Wednesday, February 22, 2023

Free Speech on Trial

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." (47 U.S.C. § 230(c)(1))

So, good old Section 230 of the Communications Decency Act is finally up for review by the Supreme Court. I don’t know how the court will rule, but the immunity enjoyed by Internet giants Google, Facebook, Twitter and others could be coming to an end, which obviously would be a game-changer of immense proportions.

This news propelled me to look back at previous essays I’ve published on the matter. Here is one from December 2020:

“First Amendment Alert”

There's a headline in Monday's Post that reads "Trump Leaves Press Freedom in Tatters." That is true as far as it goes, but the problem is far deeper and more multi-faceted than the negative impacts of Trump's time in power.

Yes, he labeled reporters "enemies of the people" and led chants at his rallies of "lock them up" while pointing at the press corps in attendance. That was terrifying and disgusting.

But what was more damaging was that he championed conspiracy theories that represent the polar opposite of what journalists strive to provide, which of course is fact-based information.

Or in Trump's parlance, that would be "fake news."

Beyond all that, even careful observers may have missed Trump's latest attempt to damage freedom of speech by undermining Section 230 of the Community Decency Act (1996), which is the legal underpinning that as a practical matter allows free speech to exist on the Internet.

It essentially allows companies like Google, Twitter and Facebook to avoid liability for the material posted by users, and is the bedrock of how they have been able to grow into massively profitable companies.

Angry at Twitter for labeling some of his tweets as unverified allegations, Trump threatened to veto a critical defense bill unless Section 230 was repealed. Luckily, strong bipartisan support for the bill and for 230 rendered his threat harmless, because any veto would have been overridden by Congress.

But as much as it pains me to say this, Trump had a valid point when he contested Twitter's right to edit the content of his tweets.

Think about it: Do we wish for a giant social media company to be the arbiter of what is true and what isn't? Do we want them to regulate free speech and, by extension, a free press? And Twitter, Facebook, LinkedIn, Instagram, TikTok, YouTube, whether we like it or not, constitute the new public square, especially during the pandemic.

A reasonable case can be made that Twitter and Facebook have violated their Section 230 protection by intervening in Trump's rants and cautioning readers against his opinions. These corporations seem to be acting like editors and doing what we do all the time in journalism. And we are not protected by Section 230; rather we are subject to libel and slander laws.

I imagine that once these issues get litigated, we will be confronted once again by the agreed-upon limits to free speech, and by extension freedom of the press, which is the "don't yell fire in a crowded theater" argument. 

This phrase originated in an opinion written by Supreme Court Justice Oliver Wendell Holmes, Jr. in Schenck v. United States in 1919, which held that the defendant's speech in opposition to the draft during World War I was not protected free speech under the First Amendment. The case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be likely to incite imminent lawless action (i.e. a riot). [Wikipedia]

An additional limit imposed in various degrees by democratic societies concerns hate speech, including Nazi propaganda. Here again, we face the philosophical quandary that when it comes to speech, how free is free?

Just because most of us are appalled by certain statements do we really believe they should be banned?

This whole subject troubles me deeply. I've lived my entire adult life fighting one way or another for a free press and advocating for free speech for everybody. We've all seen how authoritarian regimes limit these freedoms as an essential tool for maintaining power.

Clearly, words are powerful, indeed the pen may be more powerful than the sword. But we have reached a point in history where we are compelled to revisit James Madison's fundamental admonition: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."

In 2020’s America, we the people are deeply divided on that proposition.

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