The First Amendment and toxic speech
Free speech, eye bleach, overreach, lies
Ask the serpent from Genesis chapter 3 about free speech. The serpent didn’t really lie to Eve. He told her the truth, minus the consequences. She and her husband found out the hard part themselves. God allowed the serpent to speak, so we now know God is also a “free speech absolutist.”
We also know, as Rochefoucauld famously wrote, that hypocrisy is the tribute vice pays to virtue. That means the harder society tries to preserve truth and free speech at the same time, the harder the lies fly from the hucksters and serpents, straight into the waiting ears of the gullible and willing.
If American democracy has cornerstones, freedom of speech is likely the chief among them, right up there with the rule of law and the peaceful transfer of executive power. It shouldn’t surprise anyone that too much free speech is poisonous, just like no free speech is tyranny. However, it’s a rich irony that the abuse of free speech is now a dangerous threat to the same democracy. Our Constitution doesn’t really give us many options for moderating free speech—it is a right enshrined into the document and our laws. Therefore, the abuse of free speech is a difficult problem for Americans.
Yet here we are, trying to figure it out. But first, some history, because we need to understand that free speech like we enjoy today is actually a pretty modern concept.
Going back to Rome (because guys always go back to Rome), the government employed lictors, whose primary job was to dissuade the public from insulting, or otherwise threatening, magistrates and other high officials. Lictors carried fasces with axe heads attached, demonstrating the power of execution on demand. Inside the city limits of Rome, where axes were generally forbidden, lictors working for the Dictator were permitted to keep their axes affixed. Free speech was only really free to those with the authority to take life. Incidentally, the word “fasces” shares the same root word as “fascist” and the axe was an early fascist symbol.
A little free speech is a good thing and can be incredibly powerful, especially in places where free speech has not existed.
Authoritarian governments have toppled due to the failure of the state to keep the people from assembling and protesting. The “Velvet Revolution” in Prague overthrew communism during a two-week period, in November 1989, using nothing but free speech and assembly in defiance of the government. In 1980, the “Solidarity” movement in Poland led to national strikes and mass protests. Membership in the union grew to 10 million in just weeks when the communist government legalized it in September 1980. Despite imposing martial law in December 1981, the communists were doomed by the bright light and fresh air of free speech.
Authoritarians realize that the pen can be mightier than the sword and take precautions. In Thailand, today, you can still be arrested, tried, and jailed for the crime of lèse-majesté, or insulting the king. In Russia, you’re likely to involuntarily throw yourself out of a high window for saying too much. In communist China, speaking out too much or posting things on social media that the government doesn’t like can vanish you from the face of the earth.
America is different; you can say whatever you want. We are suffering from free speech toxicity, brought about by too much of a good thing.
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Our nation was founded on the idea that people should be able to speak freely, criticize or protest the government, and assemble to air their grievances, with the right of free association central to the republic. It’s actually hard work to maintain free speech, because the nature of this freedom is to protect speech that’s insulting, distasteful, grotesque, and disagreeable. Free speech isn’t free if the majority gets to decide what’s allowed, so the limits—if any—on citizens to assemble, speak, and meet, must be extremely important and examined with the highest bar of proof for the government.
In recent years, freedom of speech has been under attack from both sides of our American political spectrum. From Gov. Ron DeSantis’s assaults on the speech of political opponents to the Biden Administration’s intimidation of social media companies, as they attempt to combat the problem of fake news and conspiracy theories, and the viewpoint discrimination advanced by progressives, it is apparent that neither of our political parties is fully committed to free speech, at least not when it comes to speech they don’t like—which, as we wrote above, is the essence of our freedom.
Fortunately, the courts have mostly held the line against these sorts of illiberal government actions. Over time, our system has worked pretty well. Yes, there have been historical abuses, but we usually make corrections, although sometimes a bit late. An infamous example is the political dissidents who spent years in prison for speech that the Woodrow Wilson Administration didn’t favor.
Some important caveats: Americans’ right to free speech doesn’t extend to private (and also many commercial) relationships. Free association also means the right of people to not associate, assemble, or speak to those they choose to avoid. This is distinctly different from commercial activity—the right to not associate doesn’t apply to the government’s ability to regulate commerce, and to whom, when, and what a seller can sell, or limit who can buy. So the government can say “Don’t discriminate on the basis of gender or skin color” to businesses that serve the public. But it can’t say “You must invite people you detest to dinner at your home,” or “You must listen to speech you find offensive.” People have the right to say what they want, but you don’t have the obligation to listen or pay attention.
Inevitably, along with free speech and assembly, come a whole raft of undesirable, yet protected, ideas and conspiracies that don’t deserve our time or attention. Yet they persist because people believe some really crazy stuff. Over time, these conspiracies have evolved in their reach and methods. Sunlight may be the best disinfectant, but the depth and breadth of the darkness is great enough that some people never see the light, or worse, they choose to reject the light and remain in darkness.
For example, take the granddaddies of myths in the last 70 or so years: The Kennedy assassination. The moon landing hoax. And the ancestor of them all: the flat earth (if you believe that, then there’s literally no hope for your mind to re-integrate into reality). Originally, these conspiracy theories were propagated through chain letters, newsletters among the “core” group, meetings, and sometimes inquiring radio late-night talk show hosts. Steve remembers back in the day, as a teen, listening to Paul Benzaquin on WBZ AM radio in Boston as he discussed all kinds of topics, including the flat earth people, while David recalls Art Bell’s oh-dark-thirty parade of freaky subjects. It was quite amusing at the time.
Then talk radio got political. Rush Limbaugh coined the phrase “drive-by media,” meaning liberal media that offered a hot-take on whatever news, curated to mirror their own personal political beliefs and friends. It’s not hard to uncover the bias if you pay attention, but the wide audience of most pre-Internet mass media kept the news runners from going too far into their own predilections. The death of the FCC’s “equal time rule” meant AM radio could be ruled by force of personality, and Rush filled that space uniquely.
Rising simultaneously with political talk radio was the phenomenon of 24-hour cable news. CNN was first. Without competition, the network could focus on hard news and offer just enough opinion to keep things interesting. With a wide audience, it had the same limitations as the other mainstream media. Then came competition in Fox News and MSNBC; the sheer number of content hours available exceeded the demand for 24-hour hard news and the supply of news to fill the time. So opinion and “infotainment” began to rise in the battle for viewers. Hot takes began to overrun reporting.
Finally, there was the Internet. The entire news industry embraced the Internet as fiercely as a man with a mistress, afraid to lose her to other suitors. But that soon turned into a “click war,” for views and novel ways to reach eyeballs. Instead of just an archive of news stories run over the cable networks, newspapers, or talk radio, it became its own source of breaking news. Matt Drudge’s breaking of the Lewinsky affair was a watershed moment for the humble “bloggers” and made them a force with significant influence.
The internet also brought the removal of gatekeepers. Anyone with a computer and internet connection had an unlimited megaphone. Both of us have experience working for “news” outlets with no editorial control whatsoever. At many startup “news” sites, especially those that embrace a partisan slant, writers can publish anything…and they often do. These unverified, exaggerated, misunderstood, or outright fabricated stories are often given as much weight and credibility as mainstream media outlets with editors and fact-checkers. This is the genesis of the real “fake news.” Even mainstream outlets have sacrificed long-held journalistic practices in the rush to get a story out before it’s scooped by bloggers.
Traditionally, the antidote for toxic speech has been more speech. In the internet age, when liars and conspiracy mongers can have a greater reach than truth-tellers, that solution no longer seems sufficient.
We have long agreed that free speech includes the right to lie and spout falsehoods, but it does not include the right to a platform or a megaphone. It is reasonable and constitutional for social media platforms to throttle or ban accounts that violate their terms of service. It is also reasonable for government representatives to call attention to false, misleading, and violence-inducing posts as long as it does not coerce platforms into removing these messages.
In some cases, social media companies have gone too far or have engaged in one-sided enforcement of the rules. As private companies, that is their right. Social media companies are not common carriers, as some claim, but have been specifically granted the right to moderate content on their sites as they see fit. Still, social media platforms should be transparent and consistent in their application of the rules (we know that isn’t really the case).
Today, however, the problem is no longer excessive moderation, but insufficient limitations on posts that are toxic and lead to actual harm. As Mark Twain is credited with saying, “A lie can travel halfway around the world before the truth can get its boots on.”
That statement has never been more true than in the internet age. Today, we can watch in real time as lies go viral and spread around the country and the world.
As lies go, the flat earth conspiracy is pretty harmless. Others cost lives. Two of the biggest lies of recent years are the lies about the Coronavirus vaccines and the 2020 election. Both of these lies have literally gotten people killed. Deaths related to anti-vax conspiracy theories probably number in the tens of thousands as a low estimate.
Lying for fun and profit on the internet has become a major industry. For one example, TikTok is a major source of pro-Chinese and anti-semitic propaganda. The near-ubiquitous app must be considered to be a mouthpiece for China’s communist government, which controls the company that developed it. While it may not fund Chinese communism, TikTok provides the CCP with a window through which it can both surveil and also influence American thought and politics.
A second example is Elon Musk and the X platform, formerly known as Twitter. Musk, a self-described “free speech absolutist,” bought the company just over a year ago in October 2022 and has proceeded to run it, business-wise, into the ground. Musk seems to not be able to find a conspiracy theory that he doesn’t feel the need to amplify, and has restored some of the worst accounts on the internet such as Alex Jones, Tucker Carlson, and of course, Donald Trump.
Twitter’s shift from high moderation to essentially no consistent standards illustrates how quickly internet sites become cesspools if administrators take a hands-off approach (or, as in Musk’s case, actively court the crazies). It’s a modern, technological retelling of “The Lord of the Flies.”
Let’s look at one conversation on Threads, Meta’s microblog service that looks very much like X. We will start with Ben Dreyfuss:
This is a serious question since it’s been a few months: did Threadz fall victim to the Great and Terrible Zionists vs Left Wing Palestinian Supporters Discourse War too? Twitter has just been everyone getting so mad at each other that it’s been a negative polarization cycle for two straight months.
And the reply from Yair Rosenberg, who writes for the Atlantic about Jewish things and Israel:
Blocking and hiding incendiary stuff does wonders. You just have much more ability to curate the conversation here than you do over there. Don't underestimate the satisfaction of restricting some bonkers user so that no one can see their comments but they don't know it and so continue shouting pointlessly into the void. It's basically a public service since they waste their time doing that instead of anything else.
Getting idiots to yell into the void (or scream at the sky) is a good way to allow them to vent their frustrations while giving them no audience for their terrible ideas. But when someone is listening, or forming plans from that kind of poison, that’s a different story.
As a society, it should be easy to see the danger that unfettered free speech can bring. The misinformation that spreads so easily in the absence of editorial gatekeepers allowed a deadly virus to spread unchecked, spurred devotees of a failed president to attack the Capitol, and now is affecting the outcome of two wars.
The question is what to do about it without diminishing our constitutional guarantee of no government control of speech. How do we get the right amount of free speech, without having to use eye bleach?
To start with, we should recognize that there are already government limits on free speech. There are laws against slander, libel, and incitement. As the old saw goes, there is no freedom to yell “Fire!” in a crowded theater… unless of course, there really is a fire.
Truth is the best defense for speech crimes. But as Pilate asked, “What is truth?”
And who should be the referee of what is true? Given both parties’ penchant for self-delusion, we are not comfortable with putting partisans of either side in a position to be the arbiter of what is true. We have seen the messes created by biased “fact checkers” used by both sides across our political chasm.
A better solution might be to either voluntarily or through statute create an objective body that would arbitrate disputes about internet content and bans. A model might be based on the Motion Picture Association that gives films their ratings. The organization could act similarly to the volunteers that provide contextual Community Notes on misleading Twitter posts, one of Musk’s best ideas. But even the movie business is highly political, and the ratings handed out for movies can be influenced by all kinds of bias.
The problem is that the mega-industry of grifters that thrives on deceit and lies will resist any reforms that limit their ability to get clicks and access the wallets of the gullible and disenchanted. As always, following the money leads to the serpents and liars.
We should cheer giant verdicts like the one handed down in Georgia against Rudy Giuliani, whose lies threatened the lives of two Fulton County election workers. Is $150 million enough? It’s not really about the amount, it’s about deterrence. Or the $900+ million paid by Fox News to Dominion Voting Systems, which knocked Tucker Carlson off the air and onto X, where he’s lauded by Musk. We should not let Alex Jones off the hook for his $1.5 billion judgment for the families of slain children he tortured with his slander.
We should not let Donald Trump raise money off his lies and his many indictments. In October, the Trump grift campaign announced it had raised $45.5 million in the three months from July through October, cashing in on his Fulton County mugshot. By the end of 2023, it’s likely Trump will have poured over $150 million into his coffers and paid at least that amount in legal fees and other expenses.
The courts and judges are having trouble controlling what Trump is allowed to say—gag orders have been ineffective, even when they’re upheld. But the government—Congress—does have authority to change election laws, making it harder for a candidate like Trump to raise funds. Perhaps a ban or limit on fundraising if the candidate plans on spending the cash for legal fees should be introduced in Congress, though there’s little appetite for either side to pass it (Joe Biden has his own legal fees but has not established a legal defense fund).
And maybe we should revisit laws and precedents for slander, libel, and incitement while we are at it. Rather than having the government hold liars and figurative bomb throwers accountable, give those who are wronged by barbed and pointed words more tools to go after liars and provocateurs in the courts. Let juries be the arbiters of truth.
The best way to deter the kind of poisonous speech such as spewed by Trump and his remora is to sue them into dust and reap the judgments handed down by juries. Hit them where it hurts: In the bank account.
But that won’t solve the biggest problem: When lies foment insurrection, riots, and violence. Free speech notwithstanding, when liars goad their followers into committing violence on their behalf, the instigators need to be held accountable just as the patsies who carry out their bidding.