Journal of Free Speech Law: "Empowering Speech by Moderating It," by Danielle Keats Citron & Jonathan Penney

A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.

The article is here; the Introduction:

A myth of epic proportion has gained traction: that any effort to moderate online speech is a zero-sum game, with free expression as the loser. When social media companies remove destructive posts that violate terms of service, people cry, "Censorship!" Alex Jones, founder of the far-right conspiracy news site Infowars, accused YouTube of "killing the First Amendment" after the company blocked videos that revealed maps of the homes of Sandy Hook families. This isn't just an extremist view: the Pew Research Center has found that a majority of people believe that companies are engaged in "political censorship" when they moderate content. Some legislators have made this view a cornerstone of their political philosophy. At a House Oversight and Accountability Committee hearing in February 2023, Representative Lauren Boebert denounced Twitter as a "speech overlord." To the company's former head of Trust and Safety, Yoel Roth, she angrily admonished, "How dare you" shadow-ban my posts (even though no evidence supported the claim and former Twitter executives denied it). Representative Marjorie Taylor Greene stated that Big Tech was silencing Americans. The censorship narrative has gained traction in state legislatures as well. Underlying this view is the assumption that content moderation has no upside for free expression.

The outcry is similarly strident at the suggestion that law should curtail online abuse. Online assaults that include doxing, intimate privacy violations, and threats are dismissed as weak attempts to "blow off steam." Any effort to address them is viewed as a threat to free speech. The ACLU, for instance, has adamantly opposed the passage of laws penalizing the nonconsensual disclosure of intimate images. These laws risk chilling legitimate expression, the ACLU has argued, even though the laws made clear that they would not cover matters of legitimate public interest. Under law's blighting stare, free expression is impossible.

For more than a decade, we have been interrogating these claims. Rather than vanquishing free expression, combating online abuse frees people to speak. In the face of online assaults that amount to cyberstalking or intimate privacy violations, targeted individuals stop expressing themselves. They close their social media accounts, lest perpetrators exploit those accounts to attack them. They withdraw from family and friends. If their loved ones try to "talk back" to abusers, they face terrifying online assaults themselves. Victims and their loved ones are silenced and terrorized. Research makes clear that online abuse exacts significant costs to free expression.

As our research suggests, legal and industry interventions against such abuse make space for more expression rather than less. Such interventions enable victims to speak their truths. Rather than silencing speech that deserves normative protection, law and corporate policies enable victims to trust companies enabling communications so they can reveal themselves and share their truths.

Comments

[CommentMonkey]

This is a very appealing argument. Of course enforcement of decorum standards will have a tendency to improve the tenor of debate. Applied even-handedly with respect to viewpoint, such standards generally elevate the discourse.

It was all going so well until the last paragraph of the excerpt and the phrases “speak their truths” and “share their truths.” Ugh. “My truth” is like my sunset or my law of gravity. The truth is objective. You can have your opinion, your feeling or your belief. You can’t have your truth.

[Stephen Lathrop]

CommentMonkey — Screw decorum standards. Diversify and multiply private publishers by orders of magnitude, and then let them publish using whatever standards they judge good for business. Just make sure the publishers remain liable for civil damages if they or their contributors inflict false defamations.

[Longtobefree]

When social media companies remove destructive posts that violate terms of service, people cry, “Censorship!”

or

When social media companies remove posts that violate terms of service without specifying what term was violated, and how, then people rightly cry, “Censorship!”

[DaveM]

Details matter. Are we talking about speech that “violates the Terms of Service”? In that case, it isn’t censorship when it is removed, it’s enforcement of the terms of the writer’s contract with the service.

Are we talking about speech that credibly threatens immediate harm? Speech that knowingly spreads a lie and intentionally causes someone to suffer financial loss? In that case, it isn’t censorship when these threats and lies are removed, it’s enforcement of the laws against criminal threat, slander and libel.

What do these two scenarios have in common? They are both centered on a prior agreement of what is acceptable. When one joins a service, you agree to follow its terms. When one is a citizen in a country, you agree to abide by its laws. If you fail to live up to your side of the agreement, you will suffer the consequences.

Any speech that doesn’t likewise run up against a prior agreement must be free in an open society. Any attempt by a service or a government to moderate, regulate, tone down, police, redirect, ban, de-emphasize, or hide such speech from view — for whatever reason — is corporate “censorship”.

In the end, it is not the speech itself which is the problem. Speech is just the medium. The problem is when you use speech to cause harm. You can yell anything you want to in that theater if it’s actually on fire. What you can’t do is *falsely* yell a warning that is intended to cause a stampede in which people get hurt.

So: focus on the harm. The actual, real, measurable, objective harm. Do that, and the matter of what constitutes censorship becomes immediately clear.

[questioner7]

A completely unmoderated forum can quickly become useless: see e.g. Washington Post comments under articles. NYT and WSJ comments are way more civilized. The solution is to automatically post all censored comments in an out-of-way place, maybe with some delay, where they are available for analysis. Then an overly censorious policy can be quickly exposed.

[Stephen Lathrop]

questioner7 — So delay publishing the defamations a bit before inflicting the damage?

And likewise with a publisher’s 1A right to free expression. Only attack that after modest delay?

By the way, if you judge a forum over-censorious, what then?

I think you are still starting from a presumption of a contributor’s right to receive publication gratis, from any private publisher the contributor can access. Maybe rethink that.

[TwelveInchPianist]

It’s kind of ironic that, while complaining about people using terms like “censorship” to refer to private moderation, she refers to speech she doesn’t like as “assaults”: “Online assaults that include doxing, intimate privacy violations, and threats”

[Spinach Chin]

Yeah sorry, I just cannot give any benefit of the doubt to the “speech is violence crowd”.

[Stephen Lathrop]

TwelveInchPianist — Just in passing, during the run-up to the American Revolution, in the 1760s, what we now call doxing was widely practiced by Samuel Adams and the Sons of Liberty. They made it their business to identify publicly, for instance, businessmen who refused to cooperate with import boycotts. A good deal of violence resulted. Some businessmen abandoned their businesses. Some fled the colonies.

Whether in today’s context that is an originalist justification for doxing, or a cautionary example, I leave to your judgment.

[Commenter_XY]

I’d rather make an error allowing more speech, rather than restricting it as Citron and Penney advocate. Any way you want to ‘dress up’ the censorship argument; it is censorship.

Who decides what is to be censored? Using what objective criteria?

This argument by Citron and Penney is what John Kerry recently alluded to when he stated 1A was a block to governance.

[Stephen Lathrop]

Who decides what is to be censored? Using what objective criteria?

XY — Shift the emphasis a bit. Use private editing prior to publication, not censorship. Multiply and diversify private publishers by orders of magnitude. Then forget about objective criteria. They will not be needed.

The private publishers will choose what to publish and what to reject according to their own diverse lights. Would-be contributors rejected by one publisher will enjoy freedom to try again among a myriad of others.

Most private publishers will make their editing decisions based on their estimation of what is good for business. Some will do so to promote various competing ideologies. The wisest of them will probably mix those motives, because ideological advocacy can be good for business. In general, in the internet publishing business, publishing more is better for business than publishing less.

Use government policy for two reasons only. First to assure that everyone who wants to retains a meaningful right to become a publisher. Second, to protect with trials for civil damages any innocent third parties who suffer provable losses consequent to false defamations.

That describes in 4 short paragraphs the best public policy available to fix the present ills of internet publishing, assure maximal expressive freedom for everyone, rule out government censorship, and improve the public life the nation. Pretty simple.

[David Nieporent]

XY — Shift the emphasis a bit. Use private editing prior to publication, not censorship. Multiply and diversify private publishers by orders of magnitude. Then forget about objective criteria. They will not be needed.

Do you ever get tired of being so ridiculous about this? “The solution to censorship is to not publish the stuff that people want to censor” makes Dr. Ed look like a Nobel Prizewinner.

[Stephen Lathrop]

Nieporent — See if you can figure out how to write a forthright paraphrase. The one you just created, and then defeated above, has nothing to do with my advocacy.

You might start by noting in good faith the differences in effect between an instance of government censorship applied everywhere, as compared to an instance of private editing applied to one publication among thousands. You could then go on to consider the difference between a policy of censorship applied to all publications, with a policy to leave editors of competing publications at liberty to accept or reject a would-be publication on the basis of opposing motivations, with actually opposing effects.

Private editing is not even a little bit like government censorship. Because I consider you ideologically addled but not stupid, I presume you know all that already. For explanation, I surmise you comment in bad faith to avoid cognitive discomfort that would attend confession of a flaw in your ideology.