Freedom of Speech in a Perfect World

 

By David K. Shipler 

                In a perfect world, everyone would be able to distinguish between ridiculous absurdities and reasonable possibilities. Everyone would be curious. Everyone would be open to revising preconceptions. Everyone would be canny enough to drill down beneath the superficial slogans to the facts, to hear the counter-argument, to entertain an opposite viewpoint, and to arrive at an informed opinion based on a foundation of truth.

                In that perfect world, populated by perfect human beings, Facebook, Twitter, and YouTube would not have banned former President Donald Trump; The New York Times would not have fired its editorial page editor; and the Supreme Court would not now be considering whether a school can punish a student for lobbing online obscenities at the cheerleading squad. Trump’s pro-violence fulminations would have fallen on deaf ears, a senator’s published call for military force against protesters would have lacked resonance, and school officials would have merely shrugged.

                Freedom of speech in that utopia of reality-based common sense would be practically unfettered. The restrictions imposed by law—which are very few in the United States thanks to the First Amendment—would be even weaker. Informal restraints and punishments in the private sector (where the First Amendment does not apply) would not be necessary: Neither the racist slur, the conspiracy theory, nor the personal smear would gain traction in a decent public forum.

                Thinking about that imaginary world is kind of sad, isn’t it? Because it’s not what we have. It’s a fantasy. Instead, in Pogo’s cartoon words, “We have met the enemy, and he is us.” We ourselves are the enemy of free speech, because our behavior invites the impulse to censor. We allow pernicious words their impact. We filter facts through sieves of ideology and identity, selecting beliefs only within our zones of comfort. Our gullibility, our stubborn aversion to ambiguity, our political tribalism and dogmatism, our resistance to contradiction have all accumulated into a sense that we are acutely vulnerable to words, that our very democracy might tumble down in a torrent of ugly, nutty, vile words. Hence the supposed remedy: the wave of erasing, cancelling, punishing, banning to satisfy a yearning for blank spaces and blessed silences.

                Think for a moment how cheerless it really is for an open, pluralistic democracy to be deeply relieved not to read or hear the utterances of a former president. Think how bizarre to depend on a few private companies to suppress lies that fuel insurrection. How many of us devotees of free speech quietly celebrated the other day when Facebook’s oversight board ruled that banning Trump was legitimate after the January 6 invasion of the Capitol? Yes, the board took issue with the “indefinite” nature of his suspension, because open-ended uncertainty was not in Facebook’s rules. Yes, the board urged that the ban be reviewed in six months under clarified policies. But for now, at least, he is denied that platform, which feels merciful. Is that healthy?

                Wouldn’t it be healthier for Trump to be able to rant openly at the margin, where he belongs, and be widely rejected for what he is—a racist con artist, a dangerous demagogue, an aspiring dictator? Wouldn’t it be healthier to have an American public that could be trusted to decry speech that is factually wrong, scorn speech that is intellectually corrupt, and condemn speech that insults and incites?

In truth, though, the United States is not a healthy democracy. It is an unhealthy semi-democracy. It faces a rising far-right now channeling its major themes of white supremacy through the Republican Party, which in turn grows brazenly bigoted and anti-democratic.  

Are limits on speech the answer? Curbs on speech might soothe the moment, but they don’t foster informed and responsible thinking. And they certainly don’t curtail the spread of extremism. Germany’s strict laws against hate speech, which would be unconstitutional in the American system, have not prevented the flourishing of neo-Nazi and other far-right movements there. According to Cynthia Miller-Idriss, the author of Hate in the Homeland, German activists have found clever evasions. These include removing the vowels of certain prohibited words and arguing, successfully, that the resulting strings of consonants are not words in the legal meaning.

In the United States, banned users of social media have migrated to corners of the dark web or smaller platforms, where they carry on as before, on sites more difficult for law enforcement to monitor. It may be that their disinformation is less easily available to the wider public, but with Republican conduits for its distribution, it still works its way into the mainstream as relentlessly as a river finds the least resistant pathways to the sea.

The First Amendment has been interpreted by the courts to restrain the government from limiting the inherent right to freedom of speech except in such egregious cases as libel, incitement to violence, some forms of threat, child pornography, and invasions of privacy. There are high bars to proving those violations, though, and the prohibitions must be content neutral—that is, not disfavoring one viewpoint over another. A local ban on loudspeaker political campaign trucks at 2 am, for example, must apply to all candidates, not just one party or another. This leaves a broad landscape for speech in America, as it should be, and it’s quite hard for people to bump up against its frontiers.

In the private sector, however, the First Amendment generally does not apply, leaving institutions empowered to punish employees who post racist tropes, for instance, or even have their pictures taken at the Capitol uprising. Just as privately owned newspapers and broadcasters can pick and choose which viewpoints to publish or air, social media platforms may allow or prevent whatever opinions they wish. No law requires or prohibits them from distributing or barring Trump or any other figure whose posts they find offensive. And that’s where controversy about policing speech is now located.

Facebook, Twitter, YouTube, and other platforms are neither publishers nor public squares, neither responsible for the ideas they distribute nor entirely exempt from informal accountability outside courts of law. If you libel someone in an article for The New York Times, the victim can sue both you and the paper. But if you post it on Facebook, only you can be sued. Facebook and other social media companies are immune from libel suits under a federal protection that some politicians want abandoned. If that happens, the platforms will presumably have to screen every post to be sure it’s not libelous or an invasion of privacy.

Yet as we’ve seen, the platforms come under strong social pressure to censor and to ban, and most now have rules and staff combing through postings to purge bigoted, inflammatory, threatening, inciting, and other memes and statements that strike the owners as offensive or dangerous. The standards are inconsistent and erratically enforced, and maybe that’s to the good.

Raucous debate that includes even despicable statements provides the oxygen of a pluralistic democracy. So calls for more vigorous private censorship raise the obvious concern: If too few people have too much power to control speech through their private companies, nothing guarantees that they will be the highest-minded models of civic virtue. Malice, bias, and propaganda for one side or another can poison the air we breathe.

Nor can government jump in to regulate, as some have advocated. Imagine a Trump-like administration deciding what Facebook could and could not post. The effort would probably fall under the weight of the First Amendment, if the Supreme Court stays faithful to its robust defense of the right to speech in the recent past. But maybe not. You never know. Terrible tweets of big lies and conspiracy fantasies are not benign, as we saw on January 6. In a mood of fear, rights can vanish.

There are two answers, neither of which is a complete solution. First, because no private or governmental censorship can truly silence, diversity of media is a natural protection against the tyranny of speech control. If you can’t say it here, you can say it there.

Second, the enemy is us, and every teacher in every classroom and every school needs to step up to the patriotic duty to preserve our open democracy by teaching and teaching and teaching how to read and think critically, how to read and hear with discernment, how to judge sources, check facts, and apply good sense to negotiate through the whirlwind of falsehoods that rip around us. Only then will we retain our footing in a world that won’t be perfect, but might be more perfect than the one we have.