And sure, it is a golden age of free speech—if you can believe your lying eyes. Is that footage you’re watching real? Was it really filmed where and when it says it was? Is it being shared by alt-right trolls or a swarm of Russian bots? Was it maybe even generated with the help of artificial intelligence?
There have been a number of stories bemoaning what has become of free speech. Fore example, WIRED has one title, It’s the (Democracy-Poisoning) Golden Age of Free Speech by Zeynep Tufekci (Jan. 16, 2020). In it she argues that access to an audience for your speech is no longer a matter of getting into centralized media, it is now a matter of getting attention. The world’s attention is managed by a very small number of platforms (Facebook, Google and Twitter) using algorithms that maximize their profits by keeping us engaged so they can sell our attention for targeted ads.
This leads to the conclusion that, “all of this invalidates much of what we think about free speech—conceptually, legally, and ethically.” Censorship need not silence free speech it can drown it out and manipulate our attention. You can be heard, but it makes no difference. If you are heard then you get subjected to viral attacks that make it too expensive.
She then goes after John Stuart Mill’s idea of the “marketplace of ideas” where the truth will win out. At the moment the marketplace of ideas seems to have become the platform of targeted attention.
And the famous American saying that “the best cure for bad speech is more speech”—a paraphrase of Supreme Court justice Louis Brandeis—loses all its meaning when speech is at once mass but also nonpublic. How do you respond to what you cannot see? How can you cure the effects of “bad” speech with more speech when you have no means to target the same audience that received the original message?
Tufekci right points out that underlying the marketplace argument and the modern belief in the democratizing effect of the internet is the view that more connection and more communication equals greater freedom of speech. What we need is not more, but a healthy public sphere where open debate is possible.
By contrast, Mike Godwin in Slate wrote an article on Did the Early Internet Activists Activists Blow It? (Feb. 14, 2020) Godwin is/was a cyberlibertarian and internet lawyer who was hired by the Electronic Frontier Foundation in 1990. He provides a useful history starting with,
Although the First Amendment was chiseled into the Bill of Rights in the 18th century, most of what we’re referring to when we talk about American free-expression law is only about a century old. Still, cases like Near v. Minnesota (1931), New York Times v. Sullivan (1964), and Brandenburg v. Ohio (1969) have always seemed as foundational to me as the First Amendment. And the 20th century’s First Amendment cases helped inform the development of international freedom-of-expression principles in the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1976).
He reminds us of various legislative attempts to impose encryption technologies and “decency.” He admits that what they (the cyberlibertarians at the EFF) got wrong was how a small number of big platforms would end up dominating their markets. He then focuses on Section 230 of the Communications Decency Act which was left standing and which says that “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.” This section protects platforms from having to censor content while allowing them to remove selected content if they wish.
He concludes with the example of the Wikipedia which he sees as an example of a platform that shows the “promise of the good works that ordinary people freed by the internet can create.” In other words, we need more of it, not less.