The Golden Age of Speech

Last week, the publication of an open letter in Harper’s Magazine caused a bit of a stir. In it, the authors contended that, while there has been a necessary reckoning on racial and social justice, it has arrived in concert with the intensification of moral attitudes and ideological conformity. The letter’s signatories, which include writers from Margaret Atwood to Noam Chomsky, Malcolm Gladwell, and Steven Pinker, argue that the free exchange of information and ideas is slowly becoming more constrained, and that intolerance of opposing views is on the rise.

The authors give several examples of the spread of censoriousness, and lay out the context for why they are coming out with a statement now:

We uphold the value of robust and even caustic counter-speech from all quarters. But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought. More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reform. Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes. Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said without the threat of reprisal. We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement.

In the Harper’s letter, the current atmosphere is characterized as a “false choice” between justice and freedom; one which presumes that bad ideas will be defeated by restrictions on open debate, rather than meaningful or persuasive arguments; and one which ultimately hurts the powerless and vulnerable. It praises a culture of experimentation and risk-taking, which it argues would lead to a more tolerant climate and promote ideological flexibility.

The letter is riddled with false assumptions. Institutional choices that its authors disagree with are waved off as “hasty and disproportionate punishments” made by leaders succumbing to external pressure, rather than considered decisions. The ousting of editors, investigation of professors, and barring of journalists is depicted as an epidemic of disproportionate measures; but the authors avoid inconvenient specifics, removing nuance from their examples. Threats of reprisal are conceived of as the inevitable result of a troubling trend rather than a consequence of free enterprise and corporate values.

In a bit of situational irony, some authors felt the need to retract from the letter upon learning the identity of some of its co-signatories. Jennifer Finney Boylan, an American author, recanted her support of the Harper’s letter due to its association with some more unsavory characters. Others chose instead to reaffirm their support for the letter’s contents (irrespective of its other authors) by doubling down on its intent.

Gladwell’s framing of the letter’s intent is disingenuous. While free and open debate are a core component of a liberal society, the letter made a point to denounce a particular brand of dogma and coercion being exploited by right-wing radicals and an increasingly vocal faction of their opposition. The letter was diagnostic, but also prescriptive — claiming that “speaking out” against an intolerant climate is the only way to preserve democratic inclusion.

More than just avoiding specificity, the letter does not recognize that each individual case falls on a spectrum of consequences. I am not an absolutist, nor do I agree with the decisions made in each of the examples the Harper’s co-signatories are (likely) referring to. I acknowledge that each example of oversight comes with its trade-offs. Harper’s own former editor, James Marcus, was fired over a “principled stand” he took on a single essay. He accepted the consequences.

The Paradox of Tolerance

One idea mentioned repeatedly in the Harper’s letter is tolerance. It is brought up once in the context of an intolerant society (and even then, only in reference to its role in restricting debate), but is chiefly used to disavow the authors’ perceived trend of public shaming, ostracism, and the “intolerant climate that has set in on all sides.”

That is insincere. The reason tolerance is such a central notion for discussions on speech is that it sets the boundaries on restorative justice, consequences, and whether speech is justified in accordance with the company, institution, or online platform that harbors them.

When James Watson, an American molecular biologist, made the claim that “there is no firm reason to anticipate that the intellectual capacities of people geographically separated in their evolution should prove to have evolved identically,” he was ousted from Cold Spring Harbor Laboratory (CSHL). As a private, non-profit research institution, CSHL can both recognize the contributions and scientific legacy of Dr. Watson, while repudiating his statements if they run counter to the Laboratory’s mission, values, and policies. After Watson doubled down on these comments in a documentary last year, his credentials from CSHL were swiftly revoked.

The popular comic strip below from xkcd sheds some clarity on this understanding of the right to free speech, and why it doesn’t guarantee freedom from consequences.

The xkcd comic refutes the argument that the free exchange of information and ideas is becoming more constricted every day. It acknowledges the importance of a vibrant culture of public discourse and critique, and does not argue against allowing risk takers or folks with opposing viewpoints to express those openly.

What the comic instead chooses to do is disavow the notion that all types of speech have no repercussions. If a controversial piece runs counter to a magazine’s values, editors can be fired for running them; if a publisher uncovers historical inaccuracies in a book slated for release, it can postpone or halt its release; if corporate leaders make mistakes, they can be ousted for them; and if scientists make unsubstantiated claims, they can have their credentials revoked. The examples above do not represent a breakdown in democratic inclusion, but a rise in editorial accountability.

In any discussion around censoriousness, Karl Popper’s 1945 book, The Open Society and its Enemies, will invariably make the rounds. In it, the British philosopher contends (in a footnote!) that demands for unlimited tolerance could lead to the disappearance of tolerance altogether. He called this the “paradox of tolerance”; from Popper:

The so-called paradox of freedom is the argument that freedom in the sense of absence of any constraining control must lead to very great restraint, since it makes the bully free to enslave the meek. The idea is, in a slightly different form, and with very different tendency, clearly expressed in Plato.

Less well known is the paradox of tolerance: unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. — In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law, and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal.

It’s easy to misread this passage, particularly when it comes to policy prescriptions for how to address intolerance. Popper himself argues that we should always default to rational argument and public opinion to defeat intolerant speech, rather than resorting to suppression; at the same time, he argues we should claim “that any movement preaching intolerance places itself outside the law.” But it’s the right to suppress that should be preserved, if only because the system of laws will not persecute forms of intolerant speech; because there may be ill intent on behalf of intolerant groups, rather than a genuine desire for open debate or argument; and because, in many cases, all preferable methods will fail.

The paradox of tolerance is not an ideal framework for what kind of speech is permissible. It veers dangerously close to a slippery slope fallacy, and argues that society should not take legal recourse against an intolerant movement, even if we should treat such a movement as “[placing] itself outside the law.” But the intent is right — that if society turns a blind eye to the expression of so-called intolerant ideas, or fails to refute them in such a way that they remain damaging to certain groups of people, the implementation of these ideas could be imminent.

Popper himself once argued that “it is impossible to speak in such a way that you cannot be misunderstood.” This is true of the Harper’s letter, which offers broad instances of actions it considers censorious, but leaves it up to its readers to fill in the blanks. All of this is part of what makes it difficult to create a framework for speech and its consequences — that when it comes to placing speech on the spectrum of tolerance, just like prescribing punitive action, results may vary.

Tech, Platforms, and Accountability

As a principle, freedom of speech is somewhat nebulous. To a certain extent, the xkcd comic conflates it with the first amendment, which itself deals with governmental forms of censorship. In a critique of the comic, Pat Kerr writes on Medium that it “ignores non-governmental forms of censorship, including corporate censorship (e.g. internet filtering), and popular censorship via the tyranny of the majority — or, for that matter, the tyranny of powerful minorities!”

Kerr’s discussion of non-governmental forms of censorship is most effective when referring to situations that are objectionable, yet completely within the law. One example is boycotts, which could put dissenters under significant pressure to conform. But it’s unclear from Kerr’s critique why such actions would not, in turn, be a form of free expression. In recent weeks, a number of corporate advertisers have signed onto a boycott of Facebook, pulling their ad dollars from the world’s largest social network over concerns of hate speech on its platform. Moreover, experts maintain that boycotts of a business led by consumers fall under protected speech — look no further than this week.

Let’s now turn to other forms of corporate censorship. A prime example was the lawsuit levied against YouTube by PragerU, an American conservative organization that produces content in short, lecture-style videos. In it, PragerU pursued claims of what it called “overt discrimination” against certain types of speech; from the lawsuit:

YouTube is unique among other global social media platforms because its owners Google/YouTube monetize the site by inducing consumers like PragerU to post content to the site by expressly designating YouTube as a public forum for speech and inviting the public to engage in “freedom of expression” through the posting and viewing of video content and expression. Google/YouTube also promise that they filter and regulate that content under viewpoint and content-neutral criteria that apply equally “to everyone.”

Despite these and other express representations to consumers about the public nature and character of YouTube, Google/YouTube continue to restrict and restrain viewer access to educational videos that PragerU produces and uploads to YouTube for any reason or no reason, no matter how arbitrary, capricious, discriminatory, anticompetitive, or unlawful because YouTube is privately owned and too big to be subjected to legal scrutiny.

This lawsuit is “round two” of the parties’ dispute over whether Google/YouTube are above the law when it comes to regulating free speech and expression on YouTube solely because defendants are private entities who own and operate YouTube for their profit and commercial gain. In the first lawsuit, Prager University v. Google […], the parties are litigating the extent to which naked title defense immunizes Google/YouTube’s conduct from judicial scrutiny under the First Amendment and Lanham Act unfair business practices claim.

There’s a lot to unpack here. In spite of YouTube’s influence and omnipresence, the platform is not a “public forum” that guarantees the freedoms typically reserved between the government and its people. It need not be subject to judicial scrutiny under the First Amendment, because the company is not a state actor, counter to PragerU’s claims — similarly, influence and heft alone do not make PragerU an accredited university.

PragerU denounces two acts of censorship in its lawsuit: YouTube’s removal of third-party ads and its decision to change the settings to “restricted mode” for adult viewing on several videos. It contends that because YouTube performs a “traditionally public function by regulating free speech within a public forum,” it is conferred the position of a state actor, and thus cannot regulate videos based on content or viewpoint. It later reiterated those points on their YouTube channel.

That view is incorrect. The principle upheld by the 9th Circuit — that private entities hosting speech on the Internet are not state actors — remains unchanged. The PragerU case rests on the idea that YouTube’s ubiquity makes it equivalent to a public utility, which means it should be regulated as such. But because YouTube is not a monopoly, the lawsuit’s claims are instead grounded in assertions about the platform’s reach and purported values.

While YouTube is not subject to liability for content placed on its site under Section 230 of the Communications Decency Act (CDA), the video-sharing platform is similarly unrestrained in its policies and practices when it comes to the First Amendment. As SCOTUS reiterated in Manhattan Community Access Corp v. Halleck last year, the free speech clause of the First Amendment “prohibits only governmental, not private, abridgment of speech.”

Federal judges have previously rejected the same argument for similar reasons; from Slate:

It is true that, under certain circumstances, private actions can become a “public function” subject to constitutional limitations. But the Supreme Court has strictly limited the application of that principle to situations in which the government fully delegated traditional state functions to private entities. The chief example is Marsh v. Alabama, in which SCOTUS applied the First Amendment to a “company town” where a corporation owns all property and controls all municipal functions. Later, the court clarified that Marsh’s principle “was never intended to apply” outside “the very special situation of that company-owned town.”

The conservative outlet hinges much of its case on the claim that YouTube’s “promise” of free expression constitutes false advertising by invoking the Lanham Act. PragerU argues that the company’s purported claim to be a neutral public forum represents the latest in “a pattern and practice of knowingly misleading and deceptive advertisement” — while in fact, such claims amount to little more than advertising braggadocio. The legally binding nature of corporate values and advertising were not topics PragerU covered in its video.

Allegations of neutrality violations on the Internet are unlikely to disappear anytime soon. In legislation introduced last year by Sen. Josh Hawley (R-MO) to amend Section 230 of the CDA, Congress would remove the immunity of big tech companies unless they submit to an external audit that “proves by clear and convincing evidence that their algorithms and content-removal practices are politically neutral.” But to exempt companies from publisher liability in exchange for creating a public forum is willfully misunderstanding the intent of Section 230. In this terrific explainer on Techdirt, Mike Masnick reinforces this point:

The law does distinguish between “interactive computer services” and “information content providers,” but that is not, as some imply, a fancy legalistic way of saying “platform” or “publisher.” There is no “certification” or “decision” that a website needs to make to get 230 protections. It protects all websites and all users of websites when there is content posted on the sites by someone else.

To be a bit more explicit: at no point in any court case regarding Section 230 is there a need to determine whether or not a particular website is a “platform” or a “publisher.” What matters is solely the content in question. If that content is created by someone else, the website hosting cannot be sued over it.

Really, this is the simplest, most basic understanding of Section 230: it is about placing the liability for content online on whoever created that content, and not on whoever is hosting it.

In their Letter on Justice and Open Debate, the authors argue that “it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought.” But with more voices represented on the Internet than at any time in its (brief) history, it’s entirely likely that this perception is a matter of scale. Good-faith disagreement is permitted; employers still resort to professional consequences in response to customer complaints; and there has never been a better facilitator for a culture of risk-taking than the Internet.

What has changed are the platforms through which writers now publish or display speech. On the Internet, unlike in a physical environment, conventions of speech are not bound by constitutional amendments. And with an estimated 1.785 billion websites on the Internet, it’s difficult to contend that we live in anything other than a golden age of speech.

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