Althouse: "As corporate rather than government actors, the Deciders aren’t formally bound by the First Amendment."

April 30, 2013

"As corporate rather than government actors, the Deciders aren’t formally bound by the First Amendment."

"But to protect the best qualities of the Internet, they need to summon the First Amendment principle that the only speech that can be banned is that which threatens to provoke imminent violence, an ideal articulated by Justice Louis Brandeis in 1927. It’s time, in other words, for some American free-speech imperialism if the Web is to remain open and free in twenty-first century."

This is a big subject for me, something I've argued with Bob Wright about, notably in this March 2011 post: "The Bob Wright/Ann Althouse email exchange about what free speech means in the context of saying Roger Ailes needs to kick Glenn Beck off Fox News."

ADDED: Here's a clip from March 2011:

55 comments:

Seeing Red said...: Vodkapundit says:

...Never mind the slam that free speech is an “untenable… extreme libertarian position.”

No… wait… mind it. Mind it a lot. Because that’s the whole point right there, isn’t it? Publications like TNR, which consider themselves gently liberal, represent the values espoused by the universities which trained the people who now get to call themselves “The Deciders....”; 4/30/13, 11:12 AM
Bender said...: About that First Amendment --

Did freedom of speech exist prior to the U.S. Consitution?

Oh, the corners that positivists paint themselves into.; 4/30/13, 11:26 AM
Bender said...: Meanwhile, it is a little late in the day to start complaining about gatekeepers hindering the marketplace of ideas.; 4/30/13, 11:29 AM
Original Mike said...: We put Eric Alterman in charge of policing the Internet. Is he not doing a good job?; 4/30/13, 11:44 AM
Ann Althouse said...: "Did freedom of speech exist prior to the U.S. Consitution?"

American-style free speech developed in the 20th century through the opinions of the courts and through the public discourse.; 4/30/13, 11:45 AM
Anonymous said...: Hey Bob, some of the people gathered under the soft Marxist/feminist/rationalist/universalist umbrella are unthinking, and seek to pursue those ideas to their logical conclusions, and universalize them.

That's where the totalitarian impulses come from, by demanding that human nature and the political economy fit into universal and utopian ideals.

This is one of the greatest threats to freedom, and simply being left alone.

What kind of flowers are you growing in your garden?; 4/30/13, 11:52 AM
Henry said...: Great article. Kudos to Rosen. The whole article is definitely worth reading.

Now, how many New Republic readers just googled Virginia da Cunha?; 4/30/13, 12:00 PM
Henry said...: Quote:

At the time Willner joined Facebook’s content policy team, the company had no rules on the books for what speech violated its terms of service. So Willner decided to write them himself. He chose as his model university anti-harassment codes, since he himself had just graduated from college. But he soon found that vague standards prohibiting speech that creates a “hostile environment” weren’t practical.

You don't say.; 4/30/13, 12:01 PM
Lem Vibe Bandit said...: Freedom of expression must include the license to offend - Hitchens; 4/30/13, 12:08 PM
Nonapod said...: "The company that has moved the furthest toward the American free-speech ideal is Twitter, which has explicitly concluded that it wants to be a platform for democracy rather than civility. Unlike Google and Facebook, it doesn’t ban hate speech at all; instead, it prohibits only “direct, specific threats of violence against others.”

It's an interesting phenomenon, private entities (non-government) effectively globalizing the American ideal of free speech. Too bad not all of them seem to be perfectly following those ideals.; 4/30/13, 12:14 PM
Æthelflæd said...: Gutenberg, Erasmus, Luther, Milton in Areopagitica, Daniel Defoe, Blackstone led to John Peter Zenger and Paine. One could even go back to Socrates. The battle for free speech has a glorious history, and did not spring up ex nihilo in America.; 4/30/13, 12:16 PM
edutcher said...: Since Louis Brandeis invented a right to privacy, as sturdy as a rose petal in a gale, out of an amendment that only guarantees protection from unreasonable search and seizure, I'm leery of people who purport themselves to be Deciders.

The Deciders are supposed to be the people and their elected representatives.; 4/30/13, 12:18 PM
Nonapod said...: The battle for free speech has a glorious history, and did not spring up ex nihilo in America.

I wasn't suggesting that it did. The basic concepts of the 1st Amendment certainly existed long before they were formally codified in such away.; 4/30/13, 12:20 PM
Mark O said...: Obama hates free speech. Doesn't that fact tell you everything you need to know?

Nevertheless, while I favor volunteer adherence to free speech, I find it oppressive to force corporations to conform to someone else's idea. That is as autocratic as is Obama's hate for and suppression of speech.; 4/30/13, 12:20 PM
cold pizza said...: People can figure/filter out noise-to-signal. Who do you skip over in the comments? -CP; 4/30/13, 12:30 PM
Lem Vibe Bandit said...: Speech is civilizations first line of defense, therefore, INEVITABLY, the most vulnerable...

Being the most vulnerable instrument of civilization, the more safeguarded it is, the better the chance it will survive for the future.; 4/30/13, 12:31 PM
Æthelflæd said...: Nonapod -

I wasn't directly addressing or criticizing your statement in particular.; 4/30/13, 12:33 PM
MnMark said...: I don't really understand the "imminent violence" standard. Does that mean, for example, that as long as Muslims threaten to murder people if their religion is insulted, that it is constitutionally OK to prohibit speech that insults Muslims? Because it will lead to imminent violence by Muslims?; 4/30/13, 12:35 PM
Henry said...: This comment has been removed by the author.; 4/30/13, 12:36 PM
Henry said...: Mark O. wrote: Nevertheless, while I favor volunteer adherence to free speech, I find it oppressive to force corporations to conform to someone else's idea.

I don't think that is at all what Rosen is saying. Rather he is celebrating the resistance of these corporations to European-style speech codes and advocating that they continue to do so -- imperialistically.

If they can get our tepid executive to advocate along with them, so much the better. And if he won't, then at least on free speech issues our Constitution limits the President to petty grandstanding. In the context of the Innocence of the Muslims video Rosen calls his performance a "subtle pressure...close to a version of the heckler’s veto."

His summation:

In the heat of the moment, both the White House and the content teams at Facebook and YouTube had to make judgments about the same inflammatory material. From a free-speech perspective, the young Deciders made better decisions than the president of the United States.; 4/30/13, 12:38 PM
Richard Dolan said...: "American-style free speech developed in the 20th century through the opinions of the courts and through the public discourse."

And it's been a very rocky road, with lots of unfortunate turns. Brandeis had a nice turn of phrase in Whitney v. California, 274 U.S. 357 (1927), but it is helpful to recall that the case involved a conviction under state criminal anarchy statutes of members of the Communist Party for advocating that workers of the world should unite in revolutionary activity, and that Brandeis voted to affirm the convictions.

The advent of the internet has added even more bumps in that road. But Rosen is not so much concerned with governmentally imposed restrictions on speech as he is restrictions imposed by private parties who control the key portals to speech on the internet.

Whether the 'deciders' will continue to have the influence over time that concerns Rosen remains to be seen. There was a time when the owners of the local newspaper exercised a similar control over content, but that eroded as more newspapers were formed. Even where there remained only one or two newspapers in a locality, private parties wanting to express their own views often resorted to pamphlets and the like (a typical means of mass communication at the time of the Revolution and the years after it). And later still along came radio and TV.

Google, Facebook, Twitter and the rest will almost certainly undergo the same erosion of their position over time. Given the speed with which these things evolve (who had heard of Google 20 years ago, or Twitter and Facebook 10 years ago?, that day is sooner than you might think. Restrictive policies about what such internet 'gatekeepers' allow people to write using their websites and tools will only hasten that day. In contrast, governmental regulation of internet portals and search engines is likely to have the opposite effect. It is a common-place that the regulators tend to become captured entities by those they are intended to regulate, and end up serving the interests of the regulated entities more than the public interest. That reality is simply a reflection of the fact that the regulated entities have much more at stake than anyone else, andn thus far more incentive to try to exercise influence over the regulators (and, if that fails, the politicos to whom the regulators must answer).

So, while it is all well and good to note that restrictions on speech are generally a bad idea no matter who imposes them, government regulation as the solution may be worse than the problem.; 4/30/13, 12:42 PM
Tim said...: So, who decides who the "Deciders" are, and how do we hold them accountable.

That is equally important, if not more so, than free speech rights, although those rights are part of the arsenal of weapons holding the "Deciders" accountable.

Free Speech isn't an end - it's a means.; 4/30/13, 12:43 PM
Rabel said...: Jeffrey Rosen in the article:

"A year ago this month, Stanford Law School hosted a little-noticed meeting that may help decide the future of free speech online."

"Although I can’t identify all the participants by name, I am at liberty, according to the ground rules of our meetings..."

I can't think of a adequately witty retort to top the reality.; 4/30/13, 12:43 PM
Æthelflæd said...: I think the "Deciders" need to get some marketing help. That name just ain't doing them any favors.; 4/30/13, 12:45 PM
Steve M. Galbraith said...: How are good ideas, the "Truth", supposed to beat bad ideas?

I'm not arguing for any sort of censorship or prior restraint.

But the idea that in the free flow of ideas, the marketplace concept, that good ideas will defeat bad ones is belied by history. Entire civilizations were based on bad ideas. Horrible ones. Evil ones.

There isn't a metaphysical quality to good ideas.

Again, not arguing for state regulation (with exceptions of course such as libel, copyright infringement, imminent violence et cetera). But I think it's dangerous to simply believe that we throw all of these ideas out there and the good ones will take hold.; 4/30/13, 12:48 PM
Lem Vibe Bandit said...: I can't think of a adequately witty retort to top the reality.

If this is the behavior of the people that are supposed to be championing it... to feel at a loss is a reasonable reaction.; 4/30/13, 1:03 PM
Lem Vibe Bandit said...: But I think it's dangerous to simply believe that we throw all of these ideas out there and the good ones will take hold.

The outcome to the opposite of believing that to "throw all of these ideas out there and the good ones will take hold" is more dangerous.

...that good ideas will defeat bad ones is belied by history. Entire civilizations were based on bad ideas. Horrible ones. Evil ones.

Again... this is relatively NEW. with very few exceptions once people taste freedom they don't go back.

American-style free speech developed in the 20th century through the opinions of the courts and through the public discourse.

It seems counterintuitive that the best response to bad speech is more free speech... but that is exactly what it is.; 4/30/13, 1:43 PM
Lem Vibe Bandit said...: Alan Dershowitz on free speech; 4/30/13, 1:49 PM
Steve M. Galbraith said...: "Again... this is relatively NEW. with very few exceptions once people taste freedom they don't go back."

Sorry, I disagree. The entire 20th century - or most of it - in my view, is proof.

And every century before that to a large degree.; 4/30/13, 1:55 PM
Bender said...: "American-style free speech"

Actually, that was a rhetorical question.

Being a natural liberty, of course it existed before the Constitution. Consequently, it is not dependent upon the Constitution or judicial precendent. Neither pieces of paper nor judges give us our rights - they are ours as a matter of natural right, inherent in our being.

But if one relativizes freedom of speech into American-style and non-American versions, if one rejects the idea of inherent liberty by insisting only on positive law, which comes and goes, then it ain't really freedom.; 4/30/13, 1:56 PM
Bender said...: If there are American-style and non-American versions of "free speech," then by all means it is proper, if not obligatory, for it to be suppressed in some parts of the world. We have our "free speech" and the Chinese have their free speech. It's all good.; 4/30/13, 1:59 PM
Methadras said...: If political speech in the US incites violence, then is that illegal?; 4/30/13, 2:08 PM
Known Unknown said...: Wait, I thought George W. Bush was The Decider?; 4/30/13, 2:10 PM
Bender said...: If political speech in the US incites violence, then is that illegal?

Is what illegal?

Are you asking: "Is the political speech illegal?"

Or are you asking "Is inciting violence illegal?"; 4/30/13, 2:10 PM
Known Unknown said...: If political speech in the US incites violence, then is that illegal?

Depends upon the directness of the speech in relation to the violence, I would suppose.; 4/30/13, 2:11 PM
Lem Vibe Bandit said...: The poor you will always have with you...

I say, Bad speech we will always have with us.

I'm not saying 'give up, its a lost cause'... I'm recognizing the an intractable human condition that is poverty and bad speech... and at the same time saying that the best solution to bad speech is more free speech.

If you go back... how do we even recognize what is bad speech in the first place?... didn't that recognition born out of somebody having the freedom to teach it, to pass it along?

'Truth' is in the mouth of the speaker.; 4/30/13, 2:12 PM
Lem Vibe Bandit said...: Sorry, I disagree. The entire 20th century - or most of it - in my view, is proof.

I think you need to narrow it down a bit for the discussion to have any chance at coherency.

I mean, I'm the most incoherent at times but that's why we invented rules... not to shut people up, but to have clarity and avoid confusion.; 4/30/13, 2:19 PM
Steve M. Galbraith said...: "Again... this is relatively NEW. with very few exceptions once people taste freedom they don't go back."

Sorry, my mistake; I misread your point.

I still think it's human nature - part of our hard-wiring - to choose security over freedom.

In any case, my point is that we shouldn't just believe that if we say the Holocaust happened to someone who says it didn't that the truth will win out. The words, the ideas don't carry some sort of metaphysical quality.

Human beings have to actively promote the truth, repeat it, embrace it, in order for the "Holocaust is a lie" idea to fail.; 4/30/13, 2:23 PM
Lem Vibe Bandit said...: If speech is our currency... coherency is a kind of denomination... 'epithets' are a kind of denomination worth less than say a 'thank you' or similarly worded speech.

How do we know something is 'better'... We have the freedom to try it... if the experience is 'positive' - whatever that positivity entails to the experiencer - then the person may engage in that form of speech again and again and pass it along.; 4/30/13, 2:32 PM
Lem Vibe Bandit said...: Human beings have to actively promote the truth, repeat it, embrace it, in order for the "Holocaust is a lie" idea to fail.

I think I can agree with the spirit of that.; 4/30/13, 2:34 PM
Lem Vibe Bandit said...: I still think it's human nature - part of our hard-wiring - to choose security over freedom.

Yea... even when the statistical evidence says that violence is on the decline, the sense of impending danger seems/feels more possible.; 4/30/13, 2:42 PM
Unknown said...: I don't understand why Althouse is so proud of misrepresenting Bob Wright's position. It's pretty shameful in my opinion.; 4/30/13, 2:45 PM
Larry J said...: SMGalbraith said...
How are good ideas, the "Truth", supposed to beat bad ideas?

I'm not arguing for any sort of censorship or prior restraint.

But the idea that in the free flow of ideas, the marketplace concept, that good ideas will defeat bad ones is belied by history. Entire civilizations were based on bad ideas. Horrible ones. Evil ones.

All too true, but how many of those civilizations had free speech? The ones that most immediately come to mind were totalitarian dictatorships (Soviet Union, Communist China, Nazi Germany, etc.) where any attempt to speak ideas against the state was (are) met with imprisonment or death.; 4/30/13, 3:38 PM
Dante said...: I'll wait until the US government returns free speech to corporations.

The US government holds that limits of free speech in the workplace trump your ability to have a job.

I don't mind people advocating for google/FB/etc., to have more free speech, provided there are safe places for kids to go.; 4/30/13, 3:40 PM
Anthony said...: Larry J:
Germany in the 20s and early 30s had pretty robust free speech. In 1933, more than half voted for a totalitarian government.; 4/30/13, 3:53 PM
Lem Vibe Bandit said...: I don't understand why Althouse is so proud of misrepresenting Bob Wright's position.

Even if Bob's presentation is one that would lead to less free speech?

Maybe Althouse sees Bob's charge of 'misrepresentation' as nothing but a crutch Bob is leaning on to keep from having to drop his misguided ideas.; 4/30/13, 4:21 PM
Steve M. Galbraith said...: Back to the main subject:

"But to protect the best qualities of the Internet, they need to summon the First Amendment principle that the only speech that can be banned is that which threatens to provoke imminent violence,"

Not true, not true at all.

Defamation? Copyright infringement? National security information? Grand jury proceedings or testimony? Inside trading information? Child porn?

How about personal information of others? Social security number? Credit card information?

Imminent violence certainly isn't the only limit.; 4/30/13, 4:38 PM
Anonymous said...: If the thin blue line defending internet freedom of speech is a bunch of twenty-something Harvard and Stanford graduates working at huge dotcoms, we're in trouble.; 4/30/13, 6:51 PM
Known Unknown said...: If the thin blue line defending internet freedom of speech is a bunch of twenty-something Harvard and Stanford graduates working at huge dotcoms, we're in trouble.

But they're out in the real world now, and I trust them more than our "betters" in Washington.; 4/30/13, 7:56 PM
Beldar said...: In the phrase "the Deciders aren't formally bound," the word "formally" ought not be included.

The referenced individuals aren't bound, period, full stop, end of paragraph, end of discussion. Anyone who is confused about that hasn't read the First Amendment.

One may be a believer in and supporter of the First Amendment — I'm one — without being in any formal or informal or other way bound by it. It constrains government.; 4/30/13, 9:04 PM
Lem Vibe Bandit said...: It constrains government.

And what I'm saying is that it ought to constrain "the deciders" as well.; 4/30/13, 9:43 PM
Lem Vibe Bandit said...: "The deciders" ought to be like Wikipedia's Jimmy Wales...

Wales does not give orders or directly cause things to happen. He is more of a noninterventionist god.; 4/30/13, 9:53 PM
The Godfather said...: When our youth are being "educated" in an environment of speech codes, and "civility" and "anti-bullying" and so forth, much of this discussion seems pretty irrelevant. Most of the chattering class don't really believe in free speech, except for themselves and those who agree with them.; 4/30/13, 10:03 PM
Lem Vibe Bandit said...: Most of the chattering class don't really believe in free speech, except for themselves and those who agree with them.

That's the sad truth of the matter.; 5/1/13, 12:01 AM
Known Unknown said...: And what I'm saying is that it ought to constrain "the deciders" as well.

The "Deciders" can be punished by their consumers.

(The collective and media response to Google's China problem comes to mind)

Government inertia can too, but it's a bit more difficult.; 5/1/13, 12:04 AM