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What is the value of free speech? What is its purpose? What’s the point? Being able to say whatever the heck you want? Is that the only possible interpretation of free speech? I’ve been trying to reach you about your free speech’s extended warranty…
The classic (and debunked) definition of the limit’s on free speech is saying “fire” in a crowded theater. The Atlantic has a fair breakdown of the legal pedigree of that saying. The gist of it is that the saying resulted as an ancillary example during the case of U.S. v Schenck around the first World War. While the main argument was that the pamphlets Charles Schenk was distributing represented a “clear and present danger,” to the US during wartime, a case that would eventually be overturned in 1969 thanks to Brandenburg v. Ohio, the dictum issued by Justice Oliver Wendell Holmes was in a sense a non-sequitur, and therefore, a non-binding analogy that had no determination in that particular legal case.
Brandenburg v. Ohio established that inflammatory speech – in this instance a speech advocating violence by members of the KKK, was still protected under the Constitution, “unless the speech ‘is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'” This legal framework is the field upon which we play today, but that precedent is under attack by non-government agencies at the behest of those who would stifle the speech of their opposition.
Prior to January 6th, tech companies employed algorithms to “filter” and “moderate” content seen by the average viewer. Based upon that individual’s search patterns, companies like Facebook, Twitter, Instagram, Google, Apple, Microsoft, and any other search engine would aggregate the interests of the user and create a profile, which would be fed to the algorithms, and would create targeted feeds to keep the user’s interest. This unadulterated formula would give the people what they wanted. In a perfect world, nothing would be done, and each user would have the internet they desired. But the tech companies, founded by folks with a collectivist, utopian, and progressive thought-process, wanted to make the internet “better.” Looking at the algorithms, they discovered that certain emotional responses, combined with a gambling type layout of points and rankings, garnered the longest engagement times. Add a dash of inflammatory taglines, and you get even more engagements.
However, the problem worked both ways. The idea that “bad” speech should be combated by “more” speech in the free market of ideas was never at the forefront of the tech companies. Some were the true believer types, interested in pushing the cause of “progressivism,” seeking a utopian society that they, of course, would rule from on high. They believed themselves to be the superior ones, able to see past the petty notions of “individualism,” “nationalism,” and “liberty.” These ideas to them were divisive, and would lead to conflict. So ancillary notions, like “free speech,” were not an inalienable right, but rather, a problem to solve. Others were corporatists at heart, seeking the betterment of the company’s bottom line. “Freedom,” “liberty,” and the First Amendment weren’t a problem to them, but rather an obstacle that needed to be worked around or hurdled.
So what is the solution? It was rather simple, and from an objective point of view, rather ingenious. Instead of banning speech in a blatant bid for censorship, these companies, along with publishers, distributors, and media companies, all opted to exercise their “right to choose.” Instead of allowing all points of view to exist and have people fight it out in the free marketplace of ideas, they opted to define their point of view, using their terms of service and community guidelines. Rather than kicking someone out for using speech that they didn’t like, or that they would find “offensive” and “unpopular,” they would slowly shift their terms of service to screen out the undesirables, leaving their perfectly manicured utopian enclave of like-minded people, ignorant of the opinions that they screened out.
I reiterate my opening question, what is free speech? The ability to say what you wish to say freely, without facing the wrath of the government, is meaningless if you have no effective space in which to use it. The tech companies have become proxies for the government, their terms of service the new Constitutions by which we must abide, without representation and without remedy should those ever-shifting terms be violated. If we’re not allowed to post even the most cringe-worthy or inflammatory things online, do we still have free speech? If we are not able to have our notions, whether true or not, challenged in the public square, are we better or worse off for it? If our free speech exists only in our own minds, are we really even free?
My argument is that without meaningful free speech, we have nothing. The tech companies are acting as government agencies, and in the areas that they interact with our freedoms, should be likewise restrained by the Constitution. Platforms like Twitter, Facebook, Parler, Instagram, Gab, Minds, and any other social media network must abide by the same legal standing that the Federal Government is bound by. Only then can we truly say our speech is free.
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