Reframing Free Speech
Photo by Edmond Dantès
Freedom of speech is a deeply valued American principle. Enshrined in the First Amendment to our Constitution, free speech is seen by most of us as a fundamental, inalienable right—allowing the expression of personal opinions and ideas without fear of retribution and enabling the democratic process through public debate.
Unfortunately, we no longer seem to have a common understanding of what freedom of speech actually means.
Events in the last few weeks—including banning books, shouting down speakers on college campuses, passing so-called “anti-woke” bills in state legislatures, blocking journalists from social media platforms, and settling an anti-defamation case against Fox News—demonstrate how pressing the topic of free speech remains over 200 years after passing the Bill of Rights.
It makes sense that new technologies, specifically the advent of the internet (which has made any information instantly accessible) and smartphones (which have put that information in the palm of our hands), have provoked the latest debate over free speech. Each technological innovation that accelerates the distribution and consumption of information—printing press, telegram, radio, television, etc.—has raised similar challenges and disputes around the rights, responsibilities, and limitations of free speech.
Unfortunately, many of the debates over free speech are contextual rather than structural. In other words, the debate happens within the context of a particular topic. Too often, that debate predictably results in wanting to ban the free speech we disagree with and unleash the free speech we favor (as is the case in nearly every recent incident mentioned above). Both extremes of our political spectrum exhibit similar hypocrisy on this point—with liberals “canceling” those with differing views, and conservatives “banning” ideas they don’t want to hear. In the face of too much free speech, we’re trying to tune the other side out.
Of course, this is the exact opposite of what freedom of speech was meant to protect.
The very notion of free speech is to expose ourselves to opposing points of view, even ones we may strongly disagree with or even find offensive. If we outright refuse to hear opposing points of view, we lose our ability to understand, compromise, and empathize with others. Free speech is foundational to a functioning democracy.
Of course, the techno-libertarian belief in a completely unfettered ability to say anything you want anywhere and any time has simply never been what freedom of speech has ever meant either. Speech has consequences and public safety, in particular, has always tempered this right—the classic example of yelling “fire” in a crowded theater. As a society, we have always imposed limitations on free speech—particular hate speech and deliberate lies.
In reality, of course, these limitations are rarely enforced, and made evermore difficult by technology. While it has been encouraging to see recent repercussions, specifically within Fox News both around both hate speech and defamation, the idea that even the most egregiously offensive speech can be limited given modern technology is increasingly infeasible. There are always other websites, many operated covertly and offshore, that will allow even more toxic hate speech. There are always other avenues for procuring a banned book. The idea that we can limit free speech by muzzling the speaker is antiquated—applying 20th-century techniques to a 21st-century problem.
And new technologies are only making the problem worse. Fringe groups can and do amplify their message with fake social media accounts. Reposts, comments, and likes are perpetuated by bots. Deep fakes can be used to mimic almost anyone saying practically anything. Seemingly authoritative media outlets can be easily falsified. And generative AI tools will spawn a limitless proliferation of misinformation and propaganda. Further, the complete lack of international boundaries online makes us susceptible to messages from anyone, anywhere in the world. At the end of the day, enforcing limitations on free speech may no longer be impossible.
Given this reality, I believe it is time to reframe the topic of free speech to focus less on the rights of the speaker and more on the rights of the recipient.
Technology and dark money have permitted free speech to be exploited, pummeling us all with more and more information pushing everything from political agendas to purchase decisions. Each of us faces a daily information overload from free speakers. Yet virtually nothing has equipped us as recipients of this constant barrage of messages with an improved ability to evaluate their credibility and make informed decisions.
To me, being an informed recipient of free speech boils down to three fundamental questions:
How reliable is the message? (In other words, is it true?)
How credible is the messenger? (And, increasingly, are they even human?)
Who paid for the message?
Without better transparency on these questions, free speech will continue to be exploited, constructive debate and discourse will continue to diminish, and our belief in truth itself will be further eroded. It’s safe to say that as the First Amendment was drafted in 1789 stating that “Congress shall make no law . . . abridging the freedom of speech, or the press” that they ever could have imagined our current limitless information environment. With the advent of broadcast media, attempts were made to ensure the veracity of information and disclose sources of funding. But those efforts have largely been abandoned in the digital domain. Social media platforms in particular have become a vortex of misinformation and hate speech.
Exactly how we answer the above questions and provide that transparency is a longer topic than I can address in this post. But many good ideas have been proposed—including profile identity verification (basically the exact opposite of Twitter’s recent blue badge disaster), reforming Section 230 of the Communications Decency Act so social media platforms do a better job policing misinformation to avoid liability, political finance reform to require more stringent disclosures and close dark-money loopholes on both sides, and mandating that AI-generated content be explicitly identified.
Whether such initiatives come from the private sector and become de facto standards of online usage or emerge from the public sector as regulatory requirements (or, hopefully, both) doesn’t matter as much to me. But recipient-side tools for processing, understanding, and evaluating free speech are long overdue. Without such safeguards, our political discourse will continue to be dominated by partisan extremes, our willingness and ability to hear opposing views will be even more diminished, and our trust in information itself will be compromised, rendering one of the foundational rights upon which we built our country largely irrelevant.