Are There Limits to Online Free Speech?: Part II

By Alice E. Marwick

This post is part II of the series. Please click here to read part I.

Free Speech and a Free Internet

In 1997, the Supreme Court ruled in the landmark Reno v. ACLU case that internet speech deserved the same free speech protections as spoken or written speech. Justice John Paul Stevens wrote in the majority opinion that the internet’s capacity to allow individuals to reach (potentially) mass audiences, made it, perhaps, even more valuable than its broadcast equivalent:

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.

The implication is that it was even more important to protect free speech online than offline because of the internet’s wide accessibility. While few people could publish in the New York Times or air their views on 60 Minutes, almost anyone could post their ideas online and make them immediately accessible to millions. Stevens, and many technologists, imagined that the internet would be a powerful check on entrenched interests, especially given the deregulation and consolidation of corporate media begun by Reagan and solidified by Clinton.

Such ideals meshed perfectly with the hacker ethic. Rather than corporations or governments having proprietary access to ideas and information, the internet would break down such barriers. These are the ideals behind Wikipedia — “a free encyclopedia that anyone can edit,” and Wikileaks — “we open governments.” Protecting internet speech became a primary value of technology communities. Organizations like the ACLU and the EFF dedicated themselves to fighting any encroachment on internet free speech, from over-zealous copyright claims to the jailing of political bloggers.

This was furthered by CDA 230: the so-called “safe harbor” provision of the Digital Millennium Copyright Act. CDA 230 holds that “online intermediaries” — originally ISPs, but now including social media platforms — aren’t responsible for the content that their users produce. If I write something libelous about you on Facebook, you can’t sue Facebook for it. If someone writes a horrible comment on a blog I write, that’s not my problem. Basically, CDA 230 enabled user-contributed content (aka social media) to exist. YouTube doesn’t have to review a zillion hours of content before it’s posted; it doesn’t have to censor unpleasant opinions. As a result, CDA 230 is beloved by the tech community and free-speech advocates. The EFF calls it “one of the most valuable tools for protecting freedom of expression and innovation on the Internet.”

Now, free speech and progressive ideas have always co-existed uneasily. The ACLU has been attacked from both the left and the right for defending the American Nazi party’s right to march in Skokie, Illinois. In Margaret Atwood’s The Handmaid’s Tale, it’s an unholy alliance between anti-pornography feminists and anti-pornography fundamentalist Christians that leads to the creation of an explicitly patriarchal state. But today, for both liberals and libertarians, the solution to bad speech is more speech. Rather than banning, for instance, racist speech, most First Amendment advocates believe that we should expose its inaccuracy and inconsistencies and combat it through education. (Lawyers call this “the counterspeech doctrine.”)

For the most part, this makes sense. Usually, when the government does attempt to regulate internet speech, we end up with poorly conceived legislation. The EFF found that across the Middle East, laws that attempt to shut down terrorist recruiting usually end up being strategically applied to commentary and expression that doesn’t favor the government. And in the US, the Digital Millennium Copyright Act prevents virtually all internet users from using copyrighted content of any kind. A young activist could post an intricate, creative, political video on YouTube — typically the type of speech that’s highly protected — and it would automatically be taken down if it used a copyrighted song. Few of us want people who refer to the internet as a “series of tubes” or “the cyber” making decisions about how the rest of us should use it.

If Not the Government, Then Who?

The problem is that many tech entrepreneurs are still guided by utopian views of the early internet and create products that presume that people are good actors, ignoring considerable evidence to the contrary. The strong antipathy to government regulation and the legal precedent set up by CDA 230 mean that tech companies rely on self-regulation, and when this fails, they are often left scrambling.

Let’s take Reddit. Originally a community for geeks to upvote geeky things, Reddit’s current reputation has been tarnished by communities devoted to the alt-right, men’s rights advocacy, and illicit photos of underage girls wearing yoga pants. In 2014, Reddit was heavily criticized for hosting the Fappening, a subreddit devoted to organizing and discussing stolen nude photos of female celebrities. Then-CEO Yishan Wong wrote a blog post called “Every Man is Responsible for His Own Soul” where he defended Reddit’s choice to continue hosting the subreddit. Wong claimed that Reddit would not use technical means, like banning users or deleting subreddits, to shut down unpleasant content. Instead, they planned to highlight good actors on the site, like Reddit’s popular Secret Santa. (Confusingly, later that day Reddit deleted the subreddit anyway. Pressure and DMCA requests from deep-pocketed celebrity lawyers were apparently enough to outweigh such lofty ideals.) He wrote:

The reason is because we consider ourselves not just a company running a website where one can post links and discuss them, but the government of a new type of community. The role and responsibility of a government differs from that of a private corporation, in that it exercises restraint in the usage of its powers.

Well, that’s all well and good, but Reddit is not a government. It is a corporation. In the US, the right to free speech applies only when the government attempts to limit what people say, not when private citizens critique media or when websites limit what words people can use in comments. For instance, if Congress passed a bill banning negative comments on Reddit about the President, that would be a legitimate threat to free speech and would be unconstitutional.

But if Twitter decides to ban neo-Nazis or terrorist propaganda, that’s perfectly within their right. Sites like Facebook and Instagram aggressively moderate content, which cuts down on the types of organized brigading that happens on Twitter and Reddit. But of course, free speech isn’t just about what’s legal, but about upholding values that are expressed in many places in society.

Companies like Twitter and Reddit that have stayed true to hacker ideals of information as free, and of the internet as a haven of free speech, continue to struggle with this balance. ISIS has been extremely effective at using digital media to spread propaganda. The same tools that let people collaborate on awesome projects like Wikipedia also let them collaborate on crazy theories like Pizzagate. Given Reddit’s upvote/downvote infrastructure, it’s hardly surprising that a community devoted to naked pictures of hot famous chicks became the fastest-growing subreddit of all time, regardless of how those pictures were obtained. And Twitter’s feature set is fantastic for people to organize and mobilize quickly, even when those people are virulent anti-Semites.

The internet was explicitly founded on idealism. Even though most people are good actors, there are several very vocal minorities who want to use the internet for various Bad Things. Now, this wouldn’t really matter if it was just a matter of counterspeech. If we could end sexism just by pointing out its flaws, then we’d all be in debt to Gender Studies majors. But the type of organized brigading that contemporary social media affords has the intended consequence of deterring other people’s speech — specifically, the speech of women, especially queer women and women of color. And it gives rise to organized movements that want to diminish community trust and belief in institutions. This has very real and very negative consequences.

What do we do when tools founded on openness and freedom are used by straight-up bad actors? And what do platforms committed to those ideals do when their technologies are used to harass and suppress others?

Who Brought the Alt-Right Into This?

When technologists defend free speech above all other values, they play directly into the hands of white nationalists.

The rise of the alt-right, a fusion of white nationalists, Russian trolls, meme enthusiasts, men’s rights activists, #gamergaters, libertarians, conspiracy theorists, bored teenagers and hardcore right-wing activists has been well-documented by others. Suffice to say that the alt-right has been extraordinarily effective at using digital technologies, from Reddit to 8chan to Twitter to Google Docs, to collaborate, mobilize, and organize. They’ve also been very effective at co-opting the language of left-wing activism to paint themselves as victims. And they’ve done this through claiming the value of free speech.

To Milo Yiannopolous and his army of Breitbart commentators, safe spaces, inclusive language, and “political correctness” are not attempts to right wrongs, but incursions on free speech. Sexism and racism are lies that feminists, “social justice warriors,” and others have come up with in order to suppress the truth (or insert your favorite conspiracy theory here). If feminist criticism of sexist imagery in video games functions as censorship, then people who enjoy such games can position themselves as the victims of Big Brother. Not only that, but it allows them to portray feminists as weaklings who can’t handle the harsh realities of everyday life, and need to be coddled and handled carefully — which diminishes very real concerns.

They’ve already been extremely successful at positioning college campuses as the worst violators of free speech. Both Yiannopolis and Richard Spencer have garnered great publicity by booking invited talks at college campuses and then delighting in the uproar that typically follows. Campus anti-hate-speech policies have long been targets of the right; add to that anti-bullying and anti-harassment campaigns and you have an environment where Nina Burleigh writes in Newsweek, hardly a bastion of right-wing thought, that “American college campuses are starting to resemble George Orwell’s Oceania with its Thought Police, or East Germany under the Stasi.” (As someone who works in higher ed, this could not be further from the truth.) The idea that college campuses regularly censor and violate the free speech rights of people who aren’t politically correct has become a mainstay of think pieces and Twitter, to my dismay. It’s also given rise to the Professor Watchlist, a directory of “college professors who discriminate against conservative students and advance leftist propaganda in the classroom.” (Leftist propaganda, in this case, indicates any anti-capitalist tendencies or acknowledgement of white privilege.)

So when tech companies like Reddit and Twitter, who have always been strong supporters of internet free speech, begin carefully moderating content, the alt-right sees it as full-scale censorship. Ironically, they co-opt the language of the left to portray their critics as aggressive SJWs, and themselves as powerless victims. Content moderation by private technology companies is not a First Amendment violation; in most cases, it’s just a matter of enforcing pre-existing Terms of Service. But this victim/bully dichotomy allows them to garner sympathy from many who truly believe that the internet should be a stronghold of free speech.

We need to move beyond this simplistic binary of free speech / censorship online. That is just as true for libertarian-leaning technologists as it is neo-Nazi provocateurs. Sometimes the best way to ensure diverse voices is to make it safe for people to speak up who’d otherwise feel afraid. In his studies of Wikipedia, Northeastern Communication professor Joseph Reagle found that the classic liberal values of the internet — openness, transparency, and freedom — prioritize the voices of combative or openly biased community members over the comfort of female members, leading to male domination even in high-minded online communities. Aggressive online speech, whether practiced in the profanity and pornography-laced environment of 4Chan or the loftier venues of newspaper comments sections, positions sexism, racism, and anti-Semitism (and so forth) as issues of freedom of expression rather than structural oppression.

Perhaps we might want to look at countries like Canada and the United Kingdom, which take a different approach to free speech than does the United States. These countries recognize that unlimited free speech can lead to aggression and other tactics which end up silencing the speech of minorities — in other words, the tyranny of the majority. Creating online communities where all groups can speak may mean scaling back on some of the idealism of the early internet in favor of pragmatism. But recognizing this complexity is an absolutely necessary first step.

Thanks to harryh for editing and Lindsay Blackwell & Whitney Phillips for inspiring some of the thoughts behind this piece.


Alice E. Marwick is former Director of the McGannon Communication Research Center and Assistant Professor of Communication and Media Studies at Fordham University. She is a 2016–2017 fellow at Data & Society. The article was originally published on points.datasociety.net. Part II republished here with permission. Part I was published last week.