Russell Pangborn
Elon Musk and his free speech Twitter crusade sounds noble to some. But if unregulated instant mass communication includes hate speech, outright lies, market manipulation, rumor, and libel, it should not get a free pass under the umbrella of free speech. Anybody that tells you it should is gaslighting you.
There was a time in the U.S. when laissez-faire was given the same holy status that we give the notion of free speech. Teddy Roosevelt, a progressive Republican, with the aid of the principled muckraking press, was able to introduce laws to regulate food and drugs. You might think of that as a no-brainer move, but it was not easy. At the time, people strongly believed it was the role of the marketplace to punish companies that killed or irrevocably harmed customers. Unfortunately, people were needlessly dying and unfettered free trade was not working very well on that front. Still, it took a massive effort for the progressive Republicans to move the needle for the regulations we now take for granted.
The internet is a game changer on the dissemination of information. It includes algorithms that feed people unsubstantiated rumors from anonymous sources that do harm. Once a false damaging rumor is out, it can’t be undone. We have to acknowledge that we have not totally come to terms with the computer age where an entire book can be copied in an instant or the entire works of a musician can be stolen in a minute. That was not happening 50 years ago. Like instantaneous electronic copying, the computer age has maximized the reach for hate and propaganda on a massive scale.
People sometimes say attempting to regulate free speech is a slippery slope. That may be preferable to falling off a cliff. Once a democracy fails, free speech will disappear anyway. It may be okay to charge that an election was stolen, but once the stolen election charges have been vetted by courts and reputable journalism, is it still free speech after it has been whittled down to an outright lie?
Our neighbours to the south have not escaped Trumpism and its false narratives. A second run of this machine is on the horizon. If that government gets entrenched, their notion of free speech will be to celebrate the January 6 insurrectionists and to punish the George Floyd protesters. The leader of that movement admires a dictator — Putin. There is no regulatory free speech slippery slope in Russia. Acknowledging the current Ukrainian war can result in a 15-year jail term. If you are against the government, your reward may be a state-sponsored poisoning.
I’ll take my chances with our democracy doing its best on regulating the worst excesses of Twitter, You Tube, and Facebook.
Some of the most important critical questions on regulation of speech (expression, etc.) to my mind are:
1) Who will the regulators be?
2) What principles will they adopt?
3) What are the sanctions they will be allowed to impose?
4) What can one do to replace, sanction, etc. the regulators?
5) What procedures will exist for appeal?
6) What will be the burden on smaller organizations which do not have the deep pockets of (e.g.) Facebook?
7) In the US context, at least, there is also detailed and clear case law on matters like “compelled speech”, what counts as an imminent threat, etc. that are also well understood, at least by lawyers. Informal students like me finally think they understand the latter, especially, which is often misunderstood. In any case, the Canadian context is much vaguer, and much more subject to the “peace, order and good government” and “necessity and proportionality” and other general principles that are more flexible but also harder to understand.
All of these are very much lacking in many proposals, unfortunately. I especially find 6) to be missing. Online moderation that enforces one’s own policies (for example) is bad enough and hard enough to do sometimes. But if one has to then also literally police one’s content – many organizations may find they cannot afford it and shut their doors (so to say) altogether – turning Internet into broadcast rather than many-cast. Is this likely? It all depends on the details.
You’re bang on about the awesome power of the internet, which the public has not yet come to grips with after half a century. I remember a Political Science 101 professor who explained that democracy requires discrete controls over civil liberties, distinguishing between liberty and license, such that the fox doesn’t run off with all the hens. In times of crisis, it is reasonable for governments to TEMPORARILY rein in civil liberties and personal freedoms, he claimed.