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Free Speech and The Knowledge Economy

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Tuesday, 12 September 2017 15:21

By: Arthur M. Freyre

The events in Charlottesville, Virginia, have led to calls to regulating “hate speech” on a corporate level. Those arguing for such regulations are calling for companies such as Google, GoDaddy, and others to either ban or suspend websites or individuals that are knowingly espousing either “alt-right” or white supremacy ideology. Recently, Apple and Google banned an Internet startup called Gab, which was created to allow users a platform to practice free speech, from having their application available for download via App stores on either the iPhone or Android.[1]

Gab’s app is similar to Twitter. It has a policy that is committed to free speech. That free speech policy was developed primarily in reaction to Twitter’s actions, such as occasionally blocking privileges of individuals deemed to be “hateful.” Their commitment to free speech has not only allowed “alt-right” individuals to join, but also dissidents in foreign countries where freedom of speech is severely restricted.

Letting tech companies handle any type of censorship regarding the alt-right and/or white supremacists is a mixed bag as it opens the doors to general censorship of any viewpoint deemed inappropriate. A positive argument for such sanitization of publicly used language is that we are seeing the marketplace regulate this issue versus having the Congress or State legislatures getting involved. Allowing industries to try and create a resolution to resolve this problem is laudable. It is laudable because the marketplace (i.e. the internet community) is working out a problem of hate speech without waiting for the Congress or a federal agency, such as the Federal Communication Commission, step in through regulation.

Notwithstanding their efforts of trying to resolve this problem, the issue of malevolent language, there are two pitfalls with regulating speech of any kind from a policy perspective.

The first pitfall is that there are no universal standards that define “hate speech.” Hate speech is very subjective, the affects of which are in the eye of the beholder, which, results from this lack of definition. As Supreme Court Justice, Anthony Kennedy wrote in the case of Matal v. Tam,

… A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.[2]

Matal v. Tam was a trademark case where an Asian rock band, known as the Slants were barred from trademarking their name. The US Patent and Trademark Office refused to trademark their name because the word “Slants” has been used derogatively against Asians.[3]

As Justice Kennedy explained, any regulation dealing with ”hate speech” can invariably be used against “minorities or those with dissenting views.” Another example involves a pending case before the U.S. Supreme Court who will listen to the matter of Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission.[4] In that case, the Supreme Court will determine whether or not the Colorado Civil Rights Commission was correct in ruling against Mr. Jack Phillips for violating Colorado’s Human Rights Statute after refusing to bake a wedding cake for a same sex couple because of his religious beliefs regarding marriage. The Colorado Civil Rights Commission determined that Mr. Phillips was guilty of discrimination for his refusal to bake the cake. Additionally, his religious beliefs were considered irrelevant by the commission. 

The second dilemma that comes with companies regulating speech involves the matter of access. The Internet is a predominant source of where the majority of the population gets news and information. We live in a Twitter, Google, Instagram, and Facebook world as theologian Leonard Sweet once said. Television and print news publications are struggling to adapt. Additionally, it is very expensive for someone to break into the technology industry with a platform that is just as original as Google or Twitter. To do so requires a commitment of at least a million dollars. Because of this limited access for companies and their competitors to provide platforms for news, there is the fear that corporations, and not the government, will be enforcers of censorship. At this time, there are a select group of corporations that would maintain a stronghold on control in making decisions regarding what is and is not considered hate speech. For so few to have so much power over deciding the parameters for which language can be censored has the potential for abuse of that power.

The challenge facing the tech community is to develop standards as to what the grounds will be to either suspend or expel an individual or entity based on the type of language they use. These standards need to be stringent and well defined. This process cannot be done at the whim of special interests groups[5] and will require honest discussion. Unfortunately, Silicon Valley has a tendency to go autocratic.[6] If you think this is political posturing, go ask Brendan Eich, the former CEO of Mozilla who had to resign because he donated money to a political action committee dedicated to the passage of Proposition 8, which would have amended the state constitution of California by defining marriage as between a man and woman. Eich was pressured to resign after a website discovered that he had donated $1,000 to an organization that was supporting Proposition 8.

If the tech community fails to navigate this matter slowly and thoroughly, expect the Federal government, through its power to break up monopolies, and exert its political muscle. Although doing this in the name of free speech is potentially beneficial, in the end, it will more likely than not be bad for businesses because it would allow the government an opportunity to intervene and regulate more.

 

CITATIONS:

[1] To read more about Gab’s situation see “First Amendment in Peril?” at https://www.city-journal.org/html/first-amendment-peril-15401.html

[2] See Justice Kennedy’s full opinion at https://supreme.justia.com/cases/federal/us/582/15-1293/opinion4.html

[3] See The Supreme Court of the United States decision on MATAL v. TAM, June 2017, https://scholar.google.com/scholar_case?case=8669821076053045429&hl=en&as_sdt=20000006

[4] See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

Also see “Baker who refused to make wedding cake for gay couple is backed by Justice Department in SCOTUS case” http://www.abajournal.com/news/article/baker_who_refused_to_make_wedding_cake_for_gay_couple_is_backed_by_justice_#When:22:18:00Z

[5] Consider this example of what happens when censorship is applied on a whim based on politics – Following the events in Charlottesville, Cloudfare’s CEO made the decision to remove The Daily Stormer from their web hosting services. In a letter to his team Matthew Prince, Co-Founder & CEO of Cloudfare wrote, “Let me be clear: this was an arbitrary decision. It was different than what I’d talked talked with our senior team about yesterday. I woke up this morning in a bad mood and decided to kick them off the Internet. I called our legal team and told them what we were going to do. I called our Trust & Safety team and had them stop the service. It was a decision I could make because I’m the CEO of a major Internet infrastructure company.” See “Cloudflare CEO on Terminating Service to Neo-Nazi Site” https://gizmodo.com/cloudflare-ceo-on-terminating-service-to-neo-nazi-site-1797915295

[6] http://www.smh.com.au/world/technolibertarians-a-weak-link-in-democracys-defence-against-authoritarians-20170804-gxp8er.html.

See also, https://www.washingtonpost.com/amphtml/business/economy/in-silicon-valley-the-right-sounds-a-surprising-battle-cry-regulate-tech-giants/2017/08/24/818a6518-8832-11e7-961d-2f373b3977ee_story.html

 

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