jefferson, lies in counter-speech.

Similarly, the remedy for using or possessing guns in a criminal fashion, is prison. It is not to punish or confiscate from the law-abiding individual.

After our Constitution was drafted, it is said that a woman asked Benjamin Franklin what sort of government the convention had created? He is said to have answered, “A republic — if you can keep it.”

Jefferson’s notion that our fundamental rights are God-given made America the exception among nations. The men who built America on his premise gave us a great gift. The English people fought a 700-year battle with the successors of William the Conqueror to force recognition of those God-given rights. Americans who would cede their rights are fools. Those who would permit the government to nibble away at them aren’t much better. Rights ceded to government are rarely regained.

First Published in the Moline Dispatch and Rock Island Argus on July 16, 2023. 

Copyright 2023, John Donald O'Shea