For some time—at least months and probably much longer—I’ve been struggling with what the Trump experience may be teaching us, whether we like it or not, about free speech limitations—a subject of repeated concern vis-à-vis his tweeting. I suspect that what I have to say has been at least culturally lurking and probably openly addressed during the high-tech decades, especially as social media expanded and took a grip on the…world.
I often cite the limitation rubric about crying fire in a crowded theater[1] (which I guess is a synonym for “clear and present danger”). This “definition,” of course, can be used as a cudgel in all sorts of adverse ways, as in wartime censorship, or hysteria like the HUAC-McCarthy era and 9/11, or the bullying presence of the Official Secrets Acts in the UK.
Thinking, of course, keeps evolving and old truisms keep getting debunked and tossed into rubbish heaps. But I have a sense that all humans resist entertaining such a thought about ideas most precious to us, like core tenets for those of us who support the ACLU. I fear that we are starting to contort old arguments into new contexts where they don’t fit. In particular, I’m concerned about how the huge effect of social media may need to moderate our exact approach to free speech.
I don’t know the history of how law, anywhere, has handled changing communication tools that became bedrocks of everyday life. Did the telegraph or telephone raise civil liberties issues, and if so, how were they handled (or mishandled)? What about teletype or faxing or [your top-of-mind pre-hi-tech communication service here]?
The Jan. 6, 2021, Capitol invasion, the full impact of which is only beginning to penetrate my brain, seems a kind of climax to the power of Twitter that we have seen exercised so appallingly in the last four years. It underscores the old dilemma of what to do if permitted freedoms are bringing about their own demise. Especially if we’re privileged and not personally among a class of people whose victimization we sincerely seek to correct, we may feel detached from their concerns and comfortable about sticking to our ideals because they haven’t seemed threatened (until now?).
I can’t remember where I read this recent provocative comment: “Free-speech no longer exists in America. It died with big tech.”
Even if it ends up producing no clear answers, should we not be re-examining exactly how we approach civil liberties? Many of our traditional ACLU concerns will always be present, but some, I strongly suspect, require revamping to factor in the social media age. This is most obvious with what is apparently a powerful impact of social media, notably facebook and Twitter.[2] Among the several articles I’ve read on this subject, new ground doesn’t seem to be getting broken. I’d love to know of writings that do otherwise.
So far as I can reckon after nearly eight decades of life, the ACLU and its high civil liberties’ standards should be at the forefront of such re-evaluation, but should not shy from it just because it causes anxiety about the organization’s heritage. I’d like to see intensive study, aided by recruitment of the best (who decides?), diverse honchos in relevant areas of thought and practice.[3]
Considerations must include the insoluble problem (about which I’ve spoken and written) that different humans have different unprovable basic assumptions (often called articles of faith) that provide little or no basis for confronting a different set of such assumptions. “Facts” and “objectivity” are approximations of what they claim to be, and not all people will agree on how to determine them. (To us, for example, covid = hoax is a flagrant disregard or deliberate obfuscation of “facts.” Thousands of other such disagreements have arisen throughout human history but, for our purposes, notably under Trump. I’ve written and continue to read about what may be motivating such seemingly irrational thought.)
How do we conscientiously enforce adherence to basic standards of rationality that WE value when others think we’re crazy (as we don’t understand them and how they “think”)?[4] Who gets to define a “fact” or a “lie”? In short, how do we (conscientiously) enforce a Western tradition of rationality that I certainly venerate? And why should we? Perfectly fine cultures embrace other approaches without ever descending to the hellish pit we’ve recently been experiencing: religion, mysticism, alternative medicine, ancestor worship, and so on—none of which are among my articles of faith.[5]
Indeed, what right have we to demand other cultures practice what we define as responsible morality? Female genital mutilation? (And since we do make this condemnation, doesn’t consistency demand that we ban male circumcision?) What we perceive as oppression of women? Child labor? Punishment by whipping or severing body parts? Genocide or “ethnic cleansing”? Slavery? Etc., etc. And yet we do—and I do. Much as I hate religious missionaries, I have to realize that we all, including me, are missionaries of a kind—and a kind that others may detest as much as we detest certain behavior. Converting others to our key (or not so key) viewpoints seems hard-wired.
In case it’s not clear, I’m trying here simultaneously to promote the idea of devising some new approaches to free speech that factor in unanticipated consequences of digital communication and to underscore how slippery that task would be.
Other countries seem to have found (relatively) comfortable limits on free speech. (I only know specifically of Germany’s laws against promoting the Nazism that destroyed the country, and I have no idea how they work.) Can we learn anything from them that would be useful in the context of our own history and current realities?
I have no solutions to offer here, though I’d probably be happy to be part of any effort to carry out what I’m proposing.
_______________________________
[1] I thought I got this from John Stuart Mill, but apparently, as probably all of you know, it was first articulated by Oliver Wendell Holmes in a 1910 unanimous SCOTUS decision: “The most stringent protection would not protect a man falsely shouting fire in a theater and causing a panic.”
[2] I am on facebook but not Twitter or any other social media (except for a brief and stormy relationship that ended with right-wingers bullying me off Next Door). I only engaged with facebook after Trump’s election; I looked to it to give access to what politicos progressive and further left are saying, and to share my own thinking in relevant areas. I have learned a lot this way, though part of that learning is that all too often, similar-minded folk fall prey to the same kinds of infuriatingly poor critical thinking that seems to permeate our enemies. Most notably, unsupported stories are shared as true, claims are “shared” with no supporting evidence, and invective replaces reflection and analysis. I don’t pretend I’m perfect, but I try hard to come close.
[3] Should “disinformation” be illegal? If so, who gets to identify it? Were it realistic to ban social media, would that return us to some kind of “traditional” approach to free speech? Or setting boundaries to what a given social medium can do?
[4] In my research on right-wing conspiracists, I found that pretty much all of them embrace a notion of “sovereignty,” which very roughly means being able to do pretty much anything they want without interference from (intrinsically) corrupt governing or corporate entities.
[5] I’m reading a fascinating book (Joseph Henrich, The Secret of Our Successs: How Culture is Driving Human Evolution) on how culture and its evolution often produces biological selection pressures for evolution. One discussion contends that certain cultural behaviors are dependent on NOT having a rational understanding of the procedure—that such consciousness would undermine the efficacy and efficiency of the procedure.