Amid social and political upheaval and the proliferation of new media and communications technologies, freedom of speech has been the subject of heated polemics. Should our conception of free speech be rethought? Do current speech norms unfairly empower some groups and silence others?
Unfortunately, much of the time, these debates reflect the mentality summed up more than a quarter-century ago in the title of a book by one of the rare true champions of freedom of speech, the late author Nat Hentoff: “Free Speech for Me, But Not for Thee.”
Take an op-ed in Sunday’s New York Times, dramatically titled “Free Speech Is Killing Us.” Author Andrew Marantz, a writer for The New Yorker, argues that dogmatic free speech absolutism ties our hands when it comes to curbing the deadly danger of internet-fueled extremism. Marantz points to hate-driven massacres whose perpetrators were radicalized online, as well as the social media-driven campaigns of populist demagogues like Donald Trump or the Philippines’ Rodrigo Duterte.
Marantz agrees that “[f]ree speech is a bedrock value in this country” but argues that it must be balanced against “equality, safety and robust democratic participation.” He also asserts that he is not calling for “repealing the First Amendment” or even banning offensive speech from private platforms; he just wants both politicians and the private sector to do something.
For instance, he says, Congress could fund news literacy programs, “build a robust public media,” or create public alternatives to Google and Facebook. Marantz also suggests rethinking Section 230 of the Communications Decency Act, which exempts website owners from legal liability for user-posted content, while urging tech giants to act on their own to curtail speech that can lead to violence.
But such measures would be either cosmetic or damaging. In this climate of polarization and mistrust, it’s very unlikely that government-funded media could make a positive difference. Publicly funded social media platforms would have less ability to ban extreme speech than private ones because of First Amendment protections. And repealing or eviscerating Section 230 would effectively destroy freedom of speech online.
In principle, I have nothing against some speech-policing by private entities such as Google and Twitter. But such measures can also drive hateful content to less visible corners of the internet where it would be harder to monitor. And if measures against hate speech turn into suppression of debate on such thorny issues as hormone therapy for transgender-identifying children, this can inhibit discourse and deepen polarization.
Marantz suggests that our blanket rejection of legal bans on hate speech is outdated. Given evidence that hate speech laws in Europe and elsewhere have been used to suppress legitimate speech on social, religious and political issues, this is a disturbing stance. Yet it is one embraced by more and more mainstream pundits and legal scholars.
This is a dangerous trend, particularly since it is based on inflated perception of danger. While ideological zealotry has become more common, extremism-driven killings remain extremely rare.
Progressives should be wary of handing the government new powers to regulate speech when conservatives control the White House and the Senate and have a commanding presence in the federal courts. Already, some Republicans are trying to launch their own attacks on Section 230 in response to complaints that social media platforms are silencing conservatives. Meanwhile, the Heritage Foundation held a conference on whether the press should be “restrained” with stronger libel laws.
It sounds like we need free speech more than ever.
Cathy Young is a contributing editor to Reason magazine.