Journal of Free Speech Law: "Public Calls for Censorship as Bad Speech," by Prof. J.P. Messina (Purdue, Philosophy)

Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; the abstract (the article, 2 J. Free Speech L. 87 (2022), is here):

Responsible speakers avoid trafficking in bad speech, that is, speech that they have reason to believe causes or constitutes net harm. Moreover, third parties have prima facie reason to suppress such speech. As recent events have made salient just how harmful speech can be, there has been a corresponding increase in calls to suppress or censor such speech. This article argues that there are three mechanisms by which calls to suppress bad speech themselves tend to cause or constitute harm. Paradoxically, then, those most concerned about the pernicious effects of bad speech ought to be especially reluctant to call for its suppression.

Comments

[Noscitur a sociis]

This link appears to go to Thomas Hochmann, "Why Freedom of Expression Is Better Protected in Europe Than in the United States".

[Eugene Volokh]

Sorry, fixed.

[Stephen Lathrop]

Remember? It was only a few years ago that I started to insist on the VC that Section 230 would deliver burgeoning demands for government censorship. Everyone laughed.

Most commenters here still do not acknowledge that Section 230 is behind today's censorship demands. A lot of folks don't even realize when they make censorship demands.

They can't see it because how publishing functions as a business remains an utter mystery to them. Their frame for considering internet publishing is restricted to what they can see across a keyboard, and how their preferred prejudices fare on the biggest platforms. They think Section 230 is just the tool to optimize that experience—if only they can get the government to promulgate tendentious publishing rules, and enforce them just right.

Section 230 removed the principal barrier to internet giantism. The rest of the trouble flows from that.

[Michael P]

Having a bunch of small publishers who are each liable for users' posts is a really good way to give governments more control over what gets censored, directly through criminal and regulatory actions or indirectly through other civil actions. Small companies don't have the resources to lobby or fight for different policies.

[Stephen Lathrop]

Michael P — I concede one point. When the kind of publishing practice I advocate was customary for all publishers, government laws against libel did suppress libel considerably. It also created occasion, because everything got read before publication, for private publishers to promulgate content-based policies, and make adherence to them an integral part of the publisher's press freedom. But I do not think that practice much invited the government involvement in content you seem to suppose.

[David Nieporent]

did suppress libel considerably

Maybe, but it also suppressed things that weren't libel considerably, and there's a lot more in the second category than the first.

[David Nieporent]

None of this is right, but you continue to activate your anti-230 lunacy screed macro whenever you see the trigger words, okay?

230 has not delivered burgeoning demands for government censorship, so people were right to laugh at you. You are the only one calling for censorship, even though you're still not smart enough to realize it because you can't grasp that defamation suits are pro-censorship.

[Stephen Lathrop]

Nieporent, I now judge your commentary harder to follow than I previously supposed. Several times I have seen you tell other commenters that moderation of websites by their publishers is indispensable to keep the internet going. That seems to contradict what you repeatedly tell me, while calling me stupid.

Can you explain how a demand that government turn web platforms into common carriers is not a demand for government censorship, by forced speech? Can you explain how advocacy is not a government censorship demand, that specific viewpoints be guaranteed terms of service to access every platform? Can you explain how demands that so-called hate speech be banned by law are not advocacy for government censorship?

More generally, can you explain how liberty for private publishers to decide at pleasure what content they will publish, and what content they will reject, is as damaging as viewpoint-based government censorship? The latter forecloses specific content nation-wide, the former forecloses only access to a specific publisher, while allowing other publishers to compete to publish that same content. How is that censorship at all, let alone government censorship?

Private editing—done prior to publication—is an indispensable bulwark of press freedom. It is also the only efficient way known to suppress libel. Long-term, unrestricted capacity to publish libel will create habitual public opposition, which will fatally undermine political support for press freedom—which is already a hard political sell at any time. You can see all of that happening now. To deny what is so plainly a stew of roiling current controversies makes no sense.

Compared to prior editing, after-the-fact moderation of libel—by taking it down after damage is done—has a conspicuous disadvantage. Damage done can likely never be recouped by innocent victims. Given that, how do you justify your pro-libel advocacy? Could it be that you suppose libel victims do not suffer real damage, but think instead they are mere complainers, who ought to toughen up? What do you make of the parents of the Sandy Hook school shooting victims, libeled on the internet, and put in fear of their lives as a consequence? Just complainers? They won their lawsuits, and thank God they did. Your advocacy would take that away, not explicitly and right now, but long-term, by making that kind of business-plan libel customary and commonplace.

With capacity to inflict damage at will, and practical ability to escape punishment afterward, why won’t unscrupulous commenters avail themselves of that gratuitous power to lie and damage—out of pure cussed cruelty, feckless personal animus, or a cynical political will to weaken political opponents in the public eye? Or just to make money? Why won’t they seize every advantage to weaken those they compete with, merely dislike, or actively despise? How can political support for expressive freedom withstand that as a customary standard of conduct?

I confess I cannot make sense of your arguments. Between the two of us, I insist that my advocacy is more supportive of practical expressive freedom than yours is.

[David Nieporent]

Can you explain how a demand that government turn web platforms into common carriers is not a demand for government censorship, by forced speech?

Sure: forced speech is the opposite of censorship. Censorship — you can look it up! — refers to the suppression of speech, not compelled distribution of speech. Trying to force websites to be common carriers certainly does violate the websites' free speech rights, but is definitionally not censorship.

More importantly, it's not remotely § 230 that is creating the calls for transmuting websites into common carriers. It's the websites' decisions to moderate speech — something protected by the first amendment — that is leading to those calls.

More generally, can you explain how liberty for private publishers to decide at pleasure what content they will publish, and what content they will reject, is as damaging as viewpoint-based government censorship?

I can't, because that isn't my position. Repealing § 230 does not grant private companies the "liberty" to decide what content they will publish/reject, but rather coerces them into making those decisions. It's the existence of § 230 that protects said liberty.

It is also the only efficient way known to suppress libel.

Once again: suppressing libel — whether constitutionally permissible or not — is the anti-free speech position. You may say, "Well, it's justified, because of the harms of defamation." (Of course, every would-be censor makes that argument; nobody says, "This speech is beneficial but I want to suppress it.") But justified or not, it is an attempt to suppress speech.

Also a bizarre Sandy Hook reference, since Alex Jones — the libelous speaker — was held accountable and § 230 didn't play any role at all.

Long-term, unrestricted capacity to publish libel will create habitual public opposition, which will fatally undermine political support for press freedom—which is already a hard political sell at any time. You can see all of that happening now. To deny what is so plainly a stew of roiling current controversies makes no sense.

No, you cannot remotely see any of that happening now. People are not opposing press freedom because of the "capacity to publish libel." That is a completely bizarre observation that has no relation to the real world. There are two movements to infringe on speech right now.

The stronger one, the one you mention above, is the conservative attempt to force companies to distribute speech that they don't want to, by declaring them to be common carriers. That has nothing to do with libel. That's about companies doing too much moderation, not too little.

The second one is the liberal attempt to suppress "disinformation" and "hate speech." That, again, has nothing to do with libel. Liberals aren't complaining that there's too much defamation on Twitter or Facebook; they're complaining that there's too much information they disagree with about elections, covid, etc., and too much hate speech. And that speech isn't actionable with or without § 230.

[Ben_]

The examples in this are pretty good. We all saw endless unthoughtful, anti-Trump hysteria. Who sees hysteria and decides they want to join the frenzy? (Lots of people, apparently. It's pretty hard for the rest of us to relate to though. And why bother trying?)

[Brett Bellmore]

"Moreover, third parties have prima facie reason to suppress such speech."

It occurs to me that, if speech being harmful constitutes an excuse to suppress it with a clean conscience, anybody who merely wants to suppress speech because they dislike it has a strong motivation to conclude that it is harmful.

Why, then, should we privilege such conclusions, outside situations where the harm alleged is immediate and crystal clear? Like, somebody in a rage, carrying a gun runs up and yells, "Where is that rat, Bob? I'm going to kill that bastard!" I think we'd all agree that "He went that way." could be viewed as "harmful".

The problem is that today there's a push to suppress 'harmful' speech that's just simple political speech disliked by the person proposing to suppress it. Often quite popular political speech, even expressing what might be a public consensus.

Basically, I think the occasions where you can justify suppressing speech are few and far between, and are not remotely what's driving this push for public censorship.

[Ben_]

"Why, then, should we privilege such conclusions…"

Because they’ll name-call you and exile you from the cool kids club otherwise.

If you go along with them then they won’t do that to you. Until next time. And the time after that. So just always, always go along with them, regardless of anything.

[rloquitur]

"Net harm"--ok, hmmm. Let's say I think that the FBI's involvement in suppressing the Hunter laptop means that the 2020 election was not "fair." Note that "free and fair" elections is the standard we hold up to other nations when it comes to elections. One could say that any election that is not "fair" results in an illegitimate government. I guess that's a bad idea, but is it wrong?

The same goes for generalizing comments about the criminal justice system. Is it wrong to point out that Jussie Smullet isn't getting treatment that most defendants would get? Is it wrong to say that the treatment of Bogdan Vechirko reflects thoroughly politicized justice and impugns the Minnesota justice system?