The First Amendment does not protect the person who falsely cries Fire! in a crowded theater, according to the classic words of Supreme Court justice Oliver Wendell Holmes Jr. More to the point nowadays, however, is whether the First Amendment protects the person who uses hate speech in a world that is crowded with hate and violence.

This book hopes to begin an honest conversation about what we really mean by free speech when we invoke the right and trumpet the liberty, when we demand freedom of speech only for the issues personal to us, and when we seek to deny it for others, announces Thane Rosenbaum in Saving Free Speech From Itself (Fig Tree Books).

The very notion that we ought to rewrite the First Amendment is mind-blowing to those of us who cherish the right of free speech as a core value of American democracy. Ironically, the high regard in which we hold the First Amendment obliges us to afford Rosenbaum an opportunity to be heard. And anyone who recognizes the dire risk of hate speech in our benighted world is obliged to consider what Rosenbaum has to say.

Rosenbaum is a public intellectual and an especially accomplished and credible one. He contributes to The New York Times, The Washington Post and The Wall Street Journal, among many other distinguished publications. He is a legal analyst for CBS News Radio, a commentator on CNN, and the moderator of The Talk Show at the 92nd Street Y in Manhattan. He is the author of five novels and two provocative books on the theme of justice, Payback: The Case for Revenge and The Myth of Moral Justice: Why Our legal System Fails to Do Whats Right. He is Distinguished University Professor at Touro College, where he serves as director of the Forum on Life, Culture & Society. Above all, and unlike many others who command the attention of the media, he is no mere controversialist.

If he has a problem with the First Amendment, perhaps we should give it another look, writes New York Times columnist Bret Stephens, a former Republican (and still a principled conservative) in his foreword to Saving Free Speech

Thane Rosenbaum cites a long list of democracies, including countries as dissimilar from each other as India, Ireland and Israel, that are less exuberant in their defense of free speech.

Saving Free Speech is a detailed and well-documented overview of how the First Amendment actually functions in contemporary America. Rosenbaum points out that nearly everyone has a strong opinion about the sanctity of free speech. But troubling distinctions are made between speakers whose rights are respected and protected, and speakers whose rights are disregarded. On one hand, Rosenbaum points out, college campuses across the country have withdrawn speaking invitations from public figures as diverse as Ayaan Hirsi Ali and Condoleezza Rice, Henry Kissinger and George Will, Michael Moore and Bill Maher. On the other hand, the courts have protected the First Amendment rights of not only cross-burners and flag-burners but even neo-Nazis who wanted to march through Skokie, Ill., a suburban Chicago community they chose because of the Holocaust survivors who lived there.

Indeed, the rhetorical thread that runs through Rosenbaums book is his argument that we have misunderstood and misapplied the right of free speech. He decries what he calls the free speech madness that is as tightly woven into Americas democracy as are the Stars and Stripes. He points out that the right of free speech is already circumscribed by law shouting Fire! in a theater is just one of many examples of impermissible speech and he asks us to entertain the not-so-radical idea that the time has come for some additional legal restraints.

More and more are recovering addicts from the drunken free-speech hedonism of the past, he writes with his characteristic snap and flair. Many question what free speech really means in a world of social media trolling, cyberbullying, cloak and dagger hacking of Americas presidential election, militant protest rallies by groups that spread hate, incitement to violence, the spreading of fear, and college campuses that are repressing the openness of mind that was once the whole point of a liberal arts education.

Rosenbaum cites a long list of democracies, including countries as dissimilar from each other as India, Ireland and Israel, that are less exuberant in their defense of free speech. Marching neo-Nazis in Austria and Germany two nations for whom brown shirts and the chanting of Heil Hitler is not some quaint trip down memory lane get marched right to jail for up to three years. For Germans, he argues, the Skokie decision was not so much a federal case as a freak show.

The case that Rosenbaum makes for fine-tuning the First Amendment is based on balancing our concern for freedom of speech with the social and political values of civility, dignity and privacy. The right to free speech was never divorced from a companion obligation to do so with decency, writes Rosenbaum, citing the Founders who gave us the Bill of Rights in the first place. Anything less makes no sense in a free society.

The next limitation on freedom of speech, Rosenbaum proposes, is to make hate speech a hate crime: Verbally assaultive assaults against individuals and groups are not protected under the First Amendment. The internet, which has become a terrorists best friend, is the first place to start: The internet is policed by no one, he writes, and yet it is a source of incitement and instruction to aspiring mass murderers. Hate speech whenever it is uttered, wherever it is found, in whatever form it takes, and on which platform it makes itself known must be treated like obscenity: subject to Justice Potter Stewarts aphorism, I know it when I see it.

So Rosenbaum proposes a variety of concrete steps, ranging from a constitutional amendment to new municipal ordinances, arguing that somebody has to be in charge, minding the store and enforcing discipline and responsibility. His thought experiment is plausible and even compelling right up to the moment when we pause to wonder what tinkering with the First Amendment would really mean now that President Donald Trump, Sen. Mitch McConnell and Attorney General Barr are the ones in charge?

Jonathan Kirsch, attorney and author, is the book editor of the Jewish Journal.

CORRECTION Feb. 20: An earlier version mistitled the book Saving Free Speech as Saving the First Speech

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What We Really Mean by Free Speech - Jewish Journal