Online Free Speech: How Free Speech Dies in the Age of Voluntary Agreements, Lawsuits, and Self-Censoring
Free speech is under attack, from both inside and outside of the online community.
While newspapers and other printed media outlets have witnessed drastic drops in subscriptions, online forums have increased in popularity. Social media sites like Facebook, Twitter, Instagram, and others have become the primary ways people disseminate news and opinions. They occupy the space today that newspapers did a hundred years ago.
The fight to preserve these online forums as spaces free from government regulation and spaces dedicated to the free exchange of opinions and ideas is an imperative. That imperative, which is consistent with the U.S. Constitution’s First Amendment, is under assault. People are using the court system to attack Twitter and Facebook. YouTube uses a voluntary program to remove content some people deem to be “offensive.” Social media companies have voluntarily decided to censor speech in Europe.
Federal law insulates Internet services like Google, Yelp, Facebook, and Twitter from lawsuits filed by those offended by online speech. This federal law, section 230 of the Communications Decency Act, prohibits someone from suing social media sites, like Facebook and Twitter, for defamation and other speech related “offenses.” This does not prevent, though, someone who has been harmed from suing the person, or entity, who posted the offending statement.
If Jane, for example, posted on Facebook, that “Dick is a poor runner. In fact the only reason he ran was to avoid getting caught for shoplifting. Dick is a real thief,” Dick would not be able to sue Facebook. He would, though, still be able to sue Jane for defamation.
This type of scenario is playing out in real life. The cases where plaintiffs are trying to bypass Section 230 represent real threats to the integrity of online free speech. The victims of terrorist attacks in Jordan are suing Twitter, claiming the company provided material aid to ISIS. A federal court in California dismissed the suit twice, claiming the plaintiffs failed to overcome Section 230’s protections by failing to articulate how Twitter materially aided ISIS. The plaintiffs, though, have amended their lawsuit yet again, arguing that Twitter’s direct message function provides that material aid.
A second category of cases tries to circumvent Section 230 entirely. In this category of cases, companies or individuals that have been reviewed negatively hire reputation defenders. According to Public Citizen and the Volokh Conspiracy, at least one of these reputation defense companies files suit for defamation in court against a straw defendant with the same, or similar, name as the reviewer. The reputation defender obtains a default judgment with an order from the court demanding sites like Yelp and Google delete the negative review.
There is also a group of individuals who believe social media sites are discriminating against them on the basis of their opinions. At least one of these individuals has filed suit, trying to “knock out” Section 230. In her own words, she wants to “knock out [section 230], and then [ ] sue Facebook, Twitter, and YouTube,” ostensibly for viewpoint discrimination.
Section 230 is under assault; it provides the foundational freedom for online services to operate as quasi-public forums. This does not mean the services are public forums. Instead, they are private companies, the business models of which rely on users for content creation. As private companies, Facebook, Twitter, and others have terms of service—they have contracts. Users are responsible for reading the terms of service and complying with them. When users violate the terms of service, companies are within their rights to remove content or ban them.
Those terms of service, and voluntary efforts social media companies are engaged in, though, may diminish free speech in this country. One of these voluntary efforts is primarily in effect in Europe, but could see the light of day in the United States. The other voluntary effort impacts content in the United States.
Most of the social media giants—Facebook, Twitter, YouTube and Microsoft—have reached an agreement with the European regulators to remove “hate speech,” which the agreement defines as
“all conduct publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour [sic], religion, descent or national or ethnic origin.”
The agreement permits anyone to complain about hate speech, and then places a burden on the companies to “take quick action as soon as a valid notification is received.”
Hate speech in Europe, as a concept, is drastically different than what Americans understand it to be. Most European countries signed the International Covenant on Civil and Political Rights along with the European Convention on Human Rights. Both these conventions require countries to enact laws protecting “the reputation and rights of others.” The conventions also require all signatories to outlaw “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence.” In other words, hate speech in Europe is virtually anything a group of people can find offensive. This broad definition has been used to prosecute pastors for criticizing certain lifestyles. It has resulted in the arrest of artists, poets and others.
While such strict censorship is not yet pervasive in the United States, some social media companies are laying the groundwork for self-imposed censorship.
A new program launched by YouTube, called “YouTube Heroes” promises to empower opponents of Free Speech. So called “Heroes” will be able to moderate content by deleting comments and adding captions or subtitles to videos. YouTube also promises more tools, such as mass flagging, all in an effort to help create “safe spaces” within the platform.
YouTube has a history, too, with perceived censorship. From its earliest days, it recognized the tendency of people to record vile behavior, and then post it online. The company started hiring people responsible for guarding against the worst of what may be posted. But this project placed into the hands of a relatively few people, and with relatively little guidance, the responsibility of maintaining the Internet as a Free Speech zone.
Google, through YouTube, is not the only social media company with a problem with perceived censorship. Earlier this year, various outlets accused Facebook of suppressing conservative news. This suppression appears to have resulted more from the implicit biases of Facebook’s curatorial staff than a deliberate, company-wide effort. To censor speech, curatorial or “protective” programs do not need to be aimed at suppressing free speech, but need merely to be staffed with employees having a particular bias, who view their roles as nannies of the web rather than bulwarks for Free Speech.
Combine the social media companies’ willingness to self-censor in Europe with the lawsuits filed against them in this country, and it is easy to see how they could start regulating free speech through voluntary agreements despite the First Amendment.
Social media companies are private actors. That is to say, they are not acting on behalf of the government. Twitter, for example, could enter a settlement agreement with the plaintiffs in one of the cases previously described. As part of this settlement agreement, Twitter could agree to remove all posts about Islam, including any promotion or criticism of radical Islamic terrorism. If such an agreement were reached, other offended groups could sue, with the ultimate aim of obtaining a similar settlement agreement.
Ultimately, this is how Free Speech dies—little by little. It dies when people attack the principle from the outside for their own gain. It dies when organizations holding themselves out as public forums slowly limit their users’ rights. It dies when we are not vigilant in protecting this first, and fundamental, right.