I am currently trying to learn a little bit about hate speech laws and how they are applied in the digital environment. My main reference here is a great introductory book on the laws that govern new media by Ashley Packard, entitled Digital Media Law.
Here is what I (think I) know so far:
- The First Amendment protects speech, expression, and group assembly from government suppression. You can say almost anything. Of course some forms of speech can and will be suppressed by the government. For example, speech can be restricted if it interferes with military plans, is obscene, or is meant to incite a violent overthrow of the government. But by and large, restraints on speech are very narrow. And, as Erik Bleich’s book about free speech The Freedom to be Racist details, American courts have repeatedly reinforced freedom of speech over the course of the 20th century. The situation is very much the opposite in Europe. As an example, since the mid-90’s it is criminal to publish anything that incites racial hatred in the United Kingdom. Meanwhile you can see a Klan member on Jerry Springer every third Thursday here in the states.
- Packard writes that, when judging whether or not a government regulation constrains free speech on public property, the Supreme Court adopts a forum analysis. There are three types of forums, each requiring more or less protection. A traditional public forum is one that has historically been a venues for free speech. Picture John Adams holding forth on street corner in Colonial times, sidestepping horse manure, holding forth on the essence of liberty. These traditional public forums have been given the most free speech protection. People standing on street corners, assembling in front of town halls, or handing out pamphlets to passersby are generally not bothered by government. Some forums are not traditionally public, but are forums designated for public use. These forums, like a school auditorium open for a debate, can be regulated by the government. However, this regulation cannot be discriminatory – a city government cannot hold a public forum and only allow Republicans to speak. A third type of public property, nonpublic forums are integral to the maintenance of society, and government has the right to restrict speech there. These would be bridges, polling places, and subway stations. Packard writes that although the Internet has been given full First Amendment Protection, the Supreme Court has not recognized it as a public forum.
There are a few things about these basic foundations for free speech that are troubling to me, and lead me to believe that we as a society should consider supporting nonprofit forms of social media. Let me explain….
Land of the Free, Home of the Stock Market
ESPN is in the business of providing sports entertainment. It does a good job of it, and is arguably the most recognizable name in sports the world over. Because sports is such an integral part of American social life, it is often the case that the reporting and commentary that revolves around sports is in effect, also reporting and commentary on social issues. And so content coming from ESPN, given its name and influence, has a disproportionate effect on sports issues that become social issues.
But ESPN is a business. It does not want to go against the tide of public opinion, and risk offending anyone – advertisers may pull out, market share may dwindle a bit, stocks may dip slightly. ESPN has a real incentive to make sure its employees toe the line. And so when Steven A. Smith and Max Kellerman made comments that went against the grain vis-a-vis the Ray Rice domestic abuse story they were suspended.
We (I) may not like the censorship from this very powerful opinion producer and thought leader. It means that the thoughts of ESPN can become the thoughts of the nation. But the reality is that ESPN is a business. They should do this. They are beholden not to the principle of freedom of speech…but to the stock market. As I wrote above, the First Amendment protects citizens from government suppression of free speech, not suppression by companies.
So back to social media. When Twitter and Facebook were being run out of bedrooms and garages, their owners had the luxury of being strident free speech defenders. But as publicly traded companies, that adherence to principle becomes very tenuous. They are beholden to the stock market, not to the users who wish to use their application as an outlet for free speech. Indeed, as Twitter finds more and more ways to monetize their product, they will become even more obligated to consider the wishes of advertisers and not the dude who wants to make his homophobia public.
This is not just alarmist thought. This is reality. Check out this article from The Guardian entitled “Twitter: From Free Speech Champion to Selective Censor“.
The only way to prepare for the inevitable is to think of alternatives to Twitter and Facebook that are not profit seeking.
How to Maintain Free Speech in the Digital Environment
As I mentioned above, Packard writes that the Supreme Court does not consider the Internet a traditional public forum. Therefore, it does not warrant full free speech protections. Its not even a designated public forum, which would also warrant some degree of free speech protection.
Maybe (probably) my reasoning here is too simplistic…but let’s make certain spaces on the Internet public forums, thereby compelling courts to grant them free speech protections. By definition we cannot declare a new space as a “traditional” public forum, but there is no reason why a micro-blogging or social networking site could not be a designated public forum. A space where everyone knows it is for opinion.
As I wrote in Chapter 7 of my book, the Internet of today is completely dominated by market spaces. This is good in some ways because the profit motive powers innovation. People have to know they can make money in the digital environment and that their time and ingenuity will be rewarded. The only reason why Twitter is here is because its originators were tying to make a buck. However, there is more than enough room – and a real need – for non-market spaces. In my book I was talking more about ways to preserve cultural diversity online, but here I am arguing that non-market spaces will help preserve free speech online because they could be seen as designated public forums. We need more non-profits in social media.
There are several advantages to this:
- Because this would be a designated public forum whose purpose everyone understood, mechanisms could be put in place to preserve user’s anonymity and keep the NSA at bay. For example, because there would be no need for the non-profit to keep much user data – it wouldn’t be trying to monetize it – when the NSA came knocking there would be nothing to give them.
- We could get public media right this time. I think many agree that for a variety of reasons, public radio and public television skews left. Maybe the third time would be the charm. Since social media is user driven, it is all up to the users to introduce left, center, and right content.
- Because content would be user driven, its cheap to maintain. Public radio and public television get some funding from the federal government, but not enough to sustain it – thus the constant fundraising drives. Non-profit social media costs exponentially less. A powerful server, high speed Internet, and a few webmasters. That’s all. This means no reason to bring up non-profit social media as an example of “government run amok” as conservatives so often do about public radio or television.
Preparing for the Inevitable
We place great faith in social media websites when it comes to free speech. Right now, Twitter is a private company that is awesome when it comes to giving people a voice. I don’t use Facebook, but my sense is that it also values free speech highly. But there is nothing that would stop these sites from future censorship. And the reality is, while it may appear we are using these applications for free, the people running these companies are working day and night to find a way to make this service pay. Indeed, an article by Mashable says that Twitter is looking into 15 new ways to sell advertisements. It’s a business after all, not a platform for free speech. As such, a time will come when freedom of speech will loose out to the stock market.
Given this inevitable reality we as a society must think of ways to deal with this inevitability. We cannot lose our ability to express ourselves freely on the most socially disruptive medium in human history. We need to nurture non-market public spaces in the digital environment. I don’t know exactly what that space would look like. But its important that we begin thinking about it.