Free Speech Unmuted: From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Prof. Eric Heinze

Jane and I speak with Eric Heinze (Queen Mary University of London) about how the digital age has transformed the meaning and limits of free expression, from Britain’s recent Lucy Connolly case—involving online incitement and hate speech—to the philosophical and legal contrasts between the American Brandenburg standard and the U.K.’s more interventionist approach.

Prof. Heinze argues that democracies must rethink free speech in an era dominated by opaque, powerful platforms like Twitter and Facebook, where risk, harm, and accountability are far harder to define. He and Jane and I debate whether governments—or tech companies—should bear responsibility for regulating speech online, and what "freedom" really means when algorithms, not citizens, shape public discourse.

Our past episodes:

• From Brandenburg to Britain: Rethinking Free Speech in the Digital Era with Eric Heinze
• A Conversation with FIRE's Greg Lukianoff
• Free Speech Unmuted: President Trump's Executive Order on Flag Desecration
• Free Speech and Doxing
• The Supreme Court Rules on Protecting Kids from Sexually Themed Speech Online
• Free Speech, Public School Students, and "There Are Only Two Genders"
• Can AI Companies Be Sued for What AI Says?
• Harvard vs. Trump: Free Speech and Government Grants
• Trump's War on Big Law
• Can Non-Citizens Be Deported For Their Speech?
• Freedom of the Press, with Floyd Abrams
• Free Speech, Private Power, and Private Employees
• Court Upholds TikTok Divestiture Law
• Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama
• Protests, Public Pressure Campaigns, Tort Law, and the First Amendment
• Misinformation: Past, Present, and Future
• I Know It When I See It: Free Speech and Obscenity Laws
• Speech and Violence
• Emergency Podcast: The Supreme Court's Social Media Cases
• Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
• Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
• The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
• Free Speech On Campus
• AI and Free Speech
• Free Speech, Government Persuasion, and Government Coercion
• Deplatformed: The Supreme Court Hears Social Media Oral Arguments
• Book Bans – or Are They?

Comments

[Dr. Ed 2]

I really wish Trump would look at how well it didn't work for Bush 41 and end this flagburning crusade....

Although the principle should apply to burning the gay pride flag as well.

[Frank Drackman]

Au contraire, we should REWARD Flag Burning.
With a one way ticket to Guantanamo, it’s very pleasant this time of year, watching the Banana Rats mate, Dolphins play.
And thanks to 4 yrs of Parkinsonian Joe there are Vacancies (check “Trip Advisor” first)
OK. Not sure if you can see the Dolphins from Camp X-ray

Frank

[wvattorney13]

From my memory of Bush 41 and the anti-flag burning campaign, the public at the time was fairly outraged at the Supreme Court for finding a right to burn the flag. Large majorities across all political parties supported a ban on flag burning.

Bipartisan majorities passed a proposed Constitutional Amendment banning flag burning in the House and it typically got 64 or 65 votes in the Senate (one time falling only 1 vote short).

It was only as the years passed that the average person started to accept the idea that flag burning was freedom of speech and the issue sort of died.

But again, I don't view what happened as Bush 41 stepping into any sort of hornet's nest.

[Stephen Lathrop]

He and Jane and I debate whether governments—or tech companies—should bear responsibility for regulating speech online,

The answer is, "Neither," at least insofar as, "tech companies," refers to the present iteration.

A deliberate choice to let government regulate speech is just a decision to give up and settle for censorship.

"Tech companies," in its present sense means oligopolists actually motivated for business reasons to degrade public discourse.

Also, the tech company business model is apparently unsuited to the practice of news gathering. Nor is a cacophony of Joe Keyboard style commentary a substitute for a public life critically dependent on a supply of accurate news to support wise decision making by the public itself.

Expressive freedom cannot do without effective news gathering. The only way so far discovered to supply news gathering is to leave management of press freedom in the hands of a myriad of rival private publishers, who edit everything prior to publication.

Because such publishers are relatively small and numerous, they compete vigorously both as businesses, and to fill diverse information niches. Because they support their businesses by reliance on the proceeds of publishing activities, they remain at practical liberty to resist government extortion, co-option, or censorship.

As recent baleful experience has demonstrated, giant size, complicated business relationships, and government connections, are all publishing vulnerabilities, not publishing advantages.

No means to vet news accuracy by algorithm will ever be discovered. We know that because human experts—veteran editors with decades of experience—still cannot read copy and say reliably whether its content is true or not. That is never likely to be possible. So private editors usually do not try to do that.

Instead, good private editors rely on known provenance as proof of their copy's accuracy. It must be supplied by sources of proven integrity, who use well-practiced methods which have been shown by experience to work reliably.

Also, all that work must be done in a publicly trusted institutional context, or the reporters' sources will cease to supply the most important kinds of news stories—those about important occurrences in the halls of government, and those generated by major civic institutions, whether business corporations, or private organizations.

The sources for that kind of story are often concerned to remain unknown; they take personal risks when they disclose information. They will always remain unwilling to take those risks without assurance that the publisher they disclose to has both an established audience, and sufficient institutional independence to guard the sources' anonymity.

Experience has shown that the best investigative reporters in the world—journalists with decades of success working for institutional publishers, and thousands of personal contacts in the most influential places—nevertheless struggle if they cease to be employed by institutional publishers. They struggle because their sources must not only trust the reporters, they must also connect to publishers with large audiences, and established records of news gathering in the public interest.

Thus, the framing quoted above from EV's OP remains more beside the point than otherwise. Neither of the alternatives posited is the right choice to optimize a public life dependent on a steady supply of reliable published information.

Nor can anyone expect expressive freedom to endure without that information. The only way to get it is to rely on news gathering dispersed among thousands of private publishers, who edit their content before publishing it, and rely on public faith in the quality and variety of their offerings as their principal means of competition.

All the right questions direct attention to means to adapt that kind of publishing regime to modern internet realities. Nobody is currently giving much attention to such questions.

[David Nieporent]

Because such publishers are relatively small and numerous, they compete vigorously both as businesses, and to fill diverse information niches. Because they support their businesses by reliance on the proceeds of publishing activities, they remain at practical liberty to resist government extortion, co-option, or censorship.

All of this is the opposite of true.

[Stephen Lathrop]

My own lived experiences, Nieporent, in D.C., Idaho, Wyoming, Colorado, Oregon, and Massachusetts. True everywhere, although decades out of date now.

Also corroborated by the published experiences of famed journalists including David Halberstam, Seymour Hersh, I.F. Stone, Bob Woodward, and Carl Bernstein, among many other modern examples. Not to mention the historical experiences, of, for instance, Samuel Adams, Tom Paine, and Benjamin Franklin. Note also that founders James Madison, Alexander Hamilton, and Thomas Jefferson relied on the principles I describe to make the revolution, and establish the American republic.

[David Nieporent]

although decades out of date now.

Yes. This was my point.

[Frank Drackman]

Hey Conspirators, nobody say anything mean about Martinned’s Boy-Buggering-Homo King, he, oh sorry, “His Majesty” still enjoys the “Divine Right of Kings” (“Divine” the Actor had more of a Noble bearing)
I prefer the “King of Cartoons” from the Late/Great Pee Wee Herman’s “Pee Wee’s Playhouse”

Frank

[NvEric]

Who 'should bear responsibility for regulating speech online' ?
Emphasis must be on the person doing it.

Personal self-control is a foundation that can not be stressed enough. Get real folks. This is what freedom means - self-control, not anything goes !

Secondly is the public reaction or lack of reaction in giving a speaker feedback, positive or negative, and likewise in the fashion of personal self-control.

Without personal self-control there can be no value to freedom, because freedom requires a positive result. Positive actions build, and so too does positive speech. With defining positive and negative being the controversy.

Understanding and defining foundational precepts to our system comes first, especially during this current degeneracy of standards where 'anything goes' devolves society while claiming the opposite is true.

This looking to "higher authorities" for and to control always weakens the People through a lack of personal self-control.

[wvattorney13]

I'm skeptical of the claim that because of new technology X that the whole ball game has changed and our freedoms must be "reexamined."

Although I am sure that the parties here do not intend a slow creep of eroding rights, it will have that result. For the same reason that technological advances in guns don't kill the 2A, the fact that we can have more speech at the click of a mouse is a good thing, not something to be feared.

[Stephen Lathrop]

wvattorney13 — It is something to be feared if what you get in fact is more personal opinion, and less press freedom. 1A expressive freedom is not just about speech. It is about speech, and it is about publishing, separately. To conflate those separately enumerated expressive freedoms creates confusion and misjudgment. Both freedoms need full protection.