Facebook’s CEO Mark Zuckerberg recently called for more stringent Internet privacy and election laws saying, ‘We need a more active role for governments and regulators.’[i] In advocating what amounts to censorship, he seems to have at least awoken to the Promethean beast he has summoned.
It opens a dangerous vista, however, and is hypocritical for Zuckerberg to complain about hate speech, given his company provides a forum for its ventilation, while deriving vast profits off the advertising of post-truth nonsense.
Among the essential features of any democracy is freedom of speech, without which other rights are superfluous. Woven into the fibre of the American character, Anthony Lewis described freedom of speech, which is protected under the First Amendment of the U.S. Constitution, as ‘a search engine for the truth.’[ii] It is also enshrined in various international human rights instruments, albeit generally using more attenuated formulae.
The scope of freedom of speech came before the U.S. Supreme Court in the case of Snyder v Phelps et al in 2011, which concerned the picketing by Westboro Baptist Church at the funerals of U.S. service men and women over the military’s tolerance of homosexuality.
The Supreme Court held that the constitutional guarantees do not permit any State to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy is directed at inciting or producing imminent lawless action, and is likely to incite or produce such action.
In his judgement, Chief Justice Roberts indicated that:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.[iii]
In contrast the European Court of Human Rights will not protect either racist speech or Holocaust denial from prosecution. Similarly, that Court permits the restriction of speech on grounds of public health and morals, or order public. These are, however, malleable concepts easily manipulated by state authoritarianism. It is worth emphasising that it is the speech we most dislike and disagree with that deserves most protection. An appeal to ordre publique involves the demonization and criminalisation of those we disagree with, but our own views could one day suffer the same fate, if we speak out of turn.
My own opinion is enough for me
Central to speech protection is defending the rights of others to speak, even if we disagree with their point of view. In his classic formulation Oscar Wilde said, ‘I may not agree with you, but I will defend to the death your right to make an ass of yourself.’
In latter times the late Christopher Hitchens’s robustness verged on arrogance:
My own opinion is enough for me, and I claim the right to have it defended against any consensus, any majority, anywhere, any place, any time. And anyone who disagrees with this can pick a number, get in line, and kiss my ass.
However rudely expressed, Hitchens was attesting to the importance of argument and rational disputation in an increasingly degraded intellectual climate.
Far earlier, Francis Bacon famously equated knowledge with power; although we should be cognisant of Michel Foucault’s qualification that power determines what counts as knowledge. Thus, speech imparts knowledge, but vested interests determine and condition the parameters of acceptable discourse.
Elsewhere, the great Ronald Dworkin went further, arguing that ‘free speech is a condition of legitimate government.’ He indicated that the universality of speech as a mode of rational discourse and scientific inquiry could act as truth-seeking counterweight to mass hysteria, negating unreason and prejudice.[iv] Moreover, Stephen Sedley, the great English judge, called it ‘the lifeblood of democracy.[v]
Speech and words matter, as Orwell trenchantly put it: ‘If liberty means anything at all, it means the right to tell people what they do not want to hear.’
In retrospect Christopher Hitchens seems to have been at the tail end of a freedom of speech tradition beginning with his hero Thomas Paine, mediated through his other great hero Orwell, and culminating in his own rich tapestry of public utterances. His final collection of essays, and summation, is entitled Arguably, which is, arguably, the most important concept to defend – producing a discourse shaped by rational argument.
In an increasingly controlled and technocratic age, fearless independent criticism is being expurgated. The press is controlled by vested corporate interests, and often, in offering ‘balanced’ coverage, editors grant credibility to pure nonsense. There are two sides to every story: Creationism or Darwinism, take your pick.
Social Media solipsism has leached into the popular press at a time when the appropriate ambit of the freedom of speech proves ever more difficult to define. In this New World Order of endless Internet chatter, character assassination, simplifications and casual defamation are the order of the day.
The Internet may ultimately prove a force for liberation, but it puts on public display ever more bizarre and outlandish commentaries, often implanted via sinister advertising. This cultural degradation is picked up by social media, which offers a forum for uninhibited cant. Zuckerberg is intervening belatedly, and to save his skin.
The consequence are the belittling of politics and intellectual discourse – just compare the quality of the Clinton-Trump debates to those of an earlier epoch, such as Kennedy-Nixon. Similarly, the Brexit debates are conducted in a manner reminiscent of the Lord of the Flies, as opposed to the elevated Parliamentary debates preceding the decision to enter World War II.
Richard McKay Rorty’s observations about language having a fluid structure, which alters over time, is insightful, but can slide into abject moral relativism. The Post-Modernist argument has, in certain respects, been appropriated by the Far Right, who insist that truth is not truth, and that humans have nothing to do with climate change.
What we are seeing is a free-for-all where all opinions are equal. Aneurin Bevin, as great an orator as Churchill, once remarked to the House of Commons that listening to a speech from Labour Prime Minister Clement Atlee was, ‘like paying a visit to Woolworths: everything was in its place, but nothing was above the value of sixpence.’ Thus, to be taken seriously, one must actually have something to say.
Great speeches should have content, while any speaker should not get carried away by his rhetoric, which often serves propagandistic purposes. This sound-bite-generation might do well to follow the cautionary words of Wittgenstein that whereof one cannot speak thereof one must be silent.[vi] So respect for freedom of speech should not devolve to giving every clown a stage on which to perform.
Whether freedom of speech protects jihadi websites handing down fatwas or exhibiting pornographic beheadings is often up for debate. Less commonly do we hear questions around protecting the population from the sponsored blathering of Trump, the Clintons or Goldman Sachs; or whether freedom of speech extends to protecting the nonsense emerging out of Fox News, which often controls the political narrative. In short, it is pie in the proverbial Sky News to argue that no credence or weight, or indeed audience, should be given to the Neo-Cons or Religious Rights, since they own many of the networks and set the agendas.
This brings us to the vexed question of whether freedom of speech should be used to protect Internet providers. We know freedom of speech vitalises any democracy, but arguments in its favour may be deployed for nefarious ideological ends, where politically motivated advertisers frame political narratives. When Facebook accepts remuneration from political parties and online publishers in exchange for ‘boosting’ posts there is an implicit endorsement.
In 2010, while acting as CEO, Eric Schmidt famously let slip that Google needed to secure its ‘borders’ before correcting himself to say ‘networks’,[vii] but the implication is clear that Google, and other corporations such as Facebook, act as Superpowers, which transcend national sovereignty. They then deliberately conflate freedom of speech assertions with the selling of products.
Far less protection should be extended to commercial free speech, or the so-called freedom of the Internet, where big beasts spy and target you with advertising. Mark Zuckerberg’s call for the regulation of the Internet in fact opens an appalling vista of social control. Clearly his corporate interests are threatened by a veritable shitstorm of abuse, and never mind that Facebook has been used to manipulate voter sentiments.
Ultimately it is up to constitutional courts, not Zuckerberg, to define the parameters of privacy. Given the storm he has unleashed, there is no way that he should be handed the role of policeman.
I fear the information we receive from his organisation, among others, is turning us into passive nodal receptors, and permitting artificial intelligence to rewire human identity. This descends into the inevitable containment of speech, suppressing that which can be said, and even that which can be thought before it is mentioned. Or, to quote the title of a novel by Samuel Beckett, Ill Seen Ill Said.
Moreover, the fluidity of the information superhighway, enables jihadists and other extremists to find one another. This leads Cass Sunstein, the American legal scholar, to argue that the Internet contributes to group polarisation.[viii]
Worryingly, in academia free speech is now often bound by commercial sponsors, such as the Ford Foundation. In this context of academic self-abnegation and outright ass-kissing it is worth recalling the observation of Karl Marx that there is no point, after all, speaking on Hyde Park Corner when you have nothing to eat. Empowering those without a capacity for speech to the extent of your own is a lawyer’s vocation.
Speech and communication allow people to do good and negate bad. An understanding of the nuances and tropes of speech also leads towards untangling disinformation, lies and misrepresentations. Online commercial advertising, which often illegally targets its audiences, cannot draw on the defence of freedom of speech.
Furthermore, there seems little point supressing so-called hate speech, while permitting post-truth circumlocutions and psycho-babble to run riot. Nonsense deserves no protection, and Mr Zuckerberg is the last person we should entrust with regulating this.
[i] Spencer Kimball, ‘Zuckerberg backs stronger Internet privacy and election laws: ‘We need a more active role for governments’, March 30th, 2019, CNBC, https://www.cnbc.com/2019/03/30/mark-zuckerberg-calls-for-tighter-internet-regulations-we-need-a-more-active-role-for-governments.html, accessed 10/4/19.
[ii] Anthony Lewis, Freedom for the Thought we Hate – A Biography of the First Amendment, New York, Basic Books, 2010.
[iii] Snyder v Phelps 562 U.S. 443 (2011), https://supreme.justia.com/cases/federal/us/562/443/, accessed 26/4/19.
[iv] Ronald Dworkin ‘The Right to Ridicule’, March 23rd, 2006, The New York Review of Books, https://www.nybooks.com/articles/2006/03/23/the-right-to-ridicule/, accessed 26/4/19.
[v] Stephen Sedley, Law and the Whirligig of Time, London, Hart Publishing, 2018.
[vi] Ludwig Wittgenstein, Tractaus Logico Philoophicus, London, Keegan Paul, 1922.
[vii] The Editorial Board, ‘There May Soon Be Three Internets. America’s Won’t Necessarily Be the Best.’, October 15th, 2018, The New York Times, https://www.nytimes.com/2018/10/15/opinion/internet-google-china-balkanization.html, accessed 26/4/19.
[viii] Cass Sunstein, ‘The Law of Group Polarization’, University of Chicago Law School, John M. Olin Law & Economics Working Paper No. 91, December 13th, 1999. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=199668, accessed 26/4/19.