Govern or Be Governed: What are the Threats to Freedom of Speech?

The afternoon at Govern or Be Governed starts with two of my heroes, Jameel Jaffer from the Knight First Amendment Institute, and Kate Klonick of St. John’s Law school as well as director of Center for Countering Digital Hate Imran Ahmed, who I’m hearing for the firs time here.

Klonick, moderating, notes that she’s been on panels for years about being in a perilous free speech moment, but none quite this perilous. Jameel suggests this is a terrible moment for free speech and democracy around the world, and particularly in the US. In the US, he argues, there’s no precedent in modern American history for Trump’s assault on institutions critical to democracy. This administration in its second term is not facing resistance within the government – during his last presidency, he was impeached twice, faced significant setbacks in the Supreme Court and had pressure from whistleblowers within federal agencies. Now he’s got a submissive Congress and a compliant Supreme Court.

Also, this time around, Trump is directly attacking democratic institutions, like universities and law firms. He’s demanding news organizations take down speakers he disagrees with. Those attacks on institutions has long-lasting effects on American democracy. Finally, American free speech culture may not have the resilience we thought it did. And now people fighting for free speech around the world no longer have the US as their reliable ally on these issues.

Imran, who works directly on issues of hate speech online, characterizes Jameel’s analysis as “top down” – he offers a contrasting bottom-up response, focused on the “industrialization of manipulation.” Unilateral control by a small coeterie of platforms by billionaries, with no meaningful checks and balances, leads to a highly manipulable environment. He references his friend and colleague Jo Cox as a victim of the dangerous environment in which hatred and lies are transmitted. The fact that truth and lies look identical online creates an environment in which distortion and hypertransmission of hate and lies masquerades as “free speech”.

Agreeing with the top down and bottom up diagnoses wonders who we can empower to help us in this perilous situation. She references Jack Balkin’s “free speech triangle” – censorship used to be about states censoring individuals. Now speech requires a democratic state and responsible corporate power, as well as individual bravery. Where do we find out power if states and corporations are cooperating to silence us?

Jameel notes that we’re moving away from direct intervention in content moderation into structural solutions, which seem more appropriate towards solving the problems of the information environment: transparency requirements, data ownership, interoperability, data portability. We should be supporting public digital infrastructures, public interest technologies because they would help address the current pathologies. He notes that the important questions of free speech are not about who can say what: they are about the political economy of platforms, the financial underpinnings of these critical media organizations, who have turned out to be willing to align with the Trump administration.

Imran argues that the incentives in the situation are counter to high quality discussion. The incentives associated with contemporary social media creates a cortisol-inducing, terrible landscape. This is not, he argues, a partisan issue – republicans and conservatives care about these issues as well. He tells us about a focus group his organization conducted with white, libertarian men in Denver, Colorado, and they’re shocked that they can’t sue the platforms under section 230. The most libertarian of the group wanted more accountability for the platforms. “Section 230 is an abomination”, he argues, a get out of jail free card. (Again, a reminder that I am transcribing here – this is not a point of view I endorse.)

Thankfully, we have a section 230 scholar on stage – the moderator, Kate – who explains the distinction between intermediary liability and a “get out of jail free” card. Imran’s response is to reference a colleague whose daughter killed herself after receiving content that negatively affected her mental health. “[Section 230] simply has no moral justification for existing as it does not.”

Jameel notes that removing Section 230 in the US would do nothing to change platform ability to amplify content because US law sees that content as protected speech under the first amendment. The structural solutions like data ownership and transparency would actually have an impact, he argues. We should focus on those interventions and on building alternatives. Imran counters that we need a meaningful sanction, including pulling section 230.

Kate leaves us with the concern that none of the levers we reach for actually work, which leaves us struggling for easy solutions, instead of the massive transformations we need.

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