Journal of Free Speech Law: "The Fate of American Democracy Depends on Free Speech," by Suzanne Nossel

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:

In response to our democratic crisis—polarization, contested elections, political violence—philanthropists, activists, and civic leaders have set about trying to find ways to restore democracy and a vibrant civic culture. Foundations have launched ambitious new programs. Individual philanthropists have convened collaboratives—the Democracy Alliance, the Democracy Funders Network, New Pluralists—aimed to pool resources and insights to shore up the polity. A cottage industry of new organizations has grown over the last seven years to work on voting rights, voter access, election laws and systems, civic participation, and more. These valiant efforts have collectively helped tamp down political unrest, fend off demands to reject the 2020 election result, and defend vulnerable democratic systems at the state level across the country. Many of these efforts are geared not just toward fortifying American democracy in its current form, but also to reinventing it to better meet the needs of a country buffeted by technological, demographic, and social change.

One bulwark of a healthy democracy that these efforts have not sufficiently prioritized, however, is free speech. This is doubly surprising. First, because alongside voting rights and systems, good governance, and civic participation, free speech and open discourse have always formed part of the backbone of a healthy democracy. And second, because free speech and open expression are so clearly under threat today. Controversies over free speech—what can and cannot be said, taught, studied, and read—are fueling grievances that are deepening polarization and distrust in our political system. Yet the battle to uphold free speech has not been incorporated into the broader movement for democracy. It must be.

In this essay, I first describe the loss of faith in free speech on the left and the right and the reasons for it. I then detail the relationship between free speech and democracy, and how it has come under pressure from growing pluralism, polarization, and digitization. I follow by outlining how a flagging commitment to free speech in education, in terms of protest and assembly rights and in relation to the role of the free press, are collectively weakening American democracy. I conclude with a series of recommendations that can help shore up the place of free speech as a democratic cornerstone now and for generations to come.

Comments

[The Margrave of Azilia]

It’s probably a good article, but why does she express surprise that the agenda-driven democracy-shriekers don’t actually support free speech?

[JesusHadBlondeHairBlueEyes]

Hoo boy, is this broad gonna get cancelled by the Democracy Protectors.

She'll be lucky to be flipping burgers somewhere.

[Stephen Lathrop]

Nossel's article delivers a sensitive and varied review of discords lately afflicting expressive freedom, plus a blank incomprehension about why those discords have occurred.

Like so many others who comment about expressive freedom—often like Nossel in an apparent state of near-shock and surprise—she overlooks fundamental changes which are simple to describe.

She posits instead a vast array of separately engendered causes, for separately described societal ills, all related somehow to expressive changes in society. Those are apparently so complex, various, and interacting that they require myriad separate analyses, and a vast program of social adjustments with endless ad hoc missions—all somehow to be coordinated and administered across practically every kind of social institution.

A better, simpler approach, requires grasp of only four fundamental insights:

1. There is a distinction between free speech and a free press.

2. Most of today’s disruption and discord about expressive issues is related to the internet's capacity to turn expressions previously rightly understood as speech into what would previously have been understood as publications.

3. A legislative blunder—passage of Section 230—undertaken with good intentions, turned out instead to be a consequential mistake. Because Section 230 undermined the previously customary practice of private editing of contributions prior to publication, it allowed into a former domain of carefully reasoned and managed published expression, a flood-tide of unreasoned, unmanaged, and often deliberately destructive expressions—expressions escaped from the hurly-burly domain of pure speech. Those had always existed, and always been rightly protected. Because they formerly enjoyed little access to the more-socially-influential domain of publication—private editing screened them out—they had only rarely proved too disruptive. Now, in a publishing world newly stripped by Section 230 of capacity to defend against socially destructive expressions, heedless speech achieves capacity to create formerly unprecedented social disruptions, via anonymous, world-wide, cost-free publications, set free for the first time in history from all reasoned constraints.

4. To insist as I have done above that publication is a different kind of expression than pure speech generates among a large segment of the population a poorly-founded but politically potent resentment. To insist that careful precautions must attend publication gets interpreted as anti-democratic suppression of speech. Never mind that the internet itself has enormously democratized publishing opportunity. Would-be free speakers who do not even understand they demand publishing power greater than has ever been possessed by anyone in world history, become outraged that incapacity to give them everything they want so blatantly denies supposed democratic prerogatives. They continue to suppose the subject is merely speech, and thus feel illegitimately silenced.

So to understand the problem is simpler than Nossel supposes. The solution will prove politically difficult, but thankfully, not as difficult as it would be to navigate Nossel’s maze.

[The Margrave of Azilia]

“a former domain of carefully reasoned and managed published expression”

The good old days, when Westbrook Pegler carefully vetted the charges against Quentin Reynolds before broadcasting them.

Though Reynolds won a libel verdict against Pegler, the companies which made the radios over which his libel was broadcast got away Scot-free, not being forced to pay any damages at all for the defamatory content sent over their machines.

And who can forget the party newspapers of the 19th century which carefully vetted any potentially libellous reports about people from other parties?

etc.

[Stephen Lathrop]

Margrave — WTF do radio manufacturers have to do with it? There is no analogy radios-to-ISPs presented by Section 230. Section 230 addresses publishers, not ISPs or, good lord, radio manufacturers.

The analogy presented by Reynolds v. Pegler is publishers-to-publishers. Internet platforms are publishers. Reynolds sued Pegler and the Hearst Corporation, which was Pegler’s publisher. The Hearst Corporation was the party legally liable to vet Pegler's charges.

But thanks at least for reading.

And yes, it took a while for the law of libel to get sorted out during the 19th century. The century began with the death by dueling of Alexander Hamilton, one of the greatest lawyers in American history, killed by Aaron Burr, the Vice President of the United States.

A hundred years later, the nation had learned to handle cases of defamation less notoriously, and less tragically. On the whole, that change was an improvement.

One way you can think of my advocacy, if you want to, is as an argument that the public life of the nation will suffer if it returns once again to dueling to settle cases of defamation, instead of using reliance on the rules of the late-20th-century marketplace of ideas.

I mentioned above that passage of Section 230 was a consequential blunder. I do not want a revival of dueling to be one of the consequences.

[Commenter_XY]

There is a distinction between free speech and a free press.

Ok Boomer, what is the distinction? Can you be concise?

[Stephen Lathrop]

XY — Sure I can be concise. I will just offer enough to prove speech and publishing are different, and leave out a lot more:

1. Speech comes free of charge. Publishing is typically expensive. That means protecting speech can be accomplished with nothing more than a proclamation and legal follow-up. To protect publishing requires not just a proclamation announcing expressive freedom, it also requires practical and legal protection for publishing-related activities which generate the cash to pay the publishers' bills, and keep open the outlets to audiences which contributors rely upon.

2. For reasons related to (1) above, speech freedom can be practiced continuously without regard for what the speaker says. Nor need there be any audience at all. As a practical matter, publishing cannot do that; mounting expenses preclude it. That implies an urgent need to protect publishers' capacity to assemble and curate audiences. Unfortunately, speakers have capacity by careless, ignorant, false, or reprehensible utterances to erode audiences. So speakers/contributors cannot practically be left at liberty to say whatever they choose to a publisher's audience, lest the audience dwindle, liabilities increase, and the publishing outlet fail.

3. There has long been a legal tradition that liability for defamation is shared alike among contributors and publishers. With regard to speech and defamation there has not been any such liability sharing.

4. To have assurance of addressing an audience, successful publishers need do no more than their normal activities. Would-be contributors are typically unable to use expressive freedom to accomplish notable social influence by means of speech; they almost always require the services of a collaborating publisher to do it. Or else they do it by becoming publishers themselves.

This could go on and on. It is a complicated subject.

I get that some of what I already mentioned makes little impression on Joe Keyboard types who insist there is nothing more to expressive freedom than specific content they wish to contribute. Alas, that is multiply mistaken. It is mistaken as a matter of law, as a matter of history, as a matter fact, and as a practical matter.

Nevertheless, Joe Keyboard—even as he remains unaware it is so—is as much at liberty to practice publishing activities as anyone else. He is also Constitutionally protected in doing so. And if he begins impecunious, probably has a better chance to get rich by becoming a publisher than in almost any other field of endeavor.

Barriers to entry in publishing are inherently low—or at least they would be if Section 230 were repealed.

[Riva]

Hey, great. Feel free to express yourself anyway you want, until the Ministry of Truth disagrees with you. But I guess Democrats have to destroy the First Amendment to save it. Just like democracy itself….wait a second, that doesn’t seem quite right.

[Tallman]

I have the exact opposite take re 230. The big problem is there is that the definition of “platforms” was subsequently expanded well-past that term’s original public meaning i.e., the original internet “platforms” just passed through user-generated content without manipulation (e.g., no boosting, shadow-banning, bumping to the home page, and other algorithmic changes). And significantly, those platforms didn’t also claim to have their own, 1st Amendment protected, editorial position.

Re free speech vs, a free press…I’m pretty reluctant to make any such distinction b/c it would necessitate the government defining what sort of speaker got the higher “press” protection. Inevitably, that leads to a licensing regime, which in turn, would punish regime-critical voices.

[Stephen Lathrop]

Tallman — Wrong in both paragraphs. Follow my commentary to find out why with regard to paragraph two. Actually, I have dealt with that so many times already that I am sure you have not been reading my stuff. Or if you think you have been, and want to rebut my arguments, you will have to address them point by point, not just ignore my points while you reiterate a set of unsupported contrary presumptions.

In paragraph one you are mistaken as a matter of law. It was a legal decision that a specific so-called "platform," was civilly liable as a publisher that touched off the pro-Section 230 political movement. But note, not even Section 230 itself says internet platforms are not in fact publishers. It only says they will not be treated as publishers liable for civil damages in certain instances. As a matter of fact, all the major internet platforms which engender controversy today are publishers. Some of them are the largest publishers in the history of the publishing business, world-wide.

[Tallman]

>As a matter of fact, all the major internet platforms which engender controversy today are publishers.

I completely agree.

[Randal]

Without getting into quibbles, you’re basically right that the problem stems from the modern ability for everyone to self-publish any random thought to the whole world at practically no cost.

But you’re totally wrong that the solution is to go backwards. Always forwards, never back.

For one thing, Section 230 is an accelerant, but not the root cause. The Internet is the root cause. Repealing Section 230 wouldn’t take the Internet away. Would you, if that’s what it took to get back to a private editing regime?

That’s like taking the printing press away after just a couple of decades because you can’t tolerate the ramifications. Or radio. Or the telephone.

New media always creates disruptions to society because the structure of society is always highly dependent on communication. But we have to adapt, as we always have before, not abandon the progress we’ve made (which is impossible, really, in any event).

[Stephen Lathrop]

Randal — I called Section 230 a blunder. You call it progress. I offered specific reasons and examples to support my argument. So far, you have reiterated faith in progress.

Note, by the way, that I have not suggested not using the internet. I insist on its use, and have offered ideas for policies to optimize the results.

What is your solution for the undoubted fact that giantistic internet platforms enabled by Section 230 have all but eliminated local news gathering, while also decimating national journalism, without replacing any of the capacities those platforms destroyed. Do you have the face to insist that professional news gathering has become useless because the way we insist on using the internet is killing it? Why not insist instead on a different method to use the internet, one which promotes professional news gathering?

[Randal]

Section 230 isn't progress. The Internet is progress. Section 230 is a red herring.

Why not insist instead on a different method to use the internet...?

That's like insisting on a different method to use the printing press, or a different method to use the telephone. There may be ways to tweak the methodologies around the edges, like do-not-call lists, but you can't fundamentally alter a technology with policy. Even China has figured that out.

Prior to the Internet, there was no possible way for everyone in the world to self-publish globally at near-zero cost. With the Internet, there is. The only way to change that with policy would be to artifically introduce a barrier to entry for Internet publishing, like a license. I just don't think that's in the cards.

All Section 230 does is enable that self-publishing by structuring the industry in a particularly convenient way. But if you take that away, we won't go back to pre-Internet structures, because it'll still be possible for anyone to globally self-publish at near zero cost. A less-convenient structure would simply emerge to facilitate that capability.

That structure could, for example, better highlight the fact that each individual is the publisher of their own commentary. Platforms for easy self-hosting could emerge. Social media companies would become more clearly aggregators and distributors, similar to Google news.

Or, open source distributed paltforms might fill the void, similar to Mastodon. That might happen anyway as people become increasingly a comfortable with the centralized power of big tech.

[Stephen Lathrop]

Randal — Randal, Randal, Randal. Yikes. You wrote this:

Prior to the Internet, there was no possible way for everyone in the world to self-publish globally at near-zero cost. With the Internet, there is.

Do you have any notion what the annual operating costs of the combined giantistic platforms are? Just Facebook, with just its U.S. budget, costs approximately 50 times the annual operating budget of the New York Times. World-wide, it is about twice that.

You think the internet is a cost saver? On the basis of what comparison. Not apples to apples. In fairness, big fixed costs of running newspapers—paper, ink, printing, distribution—went away with the internet. But none of those applied to broadcasting, which has been around a long time.

Ask almost anyone on this blog whether internet platforms could edit everything they publish prior to publication, and they will tell you the cost to do it would drive the platforms out of business. But ink-on-paper publishers still do that, and a few still thrive.

In short, if the same rules applied to internet platforms as still apply to ink-on-paper newspapers, the newspapers would continue in business. The future of the platforms would be in doubt.

Maybe the platforms could keep going too, but in no way would they use the same business models they do now. There would be nothing at all like, “a way for everyone in the world to self-publish globally at near-zero cost.”

Randal, the problem is that like many internet contributors, you imagine you are a customer of the platforms. You are not. The platforms’ customers are their advertisers. Your attention is the product for sale. The advertisers are paying the (gigantic) bills to make it all work. But you think the internet has invented an economic miracle, and bestowed it upon you. That is not what happened.

And you know what? That bit about, “self-publish globally,” is just wrong too. You are not self-publishing. You rely on the biggest institutional publishers the world has ever seen. You are a contributor. They are publishers. If those giant platforms were not there footing the bills, only a minuscule fraction of internet contributors would have capacity to self-publish. Not many internet commenters know much about organizing the communications, or assembling, curating, and monetizing the audiences.

Without all that going on out of your sight, the internet would still be there. You would probably have to pay a metered fee to get service. Which you would be reluctant to do, because what would you get for your money? Not an audience for your commentary. Not delivery to you of anyone else’s commentary. That is something the platforms organized for you, at great expense. Without them, you would have to pay more, and you would get less than they provide.

So a question whether the present mix of internet policies and practicalities is all, “progress,” is not to be dismissed out of hand. An approach to that question might begin by asking whether it seems like everyone is super-happy with the way the internet serves the public now. I don’t think the are.

[Randal]

You’re doing a good job of convincing yourself, clearly, but not of anyone else.

I’m quite aware that advertisers are footing the bill. But that’s not all that new, that’s true of TV and Radio too.

The difference between the Internet and TV / Radio is that where TV / Radio allowed the masses to listen to a small set of publishers for near zero cost, the Internet allows the masses to listen and publish at near zero cost. In both cases advertiser-subsidized, sure. But that cost structure does not depend on social media companies or Section 230.

[Stephen Lathrop]

Randal — Yes, I get that I have not convinced internet utopians. I raise issues utopians know nothing about, and dismiss out of hand, as you do. You do that without in any way rebutting my points. Thus, it will take a long time to convince utopians.

I expect internet utopians to remain impervious to counter-arguments until accumulating disappointments teach them by experience they have been mistaken. There is an old nostrum—some have attributed it to Franklin. It says: “Experience keeps a dear school, but fools will learn in no other.”

You insist that Section 230 has been inconsequential in creating the internet giants. Prior to Section 230, there was an iron-bound constraint on the growth of any advertising-dependent business model. Every increment of ad sales growth required additional user-pleasing content, at additional expense.

The content had to be interesting enough to accomplish audience recruitment. It also had to be available in quantities proportionate to the new advertising; advertising in too great a proportion to content degrades the value of a publication. And it had to be reliable enough to avoid liability for defamation.

Before Section 230, all of that meant that to increase advertising revenue required a proportionate increase in editorial expense, until, at some point, maximal utilization of the local advertising base was achieved, and then the price of the advertising had to be reduced for customers farther out, who got less value from a more-distant customer base.

It was on the basis of those realities that the national periodical publishing industry naturally segmented into local publishers on the one hand, and national publishers on the other. The former used business models such as I just described. The latter, much fewer in number, relied more heavily on institutional-type advertising from very large corporate clients. It was rare indeed for a national corporate advertiser to place any ads at all in local publications. By contrast, ad placement in a national publication such as the NYT could rarely benefit a local advertiser.

Section 230 trashed all those practicalities and distinctions. It enabled, for the first time, cost-free content in unlimited quantities. Which meant advertising sales growth without limits, either in terms of quantity, or, for the first time, without geographic limits.

Section 230 thus enabled the destruction of the local newspaper industry, by creating a practical capacity to raid local advertising, and an insatiable appetite to do it. Results utopians characterize as network effects of the internet were in fact delivered by legislative abandonment of long-standing legal standards to punish false defamation with civil liability under state laws. That is what dismantled the previous iron-bound requirement to balance increased ad revenue against increased editorial expense.

Getting defamation liabiity out of the way thus became the key to the giantistic platform business model. Absent that change, every increment of platform growth would have had to be matched by an increment of editorial expense. You, and all the other utopians already know that, of course. It is why you all chorus in unison your demands that damages for defamation must become a thing of the past. Internet utopian advocacy is always, as a practical matter, pro-libel. Which is why the developing platform entrepreneurs prevailed on uninformed Congress members, and got what they needed by bamboozling the Congress, with unfounded claims it had to happen, or the potential of the internet would be wasted.

That last part was nonsense. Under different policies, the practical benefits to use the internet to get rid of the costs of paper, ink, printing, and physical distribution, could have been mobilized to strengthen local publishing enterprise. The internet did not have to be used to destroy local newspapers. That was done to accommodate ambitions of giantistic platform developers. The Congress was suckered into doing it. The change was accomplished voluntarily, by policy, not inevitably, by technical change, as you allege.

[Randal]

It is you, Stephen, who has failed to respond to the counterarguments raised.

The prime example is the evidence that gigantism preceded Section 230. All Section 230 did was to give the giants a modicum of editorial power. You’ve never adequately addressed this point.

https://en.wikipedia.org/wiki/Usenet

[Absaroka]

"Do you have any notion what the annual operating costs ..."

Do you have any notion what craigslist charges me to place an ad to sell that old treadmill I'm not using any more? The ad revenue the Local Gazette got from want ads isn't coming back.

And the ad revenue they got from Mom-n-Pop Shoe Emporium isn't coming back either, because A)Mom-n-Pop went out of business because of Walmart and Amazon and B)the same economies that make craigslist free apply to Mom-n-Pop's ads too.

Sending electrons is just fundamentally cheaper than sending paper. Blogger.com and substack can distribute ideas cheaper than cutting down trees and making newsprint.

You remind me of farmers who lamented tractors displacing horses. I get the nostalgia, but the fact was that the tractor doesn't eat when it isn't pulling a plow, while the horse eats every day of the year.

[Stephen Lathrop]

Sending electrons is just fundamentally cheaper than sending paper.

Absaroka — A rule which applies exactly alike in the case of a local newspaper, or a giantistic internet platform. And thus tells you absolutely nothing about what changed to create the giantistic platforms. That was done by policy, not by technical change. Admittedly, deluded policy, which supposed it was done to promote technical change which absolutely nothing could have prevented anyway.

Here is a challenge for you to respond to. If giantistic platforms did not exist, courtesy of Section 230, would barriers to entry into the publishing business be higher or lower than they are now?

Or, put another way, why is it good public policy to encourage high barriers to entry into periodical publishing?

[Absaroka]

"why is it good public policy to encourage high barriers to entry"

It's not good policy to encourage barriers to entry. So let's talk about barriers to entry. The founder of craigslist found that, in fact, there weren't any barriers to entry for the market of classified ads. He thus entered that market, doing what e.g. the 'Thrifty Nickle' had been doing for years, but he found a way to reduce the costs enough he could offer the service for free[1].

What barriers to entry^H^H^H^H laws would you propose to stop him from undercutting the Thrifty Nickle or Podunk Gazette? Be specific!

[1]Craigslist was totally free for a long time, and still is for most of things I list. IIUC they charge for some job listings, and for car listings. I paid $5 last year to list a car, until it sold, with pictures and everything, which compares pretty favorably with $10 for a 2 line 3 day classified ad in the local rag in 1980. An ad that, mind you, was only available to the minority of the population who bought the paper.

[Stephen Lathrop]

Randal — Why did you ignore my question about professional news gathering?

[Randal]

You should spend more time on YouTube. There are very trustworthy independent journalists making a living on YouTube who would probably blow your mind.

Coffeezilla, for instance, was instrumental in bringing down Sam Bankman-Fried and many other crypto scammers including Logan Paul.

[DavidWayne]

Free speech, ironically, requires privacy rights. To actually have vigorous debate on public matters, one needs protection from doxing and privacy rights. Because right now Americans don’t have much protection from doxing, and cannot get Search Engines to exercise Right to Deletion/Forgotten rights like GDPR. Hence, many people actually speak LESS on important topics for fear of being doxed and not having legal remedy. This ironically REDUCES the amount of debate and discussion as people don’t feel safe speaking anonymously (or don’t feel safe that if they are outed/doxed, they have recourse to reverse that). Hence, free speech actually requires a privacy right in order for people to feel comfortable speaking freely and robust debate. Free speech absolutism, where doxing is allowed and there are no privacy protections, actually kills free speech.

I know many people who are not posting much online now in fear of being identified (doxed) and cancelled. Free speech ironically requires a right to speak anonymously and protection from doxing.

Unbridled, unrestricted free speech in the name of “absolutism” is actually stupid – it would allow people to be cancelled, doxed, harassed, and stalked for their views. This kills free speech and actually forces a lot of people to stop speaking publicly in order to protect themselves.

If the SCOTUS has ruled that we have right to anonymous speech under the 1A, then by corollary being doxed is a violation of one's right to anonymous speech. Doxing should then be prohibited because it violates a person's right to anonymous speech, guaranteed by the Constitution. SCOTUS can't have it both ways (aka doxing = free speech, and saying people have a right to anonymous speech).

We need anti-doxing laws.

[Stephen Lathrop]

DavidWayne — Doxing is generally bad, as you say. But you can count on it that happenstance will turn up instances where it is justified, or at least where people arguably suppose it serves a legitimate purpose.

What makes doxing especially bad is that in most cases the doxing target is not a powerful person. But if the target were a would-be local tyrant, with a lot of political power, then public capacity to assemble a crowd at that person’s residence or place of work for a peaceable demonstration arguably ought to be protected.

You would have to consider carefully whether you want to hand your local tyrant a power to suppress political resistance by use of an anti-doxing law to prevent a peaceable assembly.

Conduct equivalent to doxing was often practiced around Boston in the 1760s, and played a major role to set the stage for the American Revolution. The organizers included Samuel Adams and the Sons of Liberty. Those assemblies were not always peaceable. They were often intended to intimidate with threats of violence against persons and property. Some targets fled the colonies. Others promptly yielded to the mobs’ demands.

Among other issues, self-styled American patriots targeted merchants who opposed the patriots’ boycotts of British imports. They also targeted local residents who accepted appointments to sell the special stationery required by the Stamp Act. Those actions led directly to the Stamp Act’s prompt repeal.

Whether that kind of conduct creates a legitimate precedent to support doxing, or a cautionary note from history against doxing, seems at least arguably controversial.

Note also that if a law against doxing is too rigid an approach, it is also not necessary. Private editing prior to publication showed itself to be a highly effective method to suppress doxing for decades, back in the days of ink-on-paper publishing. Because in the publishing business doxing is almost universally bad business practice, no law against it was needed to persuade publishers not to permit it.

[Archibald Tuttle]

I don't disagree, but I'm struck by the fact that disclosure of information that we once published in phone books, should now be considered a crime. It wasn't many years ago when we all had phone books.

[Riva]

I don't think simply publishing a name and address in a phone book is the equivalent of unmasking a speaker who chooses to express himself using a pseudonym.

[Tallman]

It's the consent issue. In the phone book days, you could request (pay) the phone company not to list your name/address. It was also practically easier to publish anonymously/pseudo-anonymously.

[Riva]

I think many founders writing under pseudonyms during the constitutional debates would probably agree with you. In fact, freedom fighters throughout history would probably second that.