Free speech, democratic participation, and integrity of elections

A 35 minute segment from the show Fresh Air discussed free speech. Host Dave Davies spoke to Emily Bazelon, a writer for New York Times Magazine who recently wrote an article on the topic. I worked from the episode’s transcript. Davies mentioned the recent story of a laptop with supposed damaging information on Hunter Biden. Twitter banned links to the story, then two days later had to relent because it was being accused of censorship by Republicans. Davies asked the question:

In an age when questionable, perhaps even fabricated, content can sweep through the digital world unchecked, does our traditional commitment to unfettered free speech still serve democracy?

Bazelon told a story that started with the Transition Integrity Project that gamed out various scenarios around the election. In one of many scenarios considered Biden wins the popular vote, but not the Electoral College, and Democrats encourage California and the Pacific Northwest to secede as a bargaining chip. One of the TIP organizers included that last bit in an essay. A second person, a nasty guy supporter, declares it is evidence that Biden planning a coup. A third person makes a video about it and gets millions of views. The story is expanded by Revolver News. Tucker Carlson features it on his show on Fox News. It goes viral on social media. And the nasty guy tweets a vague reference to it claiming the election result may never be accurately determined. An academic exercise becomes a conspiracy theory and spread by media and political elites. This kind of story evolution is typical. The stories aren’t about winning the battle of ideas. they’re about creating chaos and keeping the battle from being fought. They’re about sowing distrust of all sources of information, making it hard for voters to sort through it all. That exhaustion discourages people from participating in democracy. The idea that the answer to free speech is more speech doesn’t work so well when the internet can spread lies faster than the truth. It also doesn’t work with platforms like Facebook who want to keep users engaged and they do it through hot content, stuff that generates outrage – and profit. The best stuff with the most convincing argument doesn’t rise to the top. It’s not neutral and it’s not healthy for democracy. Social media pretends it is like a public square, but it’s really a private zone. But, under current law, if something goes wrong the platform is not liable. That skews the type of speech that’s amplified. They don’t care about the public interest. On the flip side if one party threatens to sue over what they claim is objectionable content of another the platform may just take that content down to avoid the suit. That’s overcensorship. The Citizens United case in 2010 declared a corporation has the same right to speak as an individual. But a corporation has vast resources and is really good at dark money, so we don’t know who is speaking so loudly. We’ve lost sight of the idea that free speech is to further democratic participation. Mainstream media gets a reality check. If one source gets something wrong another will gladly point out the error. But the conservative media ecosystem doesn’t compete for factual accuracy. They’re much more likely repeat the false narrative. That’s not just a partisan comment. Only the right propagates disinformation. Europeans, because of the Nazis and the Holocaust, are leery of the notion that good ideas are always going to win out in the marketplace of ideas. So free speech isn’t absolute, but balanced against the rights of democratic participation and integrity of elections (the Nazis were originally elected). It allows courts to permit punishment of people who incite racial hatred or deny the Holocaust. There is an understanding that democracy needs to protect itself from anti-democratic ideas. There is acceptance of restrictions on speech. Yeah, that means the government must decide which speech is permissible, something Americans would consider a quagmire. Part of the answer is to aks did the hate speech reach a wide audience. Another part is whether there is time for the other party to respond. Many other democracies have a news blackout law a few days before an election to prevent false stories without sufficient time to respond. Because of this balance of rights Europe doesn’t have the large feedback loops between right-wing media and social media. Europe might lead the way in regulating internet platforms, breaking up monopolies like Facebook, demanding more transparency about hate speech on these platforms, perhaps even demanding changes to the algorithms that are known spreaders of disinformation. For example, have a circuit breaker when a post starts to go viral so that it can be vetted.