Posts about free speech

Concede defeat to bad speech

What if we concede that the battle against “bad speech” is lost? Disinformation and lies will exist no matter what we do. Those who want such speech will always be able to say it and find it. Murdoch and Musk win. That is just realism. 

Then what? Then we turn our attention to finding, amplifying, and supporting quality speech.

A big problem with concentrating so much attention and resource on “bad speech,” especially these last five years, is that it allows — no, encourages — the bad speakers to set the public agenda, which is precisely what they want. They feed on attention. They win. Even when they lose — when they get moderated, or in their terms “censored” and “canceled,” allowing them to play victim — they win. Haven’t we yet learned that?

Another problem is that all speech becomes tarred with the bad speakers’ brush. The internet and its freedoms for all are being tainted, regulated, and rejected in a grandly futile game of Whac-A-Mole against the few, the loud, the stupid. Media’s moral panic against its new competitor, the net, is blaming all our ills on technology (so media accept none of the responsibility for where we are). I hear journalists, regulators, and even academics begin to ask whether there is “too much speech.” What an abhorrent question in an enlightened society. 

But the real problem with concentrating on “bad speech” is that no resource is going to good speech: supporting speech that is informed, authoritative, expert, constructive, relevant, useful, creative, artful. Good speech is being ignored, even starved. Then the bad speakers win once more.

What does it mean to concentrate on good speech? At the dawn of print and its new abundance of speech, new institutions were needed to nurture it. In my upcoming book, The Gutenberg Parenthesis (out early next year from Bloomsbury Academic), I tell the story of the first recorded attempt to impose censorship on print, coming only 15 years after Gutenberg’s Bible.

In 1470, Latin grammarian Niccolò Perotti begged Pope Paul II to impose Vatican control on the printing of books. It was a new translation of Pliny that set him off. In his litany of complaint to the pope, he pointed to 22 grammatical errors, which much offended him. Mind you, Perotti had been an optimist about printing. He “hoped that there would soon be such an abundance of books that everyone, however poor and wretched, would have whatever was desired,” wrote John Monfasani. But the first tech backlash was not long in coming, for Perotti’s “hopes have been thoroughly dashed. The printers are turning out so much dross.” 

Perotti had a solution. He called upon Pope Paul to appoint a censor. “The easiest arrangement is to have someone or other charged by papal authority to oversee the work, who would both prescribe to the printers regulations governing the printing of books and would appoint some moderately learned man to examine and emend individual formes before printing,” Perotti wrote. “The task calls for intelligence, singular erudition, incredible zeal, and the highest vigilance.”

Note well that what Perotti was asking for was not a censor at all. Instead, he was envisioning the roles of the editor and the publishing house as means to assure and support quality in print. Indeed, the institutions of editor, publisher, critic, and journal were born to do just that. It worked pretty well for a half a millennium. 

Come the mechanization and industrialization of print with steam-powered pressed and typesetting machines — the subject of future books I’m working on — the problem arose again. There was plenty of proper complaint about the penny press and yellow press and just crappy press. But at that same time, early in this transformation in 1850, a new institution was born: Harper’s New Monthly Magazine. See its mission in the first page of its first issue:

Rather than trying to eradicate all the new and bad speech suddenly appearing, Harper’s saw the need to support the good, “to place within the reach of the great mass of the American people the unbounded treasures of the Periodical Literature of the present day.”

Magazines — which Ben Franklin and Noah Webster had tried and failed to publish — flourished with new technology, new audiences, and new economics as good speech begat more good speech. 

I am not suggesting for a second that we stop moderating content on platforms. Platforms have the right and responsibility to create positive, safe, pleasing, productive — and, yes, profitable — environments for their users. 

But it is futile to stay up at night because — in the example of the legendary XKCD cartoon — someone is wrong, stupid, or mean on the internet. People who want to say stupid shit will find their place to do it. Acknowledge that. Stop paying heed to them. Attention is their feed, their fuel, their currency. Starve them of it.

I also am not suggesting that supporting good speech means supporting the incumbent institutions that have failed us. Most are simply not built to purpose for the new abundance of speech; there aren’t enough editors, publishers, and printing presses to cope. 

Some of these legacy institutions are outright abrogating their responsibility: See The New York Times believing that the defense of democracy is partisan advocacy. Says the new editor of The Times: “I honestly think that if we become a partisan organization exclusively focused on threats to democracy, and we give up our coverage of the issues, the social, political, and cultural divides that are animating participation in politics in America, we will lose the battle to be independent.” No one is suggesting this as either/or. I give up. 

Instead, supporting good speech means finding the speech that has always been there but unheard and unrepresented in the incumbent institutions of mass media. Until and unless Musk actually buys and ruins Twitter, it is a wealth of communities and creativity, of lived perspectives, of expertise, of deliberative dialogue — you just have to be willing to see it. Read André Brock, Jr.’s Distributed Blackness to see what is possible and worth fighting for. 

Supporting good speech means helping speakers with education, not to aspire to what came before but to use the tools of language, technology, collaboration, and art to express themselves and create in new ways, to invent new forms and genres. 

Supporting good speech means bringing attention to their work. This is why I keep pointing to Jack Dorsey’s Blue Sky as a framework to acknowledge that the speech layer of the net is already commodified and that the opportunity lies in building services to discover and share good speech: a new Harper’s for a new age built to scale and purpose. I hope for editors and entrepreneurs who will build services to find for me the people worth hearing. 

Supporting good speech means investing in it. Millions have been poured into tamping down disinformation and good. I helped redirect some of those funds. We needed to learn. I don’t regret or criticize those efforts. But now we need to shift resources to nurturing quality and invention. As one small example, see how Reddit is going to fund experiments by its users. 

We need to understand “bad speech” as the new spam and treat it with similar disdain, tools, and dismissal. There’ll always be spam and I’m grateful that Google, et al, invest in trying to stay no more than one foot behind them. We need to do likewise with those who would manipulate the public conversation for more than greedy ends: to spread their hate and bile and authoritarian racism and bigotry. Yes, stay vigilant. Yes, moderate their shit. Yes, thwart them at every turn. But also take them off the stage. Turn off the spotlight on them. 

Turn the spotlight onto the countless smart, informed, creative people dying to be seen and heard. Support good speech. 

Speechless: An allegory for our time

They had warned me about the silence of the City. Living in the woods these last few years, alone with my pod-family, my mind’s ear had grown accustomed to nature’s carols of birds, crickets, and wind. From the City, I expected the cacophonies of my memory. But now, there was not a word.

When researchers agreed that this latest virus, MO’VID-29, was spread most effectively via talking or shouting — not to mention coughing and sneezing or, God forbid, singing — it did not take long for masks and silence to become the norm and then the law. In the last pandemic, too many millions of lives and insurance dollars were lost in the insane War of the Masks and its long-haul aftermath — so many that sense and science finally had to prevail, at least in this case. This time, with no vaccine in sight, the mandate to stick a sock in it finally did pass.

The irony of our next pandemic striking now, just as the last embers of online speech are dying out, is too obvious to be ironic. But that’s America. We never did irony well.

In this trip, on the subway, no one made eye contact — which was always true here, but all the truer now that the experts keep reminding us that a straight line is the shortest path to infection. Look down; breathe down. With our new muffling masks hiding every expression, with no glance into an eye, with no talk and no opportunity to eavesdrop, it was impossible to imagine what anyone was thinking; impossible to connect. An elevator ride had always been an antisocial experience, but in the morning as I left the hotel, I was not prepared for the sight of four people each facing a corner and an exhaust fan. On the street, people moved as if they were magnets projecting opposite poles.

The night before, when I’d arrived, I was hungry, and since I could not imagine how expensive the room service would be in my awfully expensive little hotel, I decided to try the New Automat I’d seen in constant commercials; we don’t have them out in the country yet. Back when I used to travel, I never minded eating out and alone; I loved reading books over dinner and wine. But this was too eerie: all the diners alone in their own plexiboxes, not unlike the Zoomboxes we use to enclose us so we may talk on calls. Instead of a person on the screen in front of me there was a menu and below it, a slot that would open when the conveyor delivered my meal. To complete the effect, I wondered why they didn’t add steel bars and name the chain Solitary.

I was in the City to see my editor, not that there was much point in coming in as we’d have to converse in our individual, sealed Zoomboxes anyway. But at least we could look at each other through the plexi rather than screens. I’m old enough to remember when authors and editors had lunch at tables with tablecloths and wine. I’m old enough to remember authors. Anyway, being an old fart, for auld lang syne, I decided to take the risk and come in for my final negotiations. Oh, how I wish it were like the old days, when we’d be arguing over the title of my book or my defense of the Oxford comma or my predilection — which I readily confess — for dashes. Now we had to hash out my fee: how much I would be paying to my fact-checker, to my risk actuary, for licenses of snippets of quoted and referenced material, and for my speech insurance.

Amazing how, since the death of Section 230, everything in my humble trade has been flipped on its side. That poor little law, just twenty-six words, never stood a chance, as the right and the left attacked it in an ideological pincer movement: the left demanding that too-big platforms take down hate speech and lies or lose their protections, the right protesting that the hate speech and lies the platforms took down was theirs and so they threatened to go after the companies for “canceling” them. Media poked the coals fueling moral panic, gleefully demonizing technology companies and ultimately the internet itself. They created the conflict they covered. But they never acknowledged the conflict of interest inherent in attacking companies that competed with them for users’ attention and advertisers’ dollars. They never saw that in going after this law they undermined the protection of their own free press. Never mind all that; it made a good story.

After 230’s end, any company carrying anyone else’s speech — words, sounds, pictures, video, memes, shares, links, creativity, and conversation of any sort — became liable for the content of that speech. Gawker suits sprouted like mushrooms in a dark, industrial pig barn. The by-now-broken-up platforms’ first instinct was to make everything ephemeral: all speech disappeared in the wind after twenty-four hours, then twenty-four minutes. That didn’t much matter, for entrepreneurial cryptodicks made trollish enterprises that scraped every word and thought from the baby nets as it occurred, stored it all offshore in their undersea data farms, and filed or merely threatened suits with evidence in hand. These bros became our evil librarians, for they held the only repository of our online life and culture in text and image and we who made it couldn’t get at it, but for a price.

Enter the insurance industry. Their bottom lines were slaughtered in the slaughter of citizens to the Trump virus — trillions of dollars gone in life insurance and medical payments and bankruptcies, with record losses even after government bailout upon bailout. Now the companies saw a new business opportunity in insuring speech after such a policy was pioneered by the British startup, the Stationers’ Company.

For a price, you can get your book or blog post published, but you must indemnify the platform or publisher that carries it. Contemporary nonfiction is nearly an impossibility; the risk is too high and so then is the price. Fiction retains its defense for the author and carrier of not being true, but now absence of truth must be certified. To get a policy and license to publish, you have to subject your work to the scrutiny of fact-checkers, who certify the fictional nature of the writing by finding and excising every fact and replacing it with an alternative fact. We used to call the process being Conwayed, until she sued for trademark violation.

As a result, most everything is fiction, all is allegory. We learned much from our Chinese internet cousins, who for years before us had honed the skill of replacing people with animals, ideas with memes. But woe be to whoever translates the alternative to the real. Lawyers await. When I complained to my agent, she said, “If Kafka could do it…” Yes, but he had metaphor and irony. We work amid the literal-minded Puritanism of the right-wing fundamentalists, who will label that which they don’t understand dangerous, so we must make everything in their sight obvious and anodyne. The third-person effect is now the rule of the land, its enforcers arguing that they alone are not vulnerable to hate, porn, disinformation, or heresy — but everyone else is. So they protect us from us. “This,” I shouted back to my agent from the safety of our Zoomboxes, “is rule not by Big Brother but by Barney.”

The only other loophole in the law that replaced 230 is the exemption for political and government speech: anything said by a politician or government official, including local pols and police, is safe from threat of suit. Was what followed an unintended or intended consequence? Candidates for public office got nuttier and nuttier and so the only free speech — theirs — was little else than conspiracies and lies. The few newspapers left — one or two bankrolled by billionaires, the others by nutters themselves, the rest abandoned by the hedge funds that controlled them because of the high cost of speech insurance — carried official words because they were official. And so, in the self-fulfilling prophecy that has always been political news, media assured election of extremes.

This is not to say that there are not still some people who speak their minds, if they indeed had them. The same people who bring and bankroll suits against us still spout their hate, bile, and flame because they have more lawyers than you do. These are the people who cried “cancel!”, though, of course, they were not the ones being silenced. By claiming “cancel culture,” they attacked the speech of those who dared criticize them. And they won. They owned the libs after all.

While in the City, I came upon a demonstration over the police killing of a man whose spoken cry of innocence became a capital crime. With cops all around ready to arrest anyone at the first sound, there were no shouts, chants, or songs. Instead, on the left, I saw a forest of brandished middle fingers: human emoji. On the right, a herd of angry white men in their uniform “STFU” gimme hats brandished their Trump thumbs. This scene seemed to me the perfect culmination of our culture wars: all emotion, no substance.

The public conversation simply does not exist. I don’t mean to say that the end of 230 was the sole cause of that; there were other conditions leading here. In the Petri dish of the last decade, the techlash created the perfect medium for the cloning of laws and regulations from around the world. Practically every nation passed a carbon copy of Germany’s NetzDG hate-speech law, which in practicality forced the baby platforms — each smaller and less able to afford defense of itself and the internet — to take down anything that might be taken as hate by anyone. Countless nations followed little England’s lead and deputized regulatory agencies to enforce a duty of care against online harm. To this day, no legislature or court has adequately defined harm or hate, so anything that might possibly offend, though legal, is vaporized. This is what they call neutrality.

Europe’s Right to be Forgotten is de jure universal as now any nation may demand that any platform take down anything worldwide: privacy über alles, Datenschutz for all, we have reached the lowest common denominator of freedom. This has made for a fascinating legal quandary: Who is to say who owns a conversation or a transaction? If you and I correspond and I don’t want you to remember or repeat what was said, I can claim ownership of “my” data and force you to erase your memory of it. Code being law, this question has been translated into not only the ephemeral eradication of most any uninsured public content but also private conversation. That is, my Zoombox will not let me record us and my Gmail will not let me keep or print our emails unless you sign my terms and conditions, and because of our speech liability policies, we all got ’em.

Seeing its opportunity to pounce, the old content industry — Hollywood and remaining newspaper moguls — managed to exploit this highly restrictive environment by expanding the content controls they had been dreaming of. Europe’s and America’s copyright extensions spread around the globe such that it is now nigh unto impossible to quote anyone or share anything anyone else has said without getting — that is, paying for — permission. That’s another hurdle my book will have to go through: Plagiarism.AI, which will ferret out any line, character, or idea that might have been said anywhere in almost a century — that is, the time covered by copyright — which could make me, my publisher, and my insurance company liable. A hit sets red lights and red pencils into action, unless I’m willing to pay Disney for the privilege of calling all this “Mickey Mouse.”

I blame the politicians for passing their cynical laws. I blame the nutters and the uneducated, angry cultists who voted them into office. I blame media for their latter-day Luddite crusade against technology, their negligence to tell the truth about the insanity gripping Earth, and their failure of vision on the internet. I blame the technology companies for their hubris, greed, secrecy, awful decision-making, and refusal, in the end, to defend our internet because they thought it was theirs. But I also blame my fellow academics and writers. For I remember my horror when I first saw a paper that asked — just asked, mind you — whether the First Amendment was outmoded, obsolete. I remember how appalled I was when I read another professor’s blog post arguing that we have “too much speech.” I shouted into the air, when we still could: “Who is to say whose speech is too much?” It was this letting down of the guard around freedom of expression for all that led us to the uncomfortable silence we endure today.

The net that I hoped would let anyone and everyone speak freely past the gatekeepers and censors, the net that would introduce us to each other and make strangers less strange, the net that eventually would spark creativity yet unimagined (perhaps a century and a half hence, for that is how long after Gutenberg it took for new forms of media and literature to flourish) — that net is dead.

Or is it?

This is a tale of privilege and power to which the privileged and powerful are willfully blind. It is ever thus. Whenever a new means of speech is created, enabling voices previously unheard to speak, the incumbents in charge of the old mechanisms try to control it. They have since Gutenberg. Scribes objected to printing, newspapers to radio, print to television, media to the net — at each stage in cahoots with other threatened institutions of power: princes, popes, parliaments, legislators, regulators, industries, elites. They have used many tools of control: censorship, banning and burning (of books and their authors), criminalization, the granting of monopolies, licensing, copyright and the protection of exclusionary business models, moral condemnation, and critical belittling. The net finally allowed anyone connected to it to speak to anyone else, everywhere. That is what made it more threatening to the privileged and powerful than each technology before: the scale of its freedoms. That is why they so overreacted. Every time before, speech would out. I am yet optimistic that it will again — that, for example, #BlackLivesMatter’s Reformation will rise like Luther’s. But it will take too long and I am too old to wait.

You might wonder why I dare write these facts and accusations, undisguised. Well, I left my editor’s office that day with a bottom line: I would pay more in insurance and fees than the publisher would pay me for my work. We’d both lose money on it. I realized that today, we no longer pay to read; we have to pay to write. Speech is not free. I can tell you its price to the penny.

I decided to speak out nonetheless. I would like to think this was a decision on principle: to tell the truth. But the truth is, I’m cowardly. I write this not in the City or from my country pod but instead from one of the last two sane nations on Earth. I chose Iceland thanks to a very nice politician there, whose lovely old dog I used to watch on the late, lamented Twitter as they strolled the streets of their Reykjavik neighborhood. She became a friend from afar only thanks to the internet and social media back in the day, when that was still possible. She worked to grant me writer’s asylum and entry into the creators’ refuge camp on her island, which — like the other island of sanity in our world, New Zealand — has managed to stay disease-free. Here I treasure my little room, my thick sweaters, my keyboard, and my voice.

Facebook: Constitution before statutes

Constitution of America, We the People.

The Facebook Oversight Board is now open for cases and I look forward to seeing the results. But I have the same question I’ve had since the planning for its creation began, and I asked that question in a web call today with board leadership:

What higher principles will the Board call upon in making its decisions? It will be ruling on Facebook’s content decisions based on the company’s own statutes — that is, the “community standards” Facebook sets for the community. 

The Board says it will also decide cases on the basis of international human rights standards. This could mean the board might find that Facebook correctly enforced its statute but that the statute violates a principle of human rights, which would result in a policy recommendation to Facebook. Good. 

But there remains a huge gap between community statutes and international human rights law. What is missing, I have argued, is a Constitution for Facebook: a statement of why it exists, what kind of community it wants to serve, what it expects of its community, in short: a north star. That doesn’t exist. 

But the Oversight Board might — whether it and Facebook know it or not — end up writing that Constitution, one in the English model, set by precedent, rather than the American model, set down in a document. That will be primarily in Facebook’s control. Though the Oversight Board can pose policy questions and make recommendations, it is limited by what cases come its way — from users and Facebook — and it does not set policy for the company; it only decides appeals and makes policy recommendations. 

It’s up to Facebook to decide how it treats the larger policy questions raised by the Oversight Board and the cases. In reacting to recommendations, Facebook can begin to build a set of principles that in turn begin to define Facebook’s raison d’être, its higher goals, its north star, its Constitution. That’s what I’ve told people at Facebook I want to see happen. 

The problem is, that’s not how Facebook or any of the technology companies think. Since, as Larry Lessig famously decreed, code is law, what the technologists want is rules — laws — to feed their code — their algorithms — to make consistent decisions at scale. 

The core problem of the technology companies and their relationship with society today is that they do not test that code and the laws behind it against higher principles other than posters on the wall: “Don’t be evil.” “Work fast and break things.” Those do not make for a good Constitution. 

But now is their chance to create one. And now, perhaps, is our chance. I didn’t realize that every Oversight Board case will begin with a public comment period. So we can raise issues with the Board. Indeed, community standards should come from the community, damnit, or they’re not community standards; they’re company standards. So we should speak up. 

And the Board will consult experts. They can raise issues with the Board. And the Board can, in turn, raise issues not just for Facebook but, by example, for all the technology companies. That discussion could be useful. 

Imagine if — as I so wish had been the case — the Board had been in operation when Twitter and Facebook decided what to do about blocking the blatant attempt at election interference by the New York Post and Rupert Murdoch in cahoots with Rudy Giuliani. The Board could have raised, addressed, and proposed policy recommendations based on principles useful to many internet companies and to the media that love to poke them. 

Regulators could also get involved productively more than punitively. I was a member of a Transatlantic Working Group on Content Moderation and Freedom of Expression, which recommended a flexible framework for regulation that would have government hold companies accountable for their own assurances, requiring the companies to share data on usage and impact so researchers and regulators can monitor their performance. This, in my view, would be far better than government trying to tell companies how to operate, especially when it comes to interference in free speech. But government can’t hold companies accountable to keeping promises if there are no promises to keep. A Constitution is a promise, a covenant with users and the public. Every company should have one. Every company should be held accountable for meeting its requirements. And the public discussion should revolve around those principles, not around whether Johnny is allowed to use a bad word. 

I make no predictions here. The Board could end up answering a handful of picayune complaints among tens of thousands of possible cases a week and produce the script of an online soap opera. Facebook could follow the letter of the law set down by the Board and miss the opportunity to set higher goals. Media, experts, and the public could be ignored or worse could just continue to snipe instead of contribute constructively. 

But I can hope. The net is young. We — all of us — are still designing it by how we use it.