Beyond Free Speech Narrowly Considered

Like John Samples, I find Thomas I. Emerson’s exploration of the social value of the First Amendment persuasive, and it has been profoundly influential on my thinking as a civil libertarian. (Note to Amazon—you want to fix the link to Emerson’s The System of Freedom of Expression, which isn’t findable when you search under the author’s full name.) Freedom of speech, as Emerson explains, is valuable for more than just its necessity to the proper function of democracy, and John particularly underscores this point when he says that, in terms of free speech’s role in individual self-fulfillment, “social media is an unalloyed good.”

Dovetailing nicely with John’s channeling of Emerson is Kate’s discussion, which points us to Yale law professor Jack Balkin’s great 2004 article about “digital speech and democratic culture.” Kate argues that our democratic culture is bigger than just voting—or politics generally, and I’m compelled to agree. Fans of Balkin’s 2004 article—and I count myself among them—will likely also enjoy Balkin’s more recent articles that address the intersection of the public interest, government power, and the companies that operate the internet’s digital platforms. (You can start with Balkin’s recent law-review article – summarized helpfully in Balkin’s blog post earlier this year – and trace it through its footnotes to Balkin’s developing an increasingly systematic appraisal of internet culture and its relationship to our law and values. Taken together, Balkin’s articles are must reading for anyone grappling with the impact and implications of today’s social media and other internet platforms.)

And I especially like Kate’s conclusion:

To focus a discussion about the internet’s role in democracy only on its ability to enable discussions of pure politics or information for actual voting is like arguing that one leg of a stool is the most important. Instead, the real concern for democracy should be not on fake news but instead on preserving free speech online in order to continue to enable a robust and vibrant democratic culture.

All too often, we allow ourselves to yield to the easy temptation to understand freedom of expression in terms of its political, democratic value. I perhaps differ from Will in that I may think freedom of expression, including what he dismisses as “babble,” is more central to governance of our democratic republic than he does.

Furthermore, I’d argue that my more expansive view of the importance of freedom of expression, especially on comparatively new platforms like social media, reflects a more expansive consensus about the value of freedom of speech in the modern era. That is, I think, the thrust of what Balkin discusses in his 2004 article when he criticizes the Alexander Meiklejohn tradition of free-speech-to-promote-democratic-deliberation as “only a partial conception, inadequate to deal with the features of speech that the new digital technologies bring to the foreground of our concern.”

This expansive consensus about freedom-of-expression functions that we in the United States associate primarily with our First Amendment are also recognized and supported—not for their mere political value but simply as individual liberties—by other national and international rights instruments around the world, including the International Covenant on Civil and Political Rights. Most modern governments either commit themselves to freedom of expression as individual liberty—including how this liberty is exercised on social media—or else they at least try to give the appearance of doing so. Even the lip service to free speech that most nondemocratic governments offer nowadays is a sign of progress—only a few centuries ago governments’ talk of the need to protect individual liberty was the exception rather than the rule.

In my own work as an advocate of online freedom of expression, recognizing that we always need to consider online freedom of expression in terms of its wider individual-liberty importance rather than in terms of its importance to democratic governance, came to me as an epiphany back in 1995. That’s when I listened to a fellow speaker at a University of Texas event (the Austin institution is my alma mater) decry how people were exercising their freedom of speech on the newly arrived internet. As I recounted in Wired that year, my fellow speaker was ready to dismiss the importance of internet speech that isn’t directly concerned with political change:

If the Internet is such a tool of democracy, [Gary] Chapman wondered, why isn’t it being used to organize activist projects? Instead, Chapman complained,net.folks too often choose to exercise their vaunted freedom of speech by focusing on “trivia and sleaze.” This is troubling, he said, because the purpose of freedom of speech is to inspire and promote social and political progress - to “stimulate collective action.” For Chapman, “effective, potent free speech” - the kind that leads to progressive political results in the physical world - is morally superior to the anarchic, selfish free speech of the Net, which is “palpably disengaged” (how does one “palpate” disengagement?) from the crises facing our nation.

So when Will described most use of social-media platforms as “pointless babble”—although allowing that sometime this “banality” is “sweet”—I heard echoes of the same dismissiveness of internet freedom of expression that I believed more than two decades ago might pave the way for a new imposition of censorship. I still worry about that today, especially in light of the current wave of arguments that social media or the companies that currently host these platforms are out of control and socially destructive. My response now, as it was then, is that the social channels of expression we adopt for fun will ultimately turn out to be instruments not only of fundamental individual liberty but also of democratically driven social progress.

To be sure, I understand and sometimes empathize with the impulse to constrain social media—it’s new, rapid-response, and sometimes sometimes scarily powerful. (That’s why I think Kate’s focus on the #metoo movement in this year’s social media is spot-on.) I even sympathize a little bit with the impulse to take a “hard break” from social media, as one former Facebook executive urged recently. But my own experience suggests that, rather than take a “hard break,” it serves us all better to take a few breaths. The current moral panic about social media isn’t the first one our culture has had to process—consider, for example, the worries about cheap paper—and it won’t be the last. We owe it to our posterity to treasure and defend the new liberty we’ve got, not just because it helps us govern ourselves, but because it helps us become ourselves.

Also from this issue

Lead Essay

  • We expect that voters should be well-informed, and to that end the press is essential. Yet reconciling democracy and expertise is no easy task, and examples of the press behaving badly seem all too common, particularly in the form of fake news. Yet Rinehart argues that concern over fake news may be overblown, and he suggests that our democracy’s real problems lie elsewhere.

Response Essays

  • John Samples draws on Thomas Emerson’s Toward a General Theory of the First Amendment to argue that social media is doing a reasonably good job at satisfying four widely shared values. He argues that it is doing particularly well in contrast to the television monoculture that preceded it.

  • Mike Godwin argues that social media is still in its infancy, and it is much premature to declare it “broken.” He adds that non-political expressions of sociability should not be dismissed as valueless; they have great value both in themselves and as part of the process by which a republic is formed and perpetuated.

  • Kate Klonick argues that social media has empowered individuals to create a democratic culture that is much larger and more powerful than just what they do at the polls. Social media allows grassroots activism to work in new and important ways that don’t always aim at changing the way people vote, but that do change society all the same.