Free Speech as Norms Erode

In 2019—so we might wishfully imagine—Facebook found a technological fix for its problems with fake news, hate speech, and German bureaucrats. Wheeled in by a contractor who dubbed it only the Black Box, a refrigerator-sized device was plugged in, turned on, and presto! The device could gather news and information from sources around the world, evaluate their provenance, determine how high to place them in users’ feeds, and even solicit new creative content. Not only could it sniff out fakers and shut out haters, it could actively investigate suspicious posts and even place a phone call to check them out. And if it made a questionable decision, it could account for and adjust its judgment, even issuing a correction if necessary.

Understandably, Mark Zuckerberg was impressed, and so one day he unscrewed the Black Box and lifted the lid. Inside was a human person with thick eyeglasses, a cup of coffee, and the A.P. Stylebook. In other words, an editor.

There is nothing new about demands to censor or suppress speech deemed hateful or discriminatory, but the rise of social media platforms, Facebook especially, has demolished the barriers that once made it hard for trolls and bots to reach millions. In response, as Jacob Mchangama notes, Germany and the EU have established rules requiring the removal of illegal speech (which includes speech deemed hateful)—on penalty, in Germany, of stiff fines. Writes Mchangama:

In Germany alone Facebook operates a “deletion center” with more than 1,200 “content moderators” who determine whether Facebook posts violate German laws. In effect the EU and Germany has strong-armed Facebook and Twitter to enact a privatized censorship regime where laws are interpreted and enforced by faceless and nameless employees with no public scrutiny.

Social media like Facebook pose a challenge partly because no one seems sure what they are. Mindless platforms and conduits, like graffiti walls or telephone wires? That was how they seemed initially. On that model, the less they intervene in what goes on within their networks, the better. Gradually, however, understanding has migrated in the direction of acknowledging that the platforms are not neutral; they exercise editorial judgment, whether human or algorithmic. Facebook gathers news and information, prioritizes and packages it for readers, and sells readers’ attention to advertisers. We have a term for such a business: a publisher.

Although social media platforms are new to publishing, the content problems they are dealing with are as old as the hills. Any professional journalist will tell you that an uncurated publishing platform will be swamped with sewage; that is why the professional editor is the indispensable element of the news business. Any professional journalist will tell you that reader-generated content will often be scurrilous or phony; that is why newspapers check every letter to the editor.

Facebook can’t edit everything, but thinking of it as a publisher makes the flaws of the German approach clearer. Editorial standards set in law and enforced by bureaucrats are both overbroad and ineffective. Responsible publishing judgment, backed by laws against libel, threats, and other traditionally actionable abuses,works better. Journalists have been successfully exercising it for generations.

Facebook’s challenge is that it is has a vast audience and hosts more content and communities than even it can keep up with. How could it edit all of that stuff? Zuckerberg’s answer: a new kind of editing. First artificial intelligence will boil the ocean (as they say in Silicon Valley), sifting huge quantities of data to identify and rectify most problems; then thousands of humans will make calls in hard cases. How well Zuckerberg’s hybrid model will work is impossible to know in advance, but it deserves a chance. It may create its share of be controversies, but it won’t be as chilling and crude as the big stick of heavy fines and legal investigation. Confronted with controversial content, editors weigh the content’s potential offensiveness against its value. Hate-speech laws weigh only the potential offensiveness.

In May, when the world was celebrating the royal wedding in Britain, Chuck Hobbs, an African-American lawyer and commentator based in Tallahassee, wrote a Facebook post denouncing the British crown’s history of colonialism and racism. He included a photo of a young Prince Harry wearing Nazi regalia at a party. “The very essence of white privilege, especially for ‘nobles,’ is to have people make excuses for twisted behavior, such as Harry’s decision to wear a Nazi uniform,” he wrote. Facebook suspended his account.

But that wasn’t the end of the story. After former ACLU president Nadine Strossen—among others (including me)—spoke up on Hobbs’s behalf, Facebook reversed its decision. Something to think about: how would Facebook have behaved if it had faced a fine for failing to remove “hate speech”? My guess is that Hobbs would still be in exile.

Mostly, Mchangama’s essay concerns itself not with new social media but with old social regulations. As he shows, the EU and the nations of Europe—in fact, the nations of everywhere—have long afforded less protection to speech than does the United States. Mchangama cites examples of the chilling and perverse effects of such laws. As Strossen shows in her important and comprehensive (yet brilliantly concise) new book, Hate: Why We Should Resist It with Free Speech, Not Censorship, fighting hatred and bigotry by banning hate speech is like fighting global warming by banning thermometers. Even on its own terms, it does not work.

In the past, if I haven’t been as alarmed by Europe’s speech codes as Mchangama is, it’s because those theoretically oppressive statutes are embedded in fundamentally free societies, whose publics will tolerate a certain amount of bureaucratic foolishness but not wholesale censorship. On that score, however, my confidence has been shaken. Demagogues have arisen in the heart of Europe and are making inroads against liberal norms and institutions, and even where they are not in power, they have found shockingly broad public support.

Here at home, the president is a self-acknowledged internet troll who threatens to yank the broadcasting licenses of critical media outlets and calls news media the enemy of the American people. Every episode of Mchangama’s indispensable podcast series begins with the chilling sound of the U.S. president saying, “Somebody will say, ‘Oh, freedom of speech, freedom of speech.’ These are foolish people!” Disinformation, trolling, and hate speech laws may not be something new, but Donald Trump is.

And so, herewith, a friendly amendment to Mchangama’s essay. I share his concern about creeping bureaucratic censorship, but I’m more concerned about the creeping corruption of democratic norms. In the hands of Theresa May or Emmanuel Macron and their supporters, hate speech laws worry me a little. In the hands of Trump or Viktor Orban or Jaroslaw Kaczynski or Marine Le Pen and their supporters, they worry me a whole lot more. In America and in Europe, the leading menace to free expression stems less from our laws than from our politics—a fight which, alas, is only beginning.

Also from this issue

Lead Essay

  • Jacob Mchangama describes what he terms a “cross-fertilization of censorship,” in which regimes both free and unfree are in the process of copying one another’s restrictions on expressive freedoms. More liberal countries still frequently restrict hate speech, while less liberal ones use those restrictions to justify still more restrictive acts. The world’s centuries-long march toward freedom of expression seems to have halted. Can it be restarted?

Response Essays

  • Anthony Leaker characterizes the recent free speech “crisis” as mythical. It is the product of far-right and indeed fascist propaganda, and we can know that this is so by observing the purported victims in the “crisis:” They are right-wing, successful, and absolutely not being persecuted. Indeed, they dictate the terms of present-day debate, exactly as people like them have always done. In this way, Leaker denies that the United States has been, or is, a force for liberty at all. Political speech does well when it liberates the oppressed, but the type of speech under discussion here is nothing of the kind.

  • Is free speech in danger? Jeremy Waldron sounds a skeptical note, and he offers a series of challenging methodological questions regarding how to think about free speech and public policy. Among others, he urges that we pay more attention to the difficult problems of cross-country comparisons and the interaction between law and private social sanction.

  • Jonathan Rauch urges a reconsideration of what social media are: Rather than neutral conduits for the ideas of others, social media platforms should be thought of as publishers in their own right. Everyone in the publishing industry knows the value of an editor, who helps to weed out low-value content. But the law has relatively little to offer the editing process, and politicians today seem increasingly determined to erode not only free speech norms, but other norms of democracy as well.