Andrew Marantz’s New York Times op‐ed “Free Speech Is Killing Us” provokes but does not persuade. You might think the essay advocates the federal government preventing harms – maybe mass shootings – by restricting freedom of speech. But Marantz writes:
I am not calling for repealing the First Amendment, or even for banning speech I find offensive on private platforms. What I’m arguing against is paralysis.
So we don’t have to restrict free speech assuming the government could do so. So what should we do?
First, we should be clear about the harm said to be caused by free speech. As Robby Soave notes, free speech has advanced over the past few decades at the same time the society has become less violent. But Marantz is asserting that some online speech causes mass shootings which are at the top of the public mind and agenda right now.
Are we paralyzed in the face of mass shootings? Not really. The government cannot start censoring online speech. But the tech companies are not the government and thus not covered by the First Amendment. And they have not been paralyzed. Facebook and other companies create and enforce Community Standards that remove threatening speech or harassment. Section 230 of the Communications Decency Act protects companies from liability for restricting “access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Far from allowing Facebook to “get away with the (glorification) of murder”, as Marantz bizarrely asserts, Section 230 makes it possible for the company to regulate the very speech he condemns.
We should keep in mind though that Congress is not the primary reason your Facebook feed does not look like 8chan. Facebook moderates content according to its Community Standards to maximize the number of users on the platform. The desire for profit, along with some sensible laws, is moving the companies toward an acceptable balance between speech and safety.
Marantz wants more… more government, that is:
Congress could fund, for example, a national campaign to promote news literacy, or it could invest heavily in library programming. It could build a robust public media in the mold of the BBC…If Congress wanted to get really ambitious, it could fund a rival to compete with Facebook or Google.
A campaign to increase news literacy might be a good thing in part because it would show that speech might be our salvation rather than our killer. But why must the government fund it? Wouldn’t the tech companies do a better job? Do we really think extreme speakers or listeners on 8chan would tune into federal “library programming” or a more heavily funded PBS? Finally, does Marantz realize that a publicly owned and managed “Facebook” would be prohibited by the First Amendment from removing the very noxious speech he condemns? His proposals for more government look like a longstanding wish list for Progressives than an answer to the harms he attributes to speech.
The 8chan website did host extreme speech with little content moderation. Neither Google nor Facebook could moderate their speech. Reasonable people may disagree about whether those discussions led to mass shootings. They do not seem to have met the legal standard for incitement and thus for government censorship. But the constitutional standard is not the only one here also. Matthew Prince, the CEO of Cloudfare, denied 8chan protection against dedicated denials of service attacks thereby driving them off the internet for a time. That too was a private ex post response to the El Paso shooting. To be effective Prince would have had to act before the shootings and of course, doing so into the future would run the risk of suppressing speech that would not cause violence. This risk of suppressing valuable as well as dangerous speech goes with the territory for both private managers and public censors. Perhaps the nation and our courts will want to deal with mass shootings by demanding a looser tie between speech and violence. That’s a debate worth having. It may be a debate we will have. But it’s not debate advanced at all by Andrew Marantz’s essay.
