The Messiness of Free Speech Online and How It’s Only Going to Get Worse

Free speech is a messy thing at the best of times. Throw in the Internet and it can be a headache. That was on full display this year.

One reoccurring themes throughout 2021 is online free speech. Whether it was right wing people crying that their speech has consequences or government actually legitimately attempting to crack down on certain forms of speech, there are plenty of examples where free speech was the subject of debate. What’s more is that topics surrounding free speech has resulted in no shortage of disagreement – especially in political circles.

It’s this confusion that has led some to apply labels to articles published on Freezenet. Whether it makes me a conservative hack trying to give as much oxygen as possible to disinformation or some liberal who believes all speech must be allowed because freedom of expression trumps all, there have been subtle attempts to put my writings in one camp or another.

Of course, the problem is, the writings don’t necessarily fall neatly into one political camp or another. The simple fact is that the position has remained the same throughout all of this: identify actual threats to freedom of expression and offer evidence and analysis accordingly. Of course, in these hyper partisan times, offering neutral analysis just won’t do for some and the push is to try and frame everything in a political light even when political positioning simply isn’t there.

A big problem is identifying what free speech is and is not. From our perspective, we try and base our knowledge on what is legally free speech. When looking at case law, one thing will probably stand out: that free speech revolves heavily on what the government can and can’t do to a persons speech. Some pages offering legal summaries will probably explain that a persons free speech can be infringed when government restricts certain speech. So, for instance, when someone speaks about an environmental issue, the government can’t mandate law enforcement to arrest that person based solely on that person speaking about environmental issues. That is a violation of freedom of expression.

Conversely, if someone is in a private establishment saying nasty things about other people in the building, then the owners of that establishment can expel that individual. That is their choice. Some people might argue that the person getting expelled had their speech restricted. Technically, that is true, but the owners of a private establishment have rights too. One thing they can do is set rules for what guests and patrons can do. By expelling that patron, the right to freedom of expression was not actually violated. The consequences of that speech manifested.

For us, when you understand these two scenarios alone, it helps to have a better understanding about the nuances of free speech. It’s not a be-all and end-all way of understanding, but it’s, at minimum, a good start.

Right to Reach is Not a Right

One of the big ways freedom of speech and expression manifested is with conservatives complaining that they are being the subject of moderation. Some complain that if they get banned for saying something, then their right to free speech is infringed. The problem is that it is not the government that is making this decision: it’s a private company. So, when Twitter bans you for your speech, that is ultimately their choice. They set the rules. It is their site in the end. As such, your right of free speech was not technically infringed.

It is why when we see arguments that social media platforms are modern day squares, it really is total nonsense in this context. The only way a platform could really be modern day squares where everyone is allowed to say what they want is if the government owns and operates that platform. To our knowledge, we aren’t aware of any platform that is publicly owned. These are all still private companies – some of which are publicly traded on various stock markets.

So, when some conservatives were getting banned on Twitter, the only real time it was notable was when Donald Trump got banned. It was notable because we are talking about the US president getting banned on Twitter. We largely agreed with the attitude at the time which was somewhere along the lines of “about darn time.” It was mainly the countless violations of the community standards that seemed to have no consequences of any kind. As a result, it did feel like there was a set of rules for some and a set of rules for everyone else. That is inherently a problem.

At the end of the day, this was not a violation of free speech because it falls squarely in the latter of our two examples above.

Of course, some platforms offer a lot of reach. So, when conservatives complain that their speech is being restricted, it was understandable commentators came up with the phrase “right to reach”. It perfectly encapsulates what is being demanded by some voices. It’s not free speech they are actually complaining about, but it is the lack of speech without consequences that is actively being complained about. As such, we are on board with the comments that you don’t have the “right to reach” simply because such a right doesn’t actually exist.

Actual Threats to Free Speech

That is not to say there aren’t threats to freedom of expression online. In fact, there are numerous threats all over the world over free speech. A really good example comes from the online harms debate that is actually taking place in multiple countries. The UK and Canada are two such examples.

Generally speaking, the ideas being floated via online harms is that the government intervenes and determines what they consider “harmful content”. As such, they are compelling social media platforms and other sites to behave in a certain way. What is considered “harmful”? At least in Canada, that is not actually well defined. Sure, the government talks a big game about how it is specifically 7 different kinds of harmful content. However, provisions (and a source of contention) says that what is considered “harmful” can change at any time. That alone is an extremely big problem.

First of all, yes, the government is saying that child pornography is considered harmful. It’s really hard to say otherwise. After all, such content is already very illegal for very good reason. So, the government can claim to be altruistic and say that we are only after bad content, what is the big deal? The problem comes from the wiggle room the government gave itself. What is to stop a future government from using that provision and saying that environmental issues is also considered “harmful” and restrict accordingly? What if a government says any discussion about weapons is “harmful”? The sky is truly the limit when it comes to what the government wants to restrict online.

Breaking this down to a fundamental level, this is the government ordering a private company to restrict certain forms of speech. It is not the platform necessarily restricting said speech, but rather the government. As such, this is where speech is being violated. The government is restricting that speech at the end of the day.

There are other nasty aspects to the online harms debate such as how all 7 harms are being treated equally even though there is a huge difference in legality between said “harmful” content, but that basically starts getting us off topic here.

Why Online Free Speech is So Important

There was a time when the idea of online free speech was generally considered a silly thought. These days, with increased adoption of the Internet, the idea isn’t so silly these days. Simply put, if you have free speech in the real world, then you should enjoy free speech in the digital world as well. The technology may have changed, but your rights largely remain the same.

What’s more is that free speech is a very important thing to have when talking about accountability. If, for example, the government is considering legislation, free speech is vitally important when someone finds actual legitimate flaws with said legislation. That person can gather evidence and research and point to that evidence to say “hey, this is not a good law! Here are the reasons why.”

If the government silences that critic based on their speech, that, again, is a violation of their speech rights. What’s more is if the government is trying to silence that voice, that is a very bad sign for the debate around said issue to begin with.

Freedom of expression is hugely important in society for a variety of reasons. Whether it is through art, whistle-blowing, literature, and a host of other things, freedom of expression enriches society as a whole in many different, but fundamental ways.

But What About Disinformation?

This is ultimately where things get really messy in a hurry. Anyone who claims that there are simple obvious solutions to such a problem is largely kidding either you, themselves, or both.

The strength government has is the idea that disinformation is harming society. Indeed, one of the duties of the government is to protect people from harm. Technically speaking, they do have a motivation to do so even though they sometimes do a poor job of protecting their people. In the instance of disinformation, if people are spreading lies such as vaccines being dangerous, that encourages people not to take the life saving vaccine. When people don’t get the vaccine, that leads to a greater likelihood of early death from the virus. It’s plain science at this stage that if you get vaccinated, you are more likely to survive a COVID-19 infection.

In that same vein, if more people die from the COVID-19 virus, that is loss in productivity, loss in tax revenue, and a loss in the overall economy. What if that person would have otherwise started a business that became an international brand years down the road? That could very well have been a huge loss in tax revenue. Because of that, the government suffers in numerous ways. What’s more is that right to life is a very real right as well. Arguments can be made that you can get a violation of right to life when people get fed disinformation to discourage vaccine uptake. You can already see people banging the table saying, “something needs to be done.”

The flip side is the aforementioned threats to freedom of expression. If the government chooses to intervene, then how does the government do so while respecting freedom of expression? That’s the million dollar question in this particular aspect of this debate. Ordering a platform to restrict certain forms of free speech very quickly runs afoul of free speech rights. Doing nothing isn’t exactly an attractive answer either.

Throughout history, a solution coming out of the private sector is often a recipe for disaster. In fact, letting the private sector go it alone often leads to monopolistic tendencies that so often harm society. Just look at big tobacco in the past for instance. In this case, however, it’s hard to come up with any alternative for disinformation here. Social media, to be fair, has made efforts to moderate content. Still, critics have long argued that these efforts aren’t enough.

This is where some start thinking of a more middle of the road approach. Have government give these platforms incentives to clear obvious disinformation from the platform in the first place. On paper, that sounds like a decent all around idea. Unfortunately, known approaches today are actually dead on arrival approaches. This includes 24 takedown requirements.

Part of the problem is the volume of content getting posted to these platforms. It’s one thing to moderate a small web forum that gets maybe 20 posts a day. It’s quite another to moderate a platform that gets 2 million messages every second getting posted on the site. As some point out, moderation at scale isn’t all that possible. It’s well documented that moderation teams suffer from psychological problems. Another well documented problem is the outsourcing of moderation staff on top of it all. We can tell you from the getgo that the latter is not a pleasant rabbit hole to travel down, let alone the former.

The obvious response from critics is that 24 hour takedown requires won’t permit proper analysis of any one given situation. Instead, it motivates companies to use imprecise filtering that very likely won’t do even an adequate job in the first place. This is because government sometimes misreads the situation. The idea is that the platforms won’t moderate content more thoroughly simply because they won’t. Chances are, it is actually more because they can’t. The volume of content being posted is massive to begin with. Tackling such a problem of moderating something so big is obviously going to be resource intensive at minimum.

At the risk of this section being anti-climactic, there really is no easy answer in all of this. A highly nuanced and precision solution would be necessary here. what that solution is, well, we really don’t know. What we do know is that we aren’t aware of any government coming up with a satisfactory solution in the first place. A solution would require seemingly surgical accuracy to try and extract the problem. More often, the government takes a sledge hammer approach and casts nuances aside. That is obviously no solution either.

Free Speech is Going to Continue to Be Messy

Unfortunately, moving forward, the free speech seems destined to continue to get messy. Between some who want to be free of the consequences of their speech and those who want to heavily regulate platforms run by private companies, the debate seems to be destined to stay messy for the foreseeable future. The problem is, very few proposals, if anything, adequately takes free speech into consideration. As a result, we’re going to see solutions that ultimately threatens free speech and, well, turn out to not even be a real solution in the first place.

At this point in time, the situation for free speech isn’t good. What’s more is that there is also the risk that some will confuse real threats to free speech with those who are simply after a right to reach. That alone will only add to how messy the debate is going to be.

While free speech was always a messy affair, next year is going to punctuate how messy it ultimately is. With few adequate solutions to be found, we can only see the future for free speech as looking pretty grim.

Drew Wilson on Twitter: @icecube85 and Facebook.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: