Free Speech and Censorship: Let's Drill Down

Define terms and then apply them fairly across partisanship and across digital and analog

Jun 23, 2023

Hello friends,

I’ve been writing a lot about free speech and censorship this year. So here’s my attempt to distill the topic down to some core thoughts.

Let’s start with the basics. Free speech is one of the bedrock liberties of American democracy. It is enshrined in the first amendment to the U.S. Constitution, which forbids the government from making any law that "abridges the freedom of speech."

Freedom of speech in the U.S. is broader than in most countries, but it is not absolute. U.S. courts have outlined a few limitations on the right over the years, forbidding speech that could incite "imminent lawless action" or any promotion or distribution of things such as child pornography.

A recent incident at Stanford Law School shed light on another limitation on free speech. A group of Stanford law students heckled a conservative judge who had been invited to speak to the campus chapter of a conservative group, and then shouted him down when he tried to proceed with his remarks.

The dean of the law school, Jenny Martinez, sent a clear message to the Stanford law community: there is no First Amendment -- or Stanford -- protections for what the courts have called a "heckler's veto," in which a group tries to silence a speaker at an organized event by making more noise than the speaker.

"The First Amendment permits the regulation of speech that ‘substantially impairs the effective conduct of a meeting,’” Martinez wrote in a 10-page memo. “Modern First Amendment law does not treat every setting as a public forum where a speech free-for-all is allowed."

Martinez's memo resounded around the country, and free speech advocates hailed it as an important defense of this fundamental right.

At the same time, many conservatives decried the incident as an example of an ongoing cancel culture epidemic. Some, such as Twitter CEO Elon Musk, call this a "woke mind virus."

But free speech on college campuses is also under assault by some on the right, who are trying to use government power to shut down speech they don't like, which they often label as "woke." You might call this an “anti-woke mind virus,” because the “mind virus” that Musk and others decry is when someone tries to shut down debate and discussion of a topic.

Republican-controlled legislatures in several states, such as Florida, Tennessee, Idaho, South Dakota, Oklahoma and New Hampshire, introduced laws in recent years that free speech group the Foundation for Individual Rights In Education, or The Fire, have labeled curricula bans. In other words, these laws would have used state power to forbid the teaching of ideas that Republicans disagree with around issues of race and sexuality.

FIRE worked with state legislators in all but one of these states to change these proposals before they became law so that they did not infringe on academic freedom. But in Florida, Gov. Ron DeSantis and the GOP legislature pressed forward with a law that FIRE said still constitutes a ban on free speech.

FIRE and other groups sued to stop the law and a federal judge has halted the DeSantis-backed law — which the governor touts as part of his "war on woke" — with a temporary injunction. "If liberty means anything at all, it means the right to tell people what they do not want to hear,” the judge wrote.

So at college, free speech is under assault from both left and right. But when you take the free speech debate into the online space, that's when things get even more interesting.

Free Speech and Censorship Online

The Stanford law school students defended their shouting down of a conservative judge by saying that the answer to speech they don't like is more speech.

That's a line that many conservatives use in arguing against any attempts by online social media companies to censor content on their platforms: the answer to bad speech is more good speech, they say.

But analysts have found demonstrable evidence of organized efforts by government and private actors to flood online spaces with disinformation and lies, using bots and trolls and by figuring out how to manipulate algorithms to amplify misleading content.

"We are in a world where we see freedom of expression being cycnically used .. to spread doubt and confusion through bots and trolls, through amplified and targeted disinformartion," said Peter Pomerantsev, author of This is Not Propaganda: Adventures in the War Against Reality.

And so while many say that attempts by online platforms to remove misleading or false content is censorship, experts like Pomerantsev say that good information is being censored in a different way: by an online “heckler's veto” of noise from those who want to drown out accurate information, or speech they don't like.

Here's how journalist Zeynep Tufekci put it in her 2017 book Twitter and Tear Gas: The Power and Fragility of Networked Protest:

Rather than a complete totalitarianism based on fear and the blocking of information, the newer methods include demonizing online media and mobilizing armies of supporters or paid employees who muddy the online waters with misinformation, information overload, doubt, confusion, harassment, and distraction. This in turn makes it hard for ordinary people to navigate the networked public sphere and sort facts from fiction, truth from hoaxes.
Whereas a social movement has to persuade people to act, a government or a powerful group defending the status quo only has to create enough confusion to paralyze people. The Internet’s relatively chaotic nature, with its surfeit of information and weak gatekeepers, can asymmetrically empower governments by allowing them to develop new forms of censorship based not on blocking information, but on making available information unusable.

Creating confusion to paralyze people.

That’s what Trump adviser Steve Bannon meant in 2018 when he said, “The Democrats don’t matter. The real opposition is the media. And the way to deal with them is to flood the zone with sh—.”

Is there a right to be published or broadcast?

Another key wrinkle in the online debate is that there is an often overlooked distinction between free speech and amplification. If a random person starts shouting in a public space — within the broad limits of protected speech — they may be allowed to do so, but they do not have the right to have their speech broadcast electronically to thousands or millions of people, which is what social media does.

All social media companies engage in content moderation of some sort, in order to make their business product something that users will want to use. Sometimes that means limiting the reach of a post. Sometimes it means removing content. Even former Preisdent Trump's social media platform, Truth Social, removes content that violates its ban against any content it deems "obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable," which includes "sexual content or language."

There's a strong case to be made, in fact, that when private social media companies remove content, they are engaging in constitutionally protected speech. That question is being litigated in courts at this moment, in a set of cases that are likely to be decided by the Supreme Court, Moody v. Netchoice (Florida) and Netchoice v. Paxton (Texas).

The big concern for some conservatives is whether social media companies like Twitter and Facebook have, in the past, discriminated against certain points of view based on a bias against Republicans or conservatives. The Twitter files, released by Musk selectively to a few hand-picked journalist, raised questions about whether Twitter has done this in the past during the COVID-19 pandemic and around a few other political issues.

The Twitter files did not prove government censorship, but it raised questions about government involvement with social media content moderation decisions. It was also a selective and incomplete batch of information.

"I wish that the full corpus of the emails and all the information was released, so that more journalists and everyone in the world could see everything. Because I think there is some context missing,” former Twitter CEO Jack Dorsey said recently. “If everything was available, I think we’d have a better picture."

But if these platforms did discriminate against a point of view, and even if they were within their constitutional rights to do so, they have claimed to be viewpoint neutral and this would be important information for the public with which to lobby them for reform.

To recap, here’s a few of the main points:

Free speech is under pressure from the left and right, in different ways, on college campuses
The ideal of free speech has been abused by bad actors online to “flood the zone with sh—.” Cries of “censorship” by social media companies should be evaluated thoughtfully. Sometimes attempts to remove misleading or false content is an attempt to reduce what some call “censorship by noise.”
There is no legal right to have your speech broadcast to millions
Conservatives believe social media companies have discriminated against their point of view. The Twitter files raised questions about this, and about attempts by both the Trump administration and the Biden administration to pressure social media companies to restrict or remove information. But it was a selective and incomplete picture of these decisions.

Recent photos

Interesting Reads

Hunter Biden plea deal: Are Republicans right that he got a 'slap on the wrist'? by Jon Ward for Yahoo News
RFK Jr.’s reign of error: Correcting the record about yet another false claim he just made, by Jake Tapper for CNN
Transcript: Former Attorney General William Barr on "Face the Nation," June 18, 2023

[Trump] will always put his own interests, and gratifying his own ego, ahead of everything else, including the country's interest, there's no question about it. This is a perfect example of that. He's like a nine year old, a defiant nine year old kid, who's always pushing the glass toward the edge of the table, defying his parents to stop him from doing it. It's a means of self assertion and exerting his dominance over other people. And he's a very petty individual who will always put his interests ahead of the country's, his personal gratification of his ego. But our country can't be a therapy session for a troubled man like this.

The Interview: Jon Ward, by Chris Stirewalt for The Dispatch and AEI

I’ve started a summer music playlist. You can listen to it here: https://music.apple.com/us/playlist/summer-2023/pl.u-WabZ7zYspV1AR

That’s it for this week. Have a great weekend!

Border-Stalkers

Discussion about this post