The New York Review of Books Follows My Lead

Or, at least, it should.

My recent post about free speech found a much bigger audience than I was expecting. On Reddit, it attracted over 118,000 views and provoked more than 100 comments.

The New York Review of Books (21 March 2024) features a review by David Cole titled “Who Should Regulate Online Speech?” The detectives among you might notice that it was originally published online on the 23rd of February, two days after I published my post on the topic.

Coincidence? Maybe. But I prefer to think that Cosy Moments is setting the agenda in New York.  

Mr Cole’s article is a review of Social Media, Freedom of Speech and the Future of Our Democracy, a collection of essays edited by First Amendment scholars Lee C. Bollinger and Geoffrey R. Stone, which came out in 2022. The “our” in the title refers to the freedom-loving citizens of the United States of America, who fought a revolutionary war against the Hanoverians, the British, and the idea of hereditary privilege. Should I point out that the book is published by Oxford University Press and has four contributors with the same last name? No, it’s probably another coincidence.

Mr Cole’s review keeps the America-centred focus of the book: he opens by asking, “is the First Amendment obsolete in the age of TikTok?” Even though free speech presents moral and legal questions (which aren’t always the same) it’s perfectly reasonable to start with some legal protection (such as the First Amendment) and then ask what, if anything, could justify it. The problem, though, is that this can narrow the debate, as is it does here. Social media and freedom of speech are hardly problems unique to the United States, and a book as long as this one — it’s over 400 pages and quite repetitive — could benefit from a more international outlook. Globally, people like Mr Cole, who champion the First Amendment and are wary of “government-imposed content moderation” (his words) are rare. The Digital Services Act in the European Union and the Online Safety Bill in the UK will be heavy burdens on social media companies. Why aren’t they discussed in Mr Cole’s review?

The book itself does mention the Digital Services Act (the Online Safety Bill is relegated to the endnotes) but some contributors don’t seem to be paying attention to events outside the US. One chapter, comparing the internet to newspapers, praises the accessibility and permanence of the web. But there is a downside:

Take defamation as an example. Imagine before the internet that a local newspaper published false information about a person that harmed his or her reputation. The falsity would be known by readers of the paper and could be circulated by word of mouth. There could be great harm to the person’s reputation. But the newspaper itself would largely disappear except to those wanting to search for it on microfilm or microfiche.

Now, though, the defamatory story can be quickly spread across the internet and likely will be there to be found forever. It is enormously difficult, if not impossible, to erase something from the internet.

Maybe that’s true in the US, but in 2014 the European Court of Justice recognised a “right to be forgotten” whereby search engines must remove links to truthful but irrelevant information that might harm somebody. If privacy is to exist at all, then even true statements about people must be subject to regulation. This is crucial because social media have all but erased the distinction between domestic gossip and public debate.

Presumably, Mr Cole objects to such legislation. He writes that “empowering government to impose the rules is a treatment likely worse than the disease,” continuing:

No one other than Elon Musk and Mark Zuckerberg likes the fact that they exercise so much power over what we see on X, Facebook, and Instagram, but what is the alternative? Would we be happier with government officials (Donald Trump, Ron DeSantis, Gavin Newsom, Betsy DeVos, Bernie Sanders) making those decisions? And if we want to see posts we are interested in and not see those that are a waste of time or worse, someone has to curate them. Content moderation by private social media platforms, then, is a little bit like democracy: the worst system of governance, apart from all the alternatives.

This might sound convincing, but rhetorical questions and a modified aphorism don’t add up to an argument. Again, the “we” seems to mean “liberal Americans with orthodox interpretations of the First Amendment,” but even this group might see that government officials can at least be voted out if they displease the public. Social media oligarchs are accountable only to their shareholders and often disavow their decisions while blaming the “algorithms.” Yes, government abuse is a problem, but so is the huge market power that tech companies brandish to advance their own interests at the expense of the public. Without government regulation, these tech companies can bury the links to their competitors. This is probably why they so often affirm their commitment to free speech and the First Amendment.

As Mary Anne Franks puts it in the book under review, the problem with limiting how and when online media companies can be held accountable for the actions of their users is that:

It incentivizes tech companies … to leave up, boost, and even solicit content that causes foreseeable, measurable harm because they will not bear the costs for it. When it comes to private actors, passivity toward or complicity with harmful speech is neither an obligation nor a virtue. The tech industry should not be rewarded for turning a blind eye to conduct that incites violence, invades privacy, or threatens physical health, and certainly not for profiting from it. Such conduct is not only adverse to public welfare; it is adverse to free speech.

Part of what makes Mr Cole’s argument unconvincing is that he doesn’t see a difference between social media and “traditional” media such as newspapers, radio, and television. He states that:

… the First Amendment’s spirit, if not its letter, guides the platforms themselves as they strive to provide an open forum, engaging in as little moderation as necessary to keep the sites useful. The fact that powerful private corporations control much of what we see and hear is nothing new. It’s just that new private entities have entered the field. Social media, like more traditional media, is affirmatively protected by the First Amendment, and as a practical matter the platforms are critical to ensuring that we actually have something approximating what the Supreme Court in New York Times v. Sullivan described as “uninhibited, robust, and wide-open” debate.

There are some similarities but also some differences: the editorial decisions of traditional media aren’t affected by algorithms (and there’s no single widely accepted definition of an algorithm.) And does anyone think that social media occupy the same cultural space as traditional media? Clearly not. To give only one example, social media harvest your personal information, making it a commodity as well as political data. When comparing social and traditional media, one must ask which similarities are the ones that matter from a free speech perspective. Applying the First Amendment to all media begs the question.

Mr Cole ends his piece by supporting the First Amendment protections for social media:

It’s messy. It’s far from ideal. It will sometimes mean that people are exposed to communication that deeply offends them, and that some voices and messages will get more amplification than others. But that is the price of freedom—now as much as it was in James Madison’s day.

The price of freedom? Where have I heard that before?

In 2014, Fredrick Brennan, the creator of the website 8chan, was asked if child pornography was one of the “inevitable fixtures” of “of hardcore free-speech zones like his website.”

He replied that “it is simply the cost of free speech and being the only active site to not impose more ‘laws’ than those that were passed in Washington, D.C.”

People like Mr Cole value free speech because they see it as essential to a democracy. But social media don’t exist to promote “democracy” or “community” or “engagement.” They exist to make money. They don’t create anything. They manipulate, exploit, and sell “free speech,” no matter what the cost to the public. If good governance and a healthy polity require legal restrictions on tech companies, then those in the land of the free might need to look overseas at countries passing legislation to regulate social media and other websites. In other words, Americans might need to look to the Old World.