One of the most famous free-speech cases in U.S. history, the one that allowed publishers to live without fear of being bankrupted by a libel or defamation suit, involved a newspaper — namely the New York Times, which was sued in 1964 by an Alabama legislator named Sullivan. But any protection free speech gets in the future is more likely to come from [company]Twitter[/company], [company]Facebook[/company] and [company]Google[/company] than it is from the Times, according to a recent essay in the Harvard Law Review.
Marvin Ammori, an American lawyer who specializes in net neutrality law, wrote about where free speech legislation stands now in the June issue of the magazine, and made the case that social platforms are far more important than the New York Times is now — and in fact are probably more important than the paper was even at the time of its landmark case.
In the next decade, if the Supreme Court hands down a landmark decision about freedom of expression, it is more likely that one of the parties in the case will be Google or Twitter than that it will be the New York Times. Traditional media organizations are no longer the only place to find news or make political arguments.
How strong is their commitment?
The rise of social media, Ammori argues, has created a world where freedom of the press “means freedom not just for an institutional press, but freedom for all of us.” Those platforms have created what Harvard’s Yochai Benkler — who testified in the case against document-leaker Chelsea Manning — has called “the networked fourth estate” or the networked public sphere, one that allows journalistic speech to occur anywhere, at any time.
In terms of their reach, platforms like YouTube and Facebook and even Twitter dwarf the New York Times, Ammori argues — YouTube alone gets as many unique visitors in a day as the New York Times gets in a month. This says nothing about the quality of the content they are consuming, of course, but Ammori’s point is that when Google makes decisions about whether to take down a video like The Innocence of Muslims, it has far-reaching implications.
But are these new stewards of free speech as committed to that principle as the Times and its ilk were? My colleague Jeff Roberts raised that question in a recent post, and some of the legal experts he spoke to weren’t sure of the answer. But Ammori argues that for Twitter and Google at least, a commitment to those ideals is baked into their DNA.
Twitter’s Lee speaks about his company’s founders as one would speak of intrepid newspaper owners: ‘Our legal team’s conceptualization of speech policies and practices emanate[s] straight from the idealism of our founders — that this would be a platform for free expression, a way for people to disseminate their ideas in the modern age. We’re here in some sense to implement that vision.’
Trying to protect free speech globally
Each of the major platforms has been tested in various ways, Ammori notes, from Google’s attempts to resist censorship in China several years ago to Twitter’s struggles with the laws of other countries in which it operates — including France’s desire to prosecute anti-Semitism and homophobia and other forms of hate speech, and the crackdown on free speech in places like Turkey and Ukraine.
In fact, one of the biggest differences between the current free-speech landscape and the one that existed for the New York Times in 1964, Ammori says, is the fact that companies like Google, Twitter and Facebook are having to try and blend U.S. free-speech principles with laws in other countries. That has driven Twitter, for example, to implement a kind of localized censorship where tweets can be hidden from users inside a specific country.
Strictly speaking, of course, the lawyers who litigated Sullivan also faced such a world. But they did not need to be constantly aware of it. In 1964, the New York Times barely operated in Alabama, with only a few hundred subscribers. Today, fewer than half of leading tech companies’ users are within the United States. Their users come from dozens of countries and regions, each with different national and subnational laws, with different cultures, histories, and local community standards.
One thing that Ammori mentions in his essay but doesn’t really flesh out is how much the companies he talks about — including Tumblr, WordPress and others — make decisions based on their own interests, and in effect restrict speech far more than they are required to by law. Facebook in particular routinely removes content that the site has decided might offend its users or advertisers, and it rarely says how it arrived at that decision.
Free speech has been privatized
This isn’t just an academic issue — removing that content, as Facebook has done with images related to the war in Syria, can have very real effects on what we as a society know about important issues, as the investigative blogger Brown Moses has pointed out. Even the algorithmic filtering that Facebook does can have a real impact on what we know about certain events, as sociologist Zeynep Tufekci argued in the wake of the riots in Ferguson. Said Ammori:
Companies generally forbid sharing speech that is illegal and unprotected (such as defamatory comments or copyright-infringing videos), but they also prohibit some content that would be fully protected under the First Amendment. For example, Facebook’s terms state: ‘You will not post content that: is hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.’ The First Amendment would protect, with limited exceptions, all this content.
As free-speech advocates like Jillian York of the Electronic Frontier Foundation have pointed out a number of times, the current structure of the social web means that we have essentially given our free-speech rights to a collection of private corporations, who are not bound by the First Amendment. Their commitment to freedom may or may not be sincere, but in the end we get the version of freedom that they choose to provide — and can justify to their shareholders.