Without freedom of speech, true liberty is not possible.
In a tyranny, those in control of the state wield absolute power: power that is opaque, not subject to checks and balances. Censorship concentrates power in the hands of a few, or even of a single person. Communication by the governed can be surveilled, and any calls to change their system of government can be harshly punished.
In such a system, censorship and control go together. Art, culture and science become tools, used by those in power to suppress and control instead of to enlighten. Control over speech allows those in power to erase history; everything that contains words or images can and will become politicized.
It is important that we defend freedom of speech over and over again to prevent tyrannical governments from succeeding in acquiring government power and retaining it unchallenged.
Yet state control is not the only way in which freedom of speech can be lost.
In my own life, I have frequently faced death threats because I have chosen to speak my mind about Islam, the religion in which I was raised but against which I turned. It was not so much governments that sought to silence me, but intolerant individuals and groups who believed they were engaged in a sacred duty. The jihadist who killed Theo van Gogh explained that he would do it again—to me.
It is not enough for governments to say they passively allow free speech. If they do not actively defend it, then the environment is soon restricted to the speech that the least tolerant individuals will allow.
As of 2021, those committed to free speech in the US face a twofold challenge. On the one hand, woke activists seek to control language in nearly all areas of life and society. In their mind, a single, correct vision of social justice justifies serious restrictions on freedom of speech and constant control.
The second challenge stems from the way in which the flow of news and information in America is controlled. With only some exceptions (PBS and NPR), in America online news sources and televised news channels are privately owned. As a result, a small number of large corporations enjoys tremendous influence over the information that American citizens receive: they wield significant indirect political power. It is not only Google, Twitter, Facebook, Apple and Microsoft, but also Comcast (NBC, MSNBC, CNBC), AT&T (CNN), Viacom (CBS), and Walt Disney (ABC, ESPN) that wield extraordinary influence in this area. It is fair to say that these corporations lean left politically. The exception to the rule is NewsCorp, which owns the Wall Street Journal (with its rebellious editorial page contributors) and, of course, Fox News.
In a free country with a functioning legal system, citizens can appeal unjust or illegal decisions made by government agencies in a court of law. In their rulings, judges and courts must explain their reasoning in light of the law, legal precedent, the evidence and applicable regulations. In the United States, the First Amendment is a powerful tool against restriction of free speech.
But how can citizens appeal decisions made against them by private corporations such as Twitter or Facebook? The relationship that exists between a citizen and the state is different from the relationship that exists between a company and a consumer or customer. The state both establishes the legal framework governing companies and is commonly bound by this framework itself; a company, on the other hand, exists to maximize profits, usually following regulations crafted by the state and its agencies.
As the technology companies never tire of pointing out, their terms and conditions of use and community standards are not subject to the First Amendment. Thus far, the US regulatory environment with regard to tech companies remains heavily shaped by Section 230 of the 1996 Communications Decency Act, which limits the liability of tech companies for both under-filtering and over-filtering their users’ content.
When large tech companies host harmful content on their platforms, it has been argued that they should not face serious liability because they are just tech companies, which let a wide variety of content pass. On the other hand, when tech companies engage in censorship, they are said to be private publishers with no First Amendment obligations.
Should a company such as Amazon be allowed to banish books from its catalogue? Should Facebook or Twitter be allowed to censor user posts (or users) they consider to be false or misleading? Or should the boundaries of permitted speech not depend on the value judgments of tech executives, their employees and their oversight boards?
In technological terms, 1996 was a world removed from 2021, and an older regulatory environment is now confronted with a world in which technology continues to blur the boundaries between publisher, utility and censor. American constitutional jurisprudence related to freedom of speech has traditionally focused on government restrictions of citizens’ speech. The outsized public influence of ostensibly private tech companies, however, enables private companies to put their thumb on the scale in a way that increasingly blurs the boundary between public and private.
The recent controversies surrounding Facebook’s oversight board and Twitter’s suspension policy mark the latest small step in what will probably be a long process to establish the extent and limits of free speech in the twenty-first century. To the extent that private companies are beginning to function as quasilegal arbiters, free speech and its defenders face turbulent times ahead.
Governments will need to take a less passive, and more active approach in order to safeguard freedom of expression from opaque private restrictions that entail significant political consequences.