American law and culture strongly circumscribe government power to regulate speech on the internet and elsewhere. Regulations of social media companies might either indirectly restrict individual speech or directly limit a right to curate an internet platform. The First Amendment offers strong protections against such restrictions. Congress has offered additional protections to tech companies by freeing them from most intermediary liability for speech that appears on their platforms. The U.S. Supreme Court has decided that private companies in general are not bound by the First Amendment.
However, some activists support new efforts by the government to regulate social media. Although some platforms are large and dominant, their market power can disintegrate, and alternatives are available for speakers excluded from a platform. The history of broadcast regulation shows that government regulation tends to support rather than mitigate monopolies.
I think that this gets it mostly right.
My worry is that American culture no longer supports free speech. We can make exceptions for speech that causes direct harm, such as shouting “Fire!” in a crowded theater where there is no fire. But hurting someone’s feelings should not count as direct harm. Racist remarks or Holocaust denial may be uncouth, but in a culture of free speech they should be permitted.
My guess is that the culture is changing. Somebody has changed it, too–it didn’t just happen.
For me the telling evidence is anecdotal. Surveys point in the same direction, methinks, but they take careful interpretation.
I am startled to hear people I have presumed to be intelligent and well-informed express the opinion that “free speech doesn’t include hate speech” as if this is something that everyone knows. The people I’ve heard say this are younger than I am, and usually not yet middle-aged.
The generation that supported the right of the American Nazi Party to march in Skokie IL is dying off.
It may be possible to push back again this–it’s not going to be easy.
Yeah, there are a lot of people out there who are completely unaware that there is no legal definition of the term ‘hate speech’ in the United States.
Concur completely.
The rarity of tolerance for free speech globally is under appreciated. As is the mischief caused by judges and corrupt legal systems,
Look at the UK where a judge has ruled Boris Johnson has to stand trial for allegedly lying about the consequences of Brexit. And they persecute anyone who lets slip an unkind word for Muslims.
Or Canada, which purports to offer free speech within reasonable limits but also attempts to guarantee freedom from hurtful communications with hate speech laws that don’t even define hate. The abusive enforcement of hate speech laws is notoriously politicized.
One can only imagine the horrors that will be perpetrated in the US’s vastly more corrupt and politicized courts when hate speech laws arrive.
Humanity’s future is not bright.
I teach engineering. I recently had a conversation with one of my students. He told me that the use of the correct algorithm would eliminate hate speech on the internet and therefor eliminate hate crimes.
I felt like i was in the middle of 1984, the part where one of the characters is going on about newspeak. If you don’t have the word for a crime, how can you even imagine it, much less commit it?
He went on to tell me that Jordan Peterson was dangerous. Not because of anything he actually said, but because some people misinterpret him. He claimed that people in his position had to be extra careful to speak in such a way that he couldn’t be misinterpreted.
I told him people misinterpret Jesus Christ and he’s the son of God. What chance do the rest of us have?
The focus on commercial ‘monopolies’ on the one hand, and restriction that solely operate on the state on the other, are unfortunate distractions. It’s like the drunk looking for his keys under the streetlight problem: people want to talk about this framing of the problem because it has public salience and they’re already familiar with how their team is supposed to talk and think about that issue.
But it’s the wrong framing, meaning the whole discussion, analyses, diagnoses, etc. are off the rails. The problem is not commercial, but social, cultural, and political, that is, the ideological monopoly among high status elites that both manage those firms and also exert internal and external influence and public relations pressure on any enterprise in that space, and enforce your Basic Social Rule on them. See how Google, Twitter, Facebook, Paypal, Chase, etc. are racing with each other in the same direction to stay ahead of that bear, since one can’t afford to be slowest.
In a way, a genuine monopoly – provided it isn’t run by SJW True Believers and created a fully centralized structure without alternatives only to let it be captured into the hands of ruthless maniacs as in the French and Russian revolutions – might be an improvement, since being secure in its position would make it more insulated from certain forms of pressure, and furthermore, it would have a sizable number of ‘constituents’ or ‘stakeholders’ (investors, users, clients, customers, etc.) which would object to such practices in ways the firm’s leadership wants to avoid.
For example, is Section 230 immunity of the CDA ‘regulation’ or ‘deregulation’, seeing as how it carves out a special exception from ordinary law for one particular medium of information dissemination? Is it ‘regulation’ then to implement one common and reasonable proposal, which is to give internet platforms and providers a choice that either they can (1) Get immunity only if they don’t act like a ‘publisher’, that is, not censor at all on their own initiative, or (2) Censor all they want, like a publisher does, but then open themselves up to all the ordinary liabilities provided by law for every other kind information dissemination sector?
If we are to preserve what is left of the free character of our society, we will need to update our legal concepts and institutions to adapt to important changes in our situation.
Here is my proposal for a new and necessary legal concept – Implied Preemption From Sovereign Prerogatives.
In the case of speech-regulation – the most important issue and use-case of the concept currently before us – this translates as a rule that means only the state or local government can regulate speech, and if there also happens to be restrictions of prohibitions on the state’s capacity to restict, then that applies generally. In other words, if the state can’t do it, then ‘nobody’ can. (Not ‘nobody’, but those recognized as having sufficient social power, e.g., mostly employers, universities, and social media companies – more or less along the lines of the restrictions on freedom of association promulgated in the wake of the Civil Rights era, and based on the same general argument.) Let me explain.
One model is the “Dormant Comment Clause”. In the DCC, the idea is that the states can’t act in ways that discriminate against interstate or international commerce or otherwise interfere with the scheme laid down by federal law, because the Constitutional granting of the commerce regulation power to the federal government gives rise to an inference that this power is the exclusive province of the federal government. Another model could be the recent immigration law-preemption result in Arizona v. U.S. (2012).
The idea is that certain the questions involved in the management of certain kinds of general social conditions that touch on the fundamentals of the kind of society one is trying to sustain, ought to be exclusively political questions managed by political processes, which, in the case of American Democracy, means (to twist some words from Lincoln’s first inaugural) that only the people will be their own rulers. If we’re going to have anti-discrimination policies, then this is simply another realm in which most private entities are obligated to get out of the game of scrutinizing content and picking and choosing entirely.
Indeed, I highly suspect that most of these companies would be relieved and frankly overjoyed to be able to respond to the SJW rabble-rousers that of course they’d love to cesnor this or that, or fire him or her, but that they can’t because their hands are tied. It would make their jobs a lot easier and cheaper.
Now, that’s not to say that there isn’t potentially unlawful content that should be removed. But the implementation of such a legal concept would put providers in the position of passive recipients of government requests to remove certain content, those requests being subject to whatever general restrictions there happen to be on the state action in the domain of content management.
In such a world, Chase and Paypal don’t get to pick and choose their clients on the basis of politics or ideology or speech, and instead much stay focused on the application of financial rules and regulations. Twitter or Facebook doesn’t get to silence or shadow-ban you based on your speech, just like we would expect they would unable to do so based on one’s race, religion, or sex. It creates a wall of separation between ideology and private commercial imposition of auxiliary and supplemental social regulations, which past a certain scale, no entity but the state is ever entitled to do.
Another way to describe the concept is that it is a natural extension of the idea of the “Monopoly On Violence” as described as a characteristic of state capacity by Bodin, Hobbes, and Weber. (Of course there are exception to that monopoly which can be characterized as either ‘state-sanctioned licences’ or natural rights (e.g., for self-defense), but in general the concept of only state authorities possesing a legitimate right to use physical force to compel obedience is well-understood.)
The extension is into the more general idea of a Monopoly On Coercion, and the Preemption From Prerogatives concept would forbid private coercion via sufficiently substantial social power in any ways inconcsistent with the overall structure of rights and the government’s policies regarding incentives on behavior and social dynamics.
Threatening to discriminate and cut off one’s ability to use the modern equivalent of the public square or basic infrastructure (to include financial infrastructure) if one expresses the wrong ideas is coercive enough that it should be reserved to the state as being in its exclusive authority and purview. A vigilante is acting like the police without authorization, which is unlawful, because only the state gets to decide who gets to act like the police.
Likewise, private organizations discriminating on the basis of speech are acting like the thought-police, in ways that rise past a threshold of coercion that ought only to be exercised by the government.
That is a compelling analogy.
Existing campaign finance regulations need to be further explored as a means of regulation of deplatforming. Deplatforming and shadow banning are forms of in-kind campaign donations and should be treated the same as any other.
I think campaign finance is far too slippery a body of law, and has proven to be rife with abuses of discretion on the part of the officials charged with enforcement. If a company says it is deplatforming “white nationalists”, it would be impossible to prosecute them on the basis of the idea that they are only helping one political party, since the other party would not cooperate in the prosecution and instead rush to insist that they are against “white nationalists” too. The problem is that if you permit exceptional categories of permitted censorship so long as the targets can be labelled with some vague boo-words with no possibility of genuine due process or defense against the charge, then the companies will just claim in that typically unfalsifiable way that, in their own judgment, this or that inconvenient person passes the test.
On the other hand, ‘common carrier’ and other anti-discrimination laws are well established. Even most libertarians have (to be fair, many out of practical necessity, though some sincerely), have embraced these state encroachments, embracing the usual arguments or coming up with their own libertarian-ish rationalizations and justifications. David Bernstein made what I think is the canonical example of such an argument in the June 2010, “Discrimination and Liberty” issue of Cato-Unbound. Bryan Caplan criticized that case at EconLog in “The Limits of Context”, but, for better or worse, his seems to be a minority position among current libertarian public intellectuals, at least in terms of anyone willing to explicitly articulate it.
If Facebook were to boot someone off for being black, gay, a woman or a Muslim, no one – not even Tyler Cowen – would rise up to defend that as being fully within Facebook’s rights and not a deplatforming instance worth worrying about. It’s apparently only “woke capitalism” abuses we are supposed to tolerate, endure without complaint on ‘principle’, and defend the rights and prerogatives of – as part of the more general project of defending capitalism and markets. Unwoke capitalism, however, gets no quarter, even if it means the enemies of capitalism win the day.
At any rate, the extension of those anti-discrimination principles and requirements on the basis of political speech for major infrastructure or utility firms (and ‘social media platform’ is clearly a form of communications infrastructure), for the purpose of protecting the effective capacity of all citizens to exercise fundamental rights free of coercive restraint, is natural and should be fairly straightforward.
Indeed, as Eugene Volokh has pointed out in “Private employees speech and political activity: statutory protection against employer retaliation”, many states already restrict the rights of employers from imposing negative consequences on their employees on the basis of speech or political activities. That law needs to go federal, and include customers and ‘users’ too.
Capitalism will be better – and better defended – if the capitalists don’t have to deviate from concentrating on their core businesses by constantly signalling in the most obnoxiously conspicuous manners how woke they are all the time.
And they won’t do that if it’s, well, illegal. And if they can’t do it, no one will care how monopoly-like they are. We live with all kinds of monopoly-like public utilities which are required by law to serve all comers. And, because no one is worried about getting cut off, no one’s political anxieties and hypersensitivities are triggered by ‘monopoly’ in those instances.
“Make Woke-Capitalism Just-Capitalism Again!”
While I completely agree with these sentiments about free speech, we do need to recognize that all of attribution trails and the natural frictions that reasonably bounded behavior in the past are melting away.
It would be horrible to give up on the ethical guidelines we grew up with. We’ve invested deeply in new types of communication that are exciting and powerful but are essentially stripped of the metadata we use to manage our relationships.
Consider how unsettling it would have been to find out Walter Cronkite was deeply corrupted by influence from the Soviet Union for over a decade, and we didn’t know it. Human beings simply can’t handle naked information. We’ve always needed to know attribution, context and motivation. The further away from natural communication we get, the more dysfunctional things will become.
Lets see. If we’ve got Russian bots sending off “What about Hillary’s emails?” messages 50,000 times a second to Facebook users in 2016, that’s Free Speech.
Gotcha. Now suppose in 2020 we have a quarter million Chinese bots sending off messages like “Donald Trump ordered 13 people killed while building his real estate empire in the 1980s” with supporting news stories at plausible-looking websites. Everybody here is cool with that also?
Because general principles like Free Speech can NEVER conflict with what emerging technology makes possible. This is one of Moses’s en Commandments, eh?
Racist remarks or Holocaust denial may be uncouth, but in a culture of free speech they should be permitted.
What counts as “permitted”? Do you mean legally, or do you mean “without any social consequence” ? Are you saying that when someone tells a racist joke, it should be considered inappropriate to say anything in response? Are you saying that it would be immoral to tell the guy telling racist jokes that he’s no longer welcome in your home?
Presumably, permitted in the sense that anything else that was similarly “uncouth” would be permitted but things that caused direct harm would not be. So, racist remarks and Holocaust denial should be treated similarly to flag burning.
The unwelcome “innovation” in campus censorship is to object to “hate speech” on the grounds that it makes listeners feel “unsafe”, an attempt to treat hate speech as equivalent to physical violence, which of course is not protected by the First Amendment. Attempts to censor flag burning on the grounds that it violates sacred norms have failed, as did similar arguments for hate speech. Declare that flag burning causes so much emotional distress that witnesses would effectively be excluded from college, however, and suddenly one has a universal rationalization for censorship: “I can’t study (or, increasingly, work) alongside someone that would say that…”
The unwelcome “innovation” in campus censorship is to object to “hate speech” on the grounds that it makes listeners feel “unsafe”, an attempt to treat hate speech as equivalent to physical violence,
Well, some “hate speech” actually is intended to carry a threat of physical violence, even if it does not contain an explicit threat. For instance, with the Charlottesville Tiki torch parade – no speech at all, but just the implicit reminder that fire – in the form of burning crosses – was once used as a way to keep black people in their place. It’s possible that it never occurred to them that black people might find a bunch of white guys walking around with torches threatening, but somehow I suspect that for many of them the association with Klan rallies of the past was a symbolism they wanted to project.
I think the problem is more the expanding definition of “hate speech” and “unsafe” to include all sorts of speech that speakers merely disagree with and emotional distress as a form of violence.
Definitions of vague terms are a matter of authroity (ask any judge). So, an alternative approach is that no one but the government gets to determine what terms that describe prohibited speech mean, and no one but state officials get to enforce speech codes based on principles of harm or danger (and this ought to be broadened to criminal misconduct in general). If someone believes they’ve been criminally threatened, they should complain to the appropriate authority in the criminal justice system. If society has decided that the expression does not rise to a level where it is unlawful, then for it to form the basis of any private institutional action, that institution must have explicitly notified all members of their organizations of the ideological test and requirements for remaining a member in good standing, and with sufficient clarity and fair application to all similarly situated parties in similar incidents to overcome a challenge in court.
Anti-discrimination laws and concepts now need to apply to speech to completely expel companies, colleges, and internet services from the field of the censorship game, as being the sole prerogative of sovereign authority.
It’s certainly fair to say that if a private organization (i.e. Facebook) wants to restrict speech on it’s property, it should make clear what speech is restricted in it’s terms of service. Of course nobody reads the terms of service, but it should be in there anyway.
Actually a friend of mine got temporarily “banned” from Facebook a couple of weeks ago for posting a comment that included the words “men are pigs”. So the perception that Facebook is especially hard on conservatives may be incorrect. It’s probably an automated algorithm that is censoring specific words and phrases.
“Racist” means any implication that disparate impact might not be caused by racism of some kind. This is grounds to get someone fired from their job (James Damore, etc).
When saying something that is true is considered grounds for having someones life ruined, then one doesn’t effectively have the right to state the truth. One is forced to lie, or to remain silent while others lie thus implicitely endorsing their lies.
Did American *culture* ever actually support free speech? Culture is closely related to majority and when have majorities been enthused about protecting minority rights? Perhaps to some extent when there are many issues and everyone is in a minority on some of them, but certainly not when a small, identifiable group becomes unpopular — then the majority (and culture) say to supress them!
First Amendment legislation plays two roles. First, it ensures that the government cannot silence criticism of the government itself. Second, it fights against a *too responsive* government that passes popular laws. In this role, culture is the underlying source of the transgression.
The link that Prof. Arnold provided goes to a long article at Cato–something that takes a while to plow through, and is in measured acadamese language. I had trouble getting through it.
In order to follow the spirit of that article, I think something relevant to this discussion is the way Milton Friedman grappled with the liberties of the First Amendment in _Capitalism and Freedom_ which is probably still worth reading today.
Friedman took a jaded view of what liberties could be guaranteed by popular discussion and majority voting. As I recall, he argued that the Bill of Rights was a precious heritage. He thought that freedom of speech, of the press, etc. might never be passed by American voters in the country during the time he was writing. He argued (perhaps facetiously) that you could not pass case by case legislation to support the right to publish works that advocated vegetarianism (let alone atheism or free love or anything controversial).
Friedman argued that freedom of the press is facilitated by free markets and private property. Various minority ideas are propagated in the USA because somewhere you can find a privately owned publisher who will print and distribute the material. Thus at the time Friedman wrote his book, the USA had a free enterprise system in which newspapers existed that advocated Soviet style communism for America. But the Soviet Union did not have a reciprocal niche of newspapers that advocated American style capitalism for the Soviet Union.
My point (sorry to take a while to get there) is it feels like freedom of speech is “going away” because things like Facebook and Twitter and blogs facilitate speech, but it’s not hard to get banned by Facebook or Twitter. Some blogs with controversial ideas (especially regarding race and sexuality) even have trouble getting a company to host their web site, or to get funding through credit card processing.
I would feel more optimistic about freedom of speech in the USA if there was more technical and market infrastructure that enables controversial speech to find expression, and to not suffer from having hosting and payments suddenly withdrawn.
A test example is the argument (erroneous and ill-conceived to my mind) that “organizations that the SPLC doesn’t like and consider Extremist” should find it very hard to process credit card payments or get web hosting. My sense is that such arguments, that there should be an *Index Expurgatorius*, is still working itself out.
I am grateful to brave publishers like Prometheus in Buffalo NY that seems to be willing to publish controversial books, and to Ron Unz who seems willing to publish various controversialists at Unz.com. All kinds of weirdos are now at Unz.com, because at least *someone* will notice them there and Ron Unz is not squeamish about letting them blog there.
In my opinion a decent example of a relatively harmless blag that can’t get traction on Facebook is “Ethics Alarms.” The algorithms seem to reject any attempt to place Ethics Alarms on Facebook. Why? We can’t tell. The lawyer who runs the blog, Jack Marshall, suspects it is because he refuses to drink the “Trump is not the legitimate president” Kool-Aid ™. In addition, the blog tends to lean heavily against the rationale for many current viral outrages in the news, and one can suppose that many public figures discussed in the blog wish nobody would notice it.
As an example, I just tried to share a post from Ethics Alarms to Facebook and could not.
The URL I tried to post was this.
https://ethicsalarms.com/2019/05/30/ethics-dunce-the-studio-theater-washington-d-c/
error message from Facebook.
“Can’t Download: Could not retrieve data from URL.”