By Mark Jamison

On March 29, AEI hosted a web event on free speech in the digital age. For the discussion, I was joined by attorney David Freiheit, University of Chicago Stevanovich Institute Senior Research Associate Pamela B. Paresky, and New York Law School Professor Nadine Strossen for a conversation on the value of free speech to online platforms and American society.

Below is an edited and abridged transcript of key highlights from our discussion. You can listen to the full event on AEI.org and read the full transcript here.

Mark Jamison: Nadine,
what is your assessment of the status of free speech in our digital age?

Nadine Strossen: Basically, the Supreme Court has consistently
enforced the notion that government may never suppress speech simply because
its viewpoint, idea, message, or content is either deeply despised or vaguely
feared to be dangerous. In a nutshell, the Supreme Court has said, “Government
may restrict speech only if it can satisfy the very heavy burden of showing
that the restriction is absolutely necessary to prevent some specific,
imminent, serious danger such as intentionally inciting violence that’s likely
to happen imminently” — an example that’s been touched upon a lot lately.

However, protecting us against government suppression of
speech is not enough to secure meaningful
free speech when so many powerful private-sector individuals and institutions
are exercising speech-suppressive power that, as a practical matter, is beyond
constitutional constraints.

Moreover, many of these powerful private-sector actors,
including social media platforms — far from having any duties under the First
Amendment to non-discriminatorily allow access to controversial speech as
government must do — have their own First Amendment rights which permit them to
pick and choose in whatever fashion they want. It can be arbitrary; it can even
be flagrantly discriminatory. And I do believe that they should have these free
speech rights with a potential caveat that we may get to later on. So, the
question is: What can we do to secure meaningful free speech?

Many of us like to use the term “free speech culture” in
addition to free speech law. And that includes a culture that would persuade
powerful companies, but also individuals and groups of individuals such as
social media mobs who are also exercising their free speech rights when they
call for deplatforming other speakers. But the net effect on our free speech
culture and the opportunity to express ideas — even when they are controversial
or unpopular — is very much under siege.

What are the
implications of free speech or restricted speech on how societies and
individuals develop?

Pamela B. Paresky: I think what we’re seeing now is a shift
from a general understanding that we had, culturally, that free speech was a
way for the disempowered to have a voice, to a sort of misunderstanding that
it’s the people in power who are benefiting from freedom of speech.

Secondly, all of the efforts for social media platforms to
reduce disinformation and misinformation by censoring has potentially had the
opposite effect. For one thing, people have moved off of the mainstream
platforms onto the less-visible or even “dark” web. At the Network Contagion
Research Institute where I do some research, we found, for example, that QAnon
and other conspiracy theories have moved into the dark web, and that makes them
harder to detect.

There’s an idea of “friction” that Tobias Rose-Stockwell and Renee DiResta spoke about in an article in Wired, which I think is a very smart way of thinking about this issue: that there’s a tension between speed/accuracy and false news on social media that makes its way faster and more widely through our system than accurate news does.

David, you come at
this differently for two reasons. First, you are from Canada. But also, your
business is speech, and a lack of freedom of speech really messes with commerce
in some instances.

David Freiheit: Until recently, I never really fully
appreciated the fundamental difference between freedom of speech in the United
States and Canada. You know, hate speech is not a concept that’s tolerated in
the United States. As far as restrictions on freedom of speech go, you have the
criteria of a “true threat” being the one reasonable limit, whereas in Canada,
we have hate speech laws. We have human rights tribunals giving fines to
stand-up comedians for making jokes about a handicapped celebrity kid (true
case).

On the issue of the social media giants effectively acting
as agents to the government to hinder some people’s speech, we’re seeing it
now. And so then the question is: To the extent that they’re acting as agents
to the government, should they not be held to the same standard?

People are not stupid, and the internet has democratized
information to some extent. (It has democratized misinformation to some extent
as well.) But when people start discovering the corrupt nature of platforms’ relationship
with government, or the economically corrupt nature of what social media is
purporting to be good-faith fact-checking and censorship, it really causes a
massive distrust. It causes people to lend more legitimacy and credibility to
what would otherwise be things that people might write off as conspiracy and do
their own research and find out more on.

Nadine, you argued in
your book that the way to battle hate speech is with free speech. Tell us about
this.

Nadine Strossen: I want to add to Pamela’s great explanation
of some of the many virtues of free speech: that in our democratic republic,
freedom of expression is more than a matter of individual liberty and
self-government. Freedom of speech is essential to self-government.

But freedom of speech also means the rights of willing
audience members to hear ideas and information. How can Trump’s critics
effectively respond to him if they can’t hear what he’s saying? And
incidentally, a number of political analysts believe it was precisely his
controversial tweets and other social media posts leading up to the election that
helped tilt the election against him.

If you were the head
of a social media platform, what would you do regarding freedom of speech and
content moderation?

David Freiheit: I would say that to the greatest extent
possible, you have the least restrictions possible. But I think, actually, the
bigger issue is not the restrictions that are in place; it’s just the selective
application of those restrictions. I think if you had clear policy in place
that was applied equally and without political discrimination, there would be
very little problem. People would accept it as the rules of the game.

Nadine Strossen: I can’t put myself in their seat, but I
think about the legitimate business concern of providing what the users want.
You don’t do that through some top-down, one-system-fits-all, centralized
gatekeeping. Instead, you would facilitate what the techies call
“interoperability” and “delegability.” You would open up your platforms with
sufficient privacy protections — I’m assured this can be done — to others to
install various filtering options, and you as a user can delegate it. You could
say, for example, “I don’t want to see graphic violence” or “I don’t want to
see nudity except in art” or “I don’t want to hear anti-Semitic speak.” Or you
could say, “I want to hear everything.”

Let’s get back to
this issue of trust that Pamela and David raised earlier. It seems that on the
one hand, the social media companies have to worry about trust in their
platforms, but there’s also the issue of us trusting each other and trusting
our politicians as well. How do these different aspects of trust play out?

Pamela B. Paresky: We each have a responsibility as members
of society to be trustworthy in addition to having our institutions be
trustworthy. We need to be trustworthy partners in our society, so we should do
a better job individually of checking things out before we spread that
misinformation unknowingly ourselves.

And Twitter has done something to try to help us do that,
which is: Now, if you want to forward a tweet that has an article in it, it
will ask you, “Do you want to read the article first?” So that’s, I think, a
useful thing.

Here’s a question
from the audience: “Sen. Elizabeth Warren tweeted at Amazon last week that she
wanted to ‘fight to break up Big Tech so you’re not powerful enough to heckle
senators with snotty tweets.’ Many of her followers cheered while free speech
fans cringed. This is a step back for free speech culture, but does it also
suggest that there are legal defenses against antitrust actions based on free
speech principles?”

David Freiheit: The hypocrisy in this tweet is mind-blowing.
This is Elizabeth Warren — a senator who posted one of the defamatory tweets
about Nicholas Sandmann — who is, as a senator, hiding behind sovereign
immunity to shield herself from liability for that defamation, now saying that
the senators should have protection from snotty tweets from the general public
to criticize them. This is exactly how censorship gets weaponized to empower
the political class to the detriment of the lowly hoi polloi who lose their
ability to criticize while the senators literally have the liberty to defame.

And her case is going to the Supreme Court, being
represented by Robert Barnes who’s challenging this. But Elizabeth Warren
literally invoked sovereign immunity to defend against her defamatory tweet
against Nicholas Sandmann, which she refuses to delete from the internet, and
it’s still there — all the while saying that senators need protection from
snotty tweets? That’s what freedom of speech is about, and that’s what
censorship would be about. That is putting the carriage in front of the horse —
both literally and ideologically.

Nadine Strossen: That’s such a great point, David, and James Madison made the same point a couple of centuries ago when he said, “In the United States,” and let’s say in Canada, too, “The censorial power is in the people over the government, not in the government over the people.”

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