14 January 2021
What is free speech?
By Lynda Goetz
The discussion has been ongoing for years now, both in Europe and the other side of the Atlantic. The terms ‘free speech’, ‘freedom of speech’ and ‘freedom of expression’ used to be terms educated people felt they understood, but ever since social media has become part of modern-day life the meaning of these terms is unfortunately no longer very clear. The events of this last week in the US have brought the discussion to the fore yet again. Is it right that the tech companies should ban President (thankfully soon not to be) Trump from their platforms or are these decisions ones that should be made by governments and lawmakers? Is it up to billionaire heads of tech companies like Jack Dorsey (Twitter) or Mark Zuckerberg (Facebook) to decide what is and is not acceptable to say and who should be allowed to say it? Is it their right as private companies to decide what their policies are even if that means allowing dreadful things to be shown and said online?
One’s first reaction to the no-platforming of Donald Trump probably depends on how one views the man. He has been banned not only from Twitter and Facebook, but from several other platforms including Tiktok and Snapchat and, on this side of the Atlantic at least, most probably applauded the attempts to stop the man spreading discord and violence. Indeed, it is under their ’glorification of violence’ policy that Twitter has imposed its ban. A further few moments’ thought, however, does raise a lot more questions. Questions which have been in the air ever since the issues of how to regulate the tech companies were first broached a number of years ago. The Sunday Times in a leading article states unequivocally that ‘banning a sitting president from social media platforms is, whichever way you look at, it an assault on free speech’. It also considers this to be a decision they ‘will come to regret.’
In this country, the government plans to introduce a Bill before Parliament at some time this year. It claimed that its Online Harms White Paper published last year would make the UK ‘the safest place in the world to go online and the best place to start and grow a digital business’. Unfortunately, some of the ‘harms’ described are ill-defined and appear to suffer the same lack of proper distinctions between illegality and guidance suffered by the government’s Covid regulations. Whilst some of the harms should indeed be banned, other proposals could lead to an unacceptably authoritarian approach to the problem. In a commentary article in The Telegraph last September, Dr Radomir Tylecote wrote that Human Rights Watch had called on Germany to scrap its own ‘NetzDG’ law on which our government’s proposals were based as it turns ‘private companies into overzealous censors’.
It is this difficult line between government and private company sanction which makes the problem of legislating social media such a tricky one. The Free Speech Union (FSU) has plans of its own to propose simplified legislation ‘to deal with online harms without censoring free speech’, but some believe the Free Speech Union itself to be an unacceptable group based around a right-of-centre orthodoxy. Only a few days ago, The Guardian ran an article about the resignation of members from the Free Speech Youth Advisory Board when they discovered the extent of the involvement of the FSU in the project. Apparently, the student activists imagined that when they were recruited to start a freedom of expression campaign they would be opposing repressive regimes and helping minority voices to get heard. Instead they were upset to find that they were expected to share what they felt was the FSU worldview and one with which they didn’t agree. Perhaps the problem is the difference between ‘freedom of speech’ and ‘freedom of expression’?
In an interesting article on The Heritage Foundation (an American conservative policy think tank) website in April last year, Arthur Milikh described what he saw as the difference between the two. He points out that ‘puzzling as it may sound, it is possible to support freedom of expression while also being hostile to freedom of speech. In fact, the freedom of expression, as understood today, is in conflict with the original purpose of freedom of speech.’ According to Milikh, “The contemporary understanding of expression also deals with the non-rational articulation of emotions and will and, most importantly, assertions of identity. In its fundamental sense, expression means the articulation of self-created identity”. He cites two landmark Supreme Court cases backing up this protection of identity and claims that it is this honouring of identity which silences speech critical of it. He concludes that “the tech giants’ goal is not to safeguard the American freedom of speech. Rather, they want America to conform to their moral assertions about the purpose of speech, at the cost of political liberty and the freedom of the mind”.
So, where does all this leave us? Perhaps, as journalist Tim Stanley says in his commentary piece in The Telegraph, we should just walk away from social media altogether. It appears to bring out the worst in people, whether by virtue signalling or hate speech and abusive behaviour which most wouldn’t indulge in face-to-face, so maybe we should all just ignore it? Well, that would be the best free market approach as it would deprive the tech giants not only of power but of all important revenue as well. Sadly, Tim, I just do not see it happening. Social media with its bad manners and all its associated faults is almost certainly here to stay. Freedom of expression may well be trumping freedom of speech.