WASHINGTON, February 25, 2020 – There were at least some panelists speaking at an event on “Redefining Free Speech for the Digital Age” who offered a defense of free speech.
Speaking at the New America event in association with the Tech, Law & Security Program at American University’s Washington College of Law, other panelists were quick to blame free speech and tech platforms for their perceived flaws. These issues included bias in algorithms to overt racism on television.
For Broadband Breakfast’s article about an earlier panel session, see “American University President and New America CEO Seek to Clip Edges of America’s Free Speech ‘Absolutism’.”
At least these panelists agreed that the government should not further regulate free speech.
The solution is less about new laws than about using the laws that exist already, said Suzanne Nossel, CEO of PEN America.
For example, Belgium has passed some of the world’s strictest regulations on free speech, but that hasn’t stopped Belgium’s citizens from throwing the country’s annual Carnival Parade in Aalst with stereotypical depictions of Jews and generally being a receptacle for anti-Semitism, Nossel said.
Cecilia Muñoz, vice president at New America, called technology a “double-edged sword.”
Muñoz highlighted the example of discriminatory algorithms. The engineers who design these algorithms “don’t know what they don’t know,” and that means that discrimination seeps its way into the code.
Muñoz suggested that more women and people of color should design these technologies in order to counteract bias.
Muñoz agreed that the issue of free speech is too great, and probably too global, to be regulated by the government. She advocated a system of assigning social costs to people who offend others with hateful speech.
For example, while she wouldn’t want a law requiring the removal of Roseanne Barr for racist comments, “the next thing” she would do is “call your network” to get you fired.
In regards to improving the quality of communication in the U.S., Nossel said that listeners should always “take into account intent and context,” but speakers should also “be conscientious of their language.”
In an age of Chinese expansion and censorship, there is a “pivotal role” for the U.S. to be the “standard bearer of free speech,” concluded Nossel.
Noted Classical Liberal Legal Scholar Countenances Regulation of Social Media
Georgetown University professor Randy Barnett said that the ability to post on social media might be a civil right.
WASHINGTON, October 21, 2022 – Classical liberal political theory should acknowledge the need for government to regulate certain privately owned businesses that operate in the public sphere, said Randy Barnett, a legal scholar and constitutional law professor at Georgetown University.
Barnet’s argument, made at a Federalist Society web panel discussing on the regulation of social media platforms Thursday, is significant in that even a well-known libertarian scholar is putting forth a plausible case to regulate speech on such technology platforms.
Between fully public and fully private entities, there is a middle category of privately-owned entities that operate in the public sphere, such as public accommodations and common carriers, Barnett said.
The Civil Rights Act of 1875, for instance, regulated “privately owned, public institutions such as railroads, inns, and even places of public amusement such as opera halls,” he explained. Barnett suggested that regulation of public accommodations can protect an individual’s “civil rights.”
“Civil rights are the rights that one gets when one leaves the state of nature and enters into civil society, and these are the rights that are basically the government protections of our preexisting natural rights, but they’re also more than, they are privileges you have as citizens,” Barnett argued. “You also have a civil right to be able to travel throughout the country and to enter into places of public accommodation as an equal to your fellow citizens,” he added.
Barnett said he wasn’t sure if social-media platforms should be considered public accommodations, however. “Are Facebook and Twitter in or are they out” of the public-accommodations category, he mused. “That’s the thing about which I think reasonable people can still disagree,” he said.
Whether social media companies have First Amendment right to moderate content on their platforms had been seen as a well-established view about free speech in the United States. With increasing criticism of the tech sector from the Trump-infused element of the political right, the issue has now become a more open question.
In 2021, to combat alleged discrimination against speech by conservatives, Texas and Florida have each passed laws barring platforms from engaging in various kinds of viewpoint-based content-moderation.
The 11th U.S. Circuit Court of Appeals largely struck down Florida’s law in May, but the Fifth Circuit upheld the Texas statute in September. The Fifth Circuit has stayed the decision pending a likely Supreme Court review.
Panel Hears Opposing Views on Content Moderation Debate
Some agreed there is egregious information that should be downranked on search platforms.
WASHINGTON, September 14, 2022 – Panelists wrangled over how technology platforms should handle content moderation at an event hosted by the Lincoln Network Friday, with one arguing that search engines should neutralize misinformation that cause direct, “tangible” harms and another advocating an online content moderation standard that doesn’t discriminate on viewpoints.
Debate about what to do with certain content on technology platforms has picked up steam since former President Donald Trump was removed last year from platforms including Facebook and Twitter for allegedly inciting the January 6, 2021, storming of the Capitol.
Search engines generally moderate content algorithmically, prioritizing certain results over others. Most engines, like Google, prioritize results from institutions generally considered to be credible, such as universities and government agencies.
That can be a good thing, said Renee DiResta, research manager at Stanford Internet Observatory. If search engines allow scams or medical misinformation to headline search results, she argued, “tangible” material or physical harms will result.
The internet pioneered communications from “one-to-many” broadcast media – e.g., television and radio – to a “many-to-many” model, said DiResta. She argued that “many-to-many” interactions create social frictions and make possible the formation of social media mobs.
At the beginning of the year, Georgia Republic representative Marjorie Taylor Greene was permanently removed from Twitter for allegedly spreading Covid-19 misinformation, the same reason Kentucky Senator Rand Paul was removed from Alphabet Inc.’s YouTube.
Lincoln Network senior fellow Antonio Martinez endorsed a more permissive content moderation strategy that – excluding content that incites imminent, lawless action – is tolerant of heterodox speech. “To think that we can epistemologically or even technically go in and establish capital-T Truth at scale is impossible,” he said.
Trump has said to be committed to a platform of open speech with the creation of his social media website Truth Social. Other platforms, such as social media site Parler and video-sharing website Rumble, have purported to allow more speech than the incumbents. SpaceX CEO Elon Musk previously committed to buying Twitter because of its policies prohibiting certain speech, though he now wants out of that commitment.
Alex Feerst, CEO of digital content curator Murmuration Labs, said that free-speech aphorisms – such as, “The cure for bad speech is more speech” – may no longer hold true given the volume of speech enabled by the internet.
Experts Reflect on Supreme Court Decision to Block Texas Social Media Bill
Observers on a Broadband Breakfast panel offered differing perspectives on the high court’s decision.
WASHINGTON, June 2, 2022 – Experts hosted by Broadband Breakfast Wednesday were split on what to make of the Supreme Court’s 5-4 decision to reverse a lower court order lifting a ban on a Texas social media law that would have made it illegal for certain large platforms to crack down on speech they deem reprehensible.
The decision keeps the law from taking affect until a full determination is made by a lower court.
During a Broadband Live Online event on Wednesday, Ari Cohn, free speech counsel for tech lobbyist TechFreedom, argued that the bill “undermines the First Amendment to protect the values of free speech.
“We have seen time and again over the course of history that when you give the government power to start encroaching on editorial decisions [it will] never go away, it will only grow stronger,” he cautioned. “It will inevitably be abused by whoever is in power.”
Nora Benavidez, senior counsel and director of digital justice and civil rights for advocate Free Press, agreed with Cohn. “This is a state effort to control what private entities do,” she said Wednesday. “That is unconstitutional.
“When government attempts to invade into private action that is deeply problematic,” Benavidez continued. “We can see hundreds and hundreds of years of examples of where various countries have inserted themselves into private actions – that leads to authoritarianism, that leads to censorship.”
Principal at McCollough Law Firm Scott McCollough said Wednesday that he believed the law should have been allowed to stand.
“I agree the government should not be picking and choosing who gets to speak and who does not,” he said. “The intent behind the Texas statute was to prevent anyone from being censored – regardless of viewpoint, no matter what [the viewpoint] is.”
McCollough argued that this case was about which free speech values supersede the other – “those of the platforms, or those of the people who feel that they are being shut out from what is today the public square.
“In the end it will be a court that acts, and the court is also the state,” McCollough added. “So, in that respect, the state would still be weighing in on who wins and who loses – who gets to speak and who does not.”
Chief policy officer of social media platform Parler Amy Peikoff said Wednesday that her primary concern was “viewpoint discrimination in favor of the ruling elite.”
Peikoff was particularly concerned about coordination between state agencies and social media platforms to “squelch certain viewpoints.”
Peikoff clarified that she did not believe that the Texas law was the best vehicle to address these concerns, however, stating instead that lawsuits – preferably private ones – be used to remove the “censorious cancer,” rather than entangling a government entity in the matter.
“This cancer grows out of a partnership between government and social media to squelch discussion about certain viewpoints and perspectives.”
Wednesday, June 1, 2022, 12 Noon ET – BREAKING NEWS EVENT! – The Supreme Court, Social Media and the Culture Wars
The Supreme Court on Tuesday blocked a Texas law that would ban large social media companies from removing posts based on the views they express. Join us for this breaking news event of Broadband Breakfast Live Online in which we discuss the Supreme Court, social media and the culture wars.
- Scott McCollough, Attorney, McCollough Law Firm
- Amy Peikoff, Chief Policy Officer, Parler
- Ari Cohn, Free Speech Counsel, TechFreedom
- Nora Benavidez, Senior Counsel and Director of Digital Justice and Civil Rights at Free Press
- Drew Clark (presenter and host), Editor and Publisher, Broadband Breakfast
- Supreme Court decision on HB 20, May 31, 2022
- Narrow Majority of Supreme Court Blocks Texas Law Regulating Social Media Platforms, Broadband Breakfast, May 31, 2022
- Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight, Broadband Breakfast, May 25, 2021
- Parler Policy Exec Hopes ‘Sustainable’ Free Speech Change on Twitter if Musk Buys Platform, Broadband Breakfast, May 16, 2022
- Experts Warn Against Total Repeal of Section 230, Broadband Breakfast, November 22, 2021
- Broadband Breakfast Hosts Section 230 Debate, Broadband Breakfast, June 1, 2021
W. Scott McCollough has practiced communications and Internet law for 38 years, with a specialization in regulatory issues confronting the industry. Clients include competitive communications companies, Internet service and application providers, public interest organizations and consumers.
Amy Peikoff is the Chief Policy Officer of Parler. After completing her Ph.D., she taught at universities (University of Texas, Austin, University of North Carolina, Chapel Hill, United States Air Force Academy) and law schools (Chapman, Southwestern), publishing frequently cited academic articles on privacy law, as well as op-eds in leading newspapers across the country on a range of issues. Just prior to joining Parler, she founded and was President of the Center for the Legalization of Privacy, which submitted an amicus brief in United States v. Facebook in 2019.
Ari Cohn is Free Speech Counsel at TechFreedom. A nationally recognized expert in First Amendment law, he was previously the Director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education (FIRE), and has worked in private practice at Mayer Brown LLP and as a solo practitioner, and was an attorney with the U.S. Department of Education’s Office for Civil Rights. Ari graduated cum laude from Cornell Law School, and earned his Bachelor of Arts degree from the University of Illinois at Urbana-Champaign.
Nora Benavidez manages Free Press’s efforts around platform and media accountability to defend against digital threats to democracy. She previously served as the director of PEN America’s U.S. Free Expression Programs, where she guided the organization’s national advocacy agenda on First Amendment and free-expression issues, including press freedom, disinformation defense and protest rights. Nora launched and led PEN America’s media-literacy and disinformation-defense program. She also led the organization’s groundbreaking First Amendment lawsuit, PEN America v. Donald Trump, to hold the former president accountable for his retaliation against and censorship of journalists he disliked.
Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.
As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.
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