The marketplace of ideas assumes a functioning marketplace. When a moderator silences the correction and amplifies the normalization, the theory collapses. But the law doesn’t account for that because the law assumes that the structural conditions it was written under would persist.
They did not.
The verification mechanism of public discourse, journalism, and the adversarial format has been corrupted into a delivery system for the thing it was supposed to check.
The US legal tradition layered the First Amendment on top of a marketplace of ideas as self-correcting. The theory was that bad speech gets answered by better speech. We see clearly this is not working, such as in a discussion about Hegseth committing and promoting war crimes.
Lt. Col. Frederic Wehrey (Ret.) was the better speech. He got cut off mid-sentence by a PBS moderator so that Col. Joel Rayburn (Ret.) could say that war crime is fine.
Lt. Col. Frederic Wehrey (Ret.):
Well, it’s, quite frankly, shocking. It’s irresponsible, strategically reckless, ethically problematic on multiple fronts.
I mean, look, the Constitution specifies a separation between religion and state, between church and state. And so public officials are not supposed to use their office to push a particular religious vision. And that’s exactly what the secretary is doing with this very apocalyptic Christian nationalist vision.
The second issue is, the U.S. armed forces are very diverse. You have men and women of diverse faiths or no faiths at all. And that’s going to create frustration or alienation. It’s not a good leadership strategy. You’re not building inclusion.
I mean, the other problem with framing this…
John Yang:
Fred, I’m going to interrupt you, because we’re running out of time, and I’d like to hear Joel’s thoughts on this. […]
Col. Joel Rayburn (Ret.):
Yes, and I think Secretary Hegseth is the secretary at war. He’s trying to explain to his forces who are engaged while they’re fighting. And he’s trying to inspire them. […]
John Yang:
Joel Rayburn and Fred Wehrey, thank you both very much.
The short explanation for this failure is that the First Amendment was designed to protect dissent against the state, not to protect state propagandists. But it doesn’t distinguish between the two. It protects speech categorically, regardless of who benefits. You can see here the good speech is shut down, thumb on the scale, to normalize a crime and give it the last word.
The longer answer is historical. The post-WWII legal architecture of Geneva Conventions, Nuremberg principles, and the UCMJ was built to address the chain of command. The people who gave the orders and the people who pulled the triggers. That was the problem they could see clearly in 1945.
What they didn’t build a framework for was the machinery between the order and the public. Nuremberg prosecuted Julius Streicher for propaganda, but he was seen as a special case. Direct incitement to genocide was over decades through Der Stürmer. Propagandist Lord Haw Haw was charged with treason and maps to Pete Hegseth, yet who will prosecute today? The threshold was set extraordinarily high. Anything short of that was left unaddressed.
And so war crimes are actively promoted on American public television as inspirational, helping Hegseth feel better about losing the war.
Both got plenty of airtime on capabilities and strategy. Then on the single most consequential question, is the Secretary of Defense publicly ordering war crimes, Wehrey was building a three-part argument (constitutional violation, alienation of diverse forces, and a third point he never finished) and Yang cut him off mid-sentence on that question specifically. Rayburn then got the last word on that question specifically. And Yang closed the segment in favor of war crimes.
