Reader BJ not only sent The Atlantic article below, but also archived it (here), for he thought that, given the articles’ message, the authors might change or even retract it. Apparently that hasn’t happened, though I haven’t compared the archived version with the latest published version (click on screenshot below to see that one).
Why did he think that? Because the tenor of the article, unless both BJ and I misunderstood it, is that not only has censorship increased on the Internet to prevent dissemination of medical misinformation, and not only have companies like Facebook and Twitter (with government approval) begun monitoring our interests and web activities, but also that Chinese-style monitoring and censorship is a good thing, and that it’s also good to censor “harmful speech” to allow a smoothly functioning America.
The authors, as it notes above, are two law professors, Goldsmith at Harvard (expertise: “terrorism, national security, international law, conflicts of law, and internet law”) and Woods at the University of Arizona (expertise: “cybersecurity, the regulation of technology, and international law, both public and private”). These are no slouches, and in fact I’m surprised that they seem to approve of increased censorship in the U.S.
Now there’s no doubt that the monitoring of Americans by both the government and private companies has increased. Goldsmith and Woods’s article give the gory details, which I won’t repeat. If you use Facebook, for instance, you’ll already know. More and more security cameras are being put up by state and local governments, and, combined with facial-identification software, they’ll soon be able to be monitored citizens as the Chinese do, though I doubt the government will give us a “social credit” score. The sweating professors ascribe the beginning of the call for censorship to Edward Snowden’s ferreting out of the U.S. government’s monitoring of the Internet, and to Russia’s interference in the last Presidential election through fake social-media accounts.
Further, companies like Twitter, Facebook, and YouTube already exercise censorship, getting rid of tweets, posts, and videos that they don’t like, or that are deemed to violate “community standards”. (My own tweets are often hidden on Twitter, even when the content is completely innocuous.) But what the law professors don’t seem to realize, or at least don’t mention, is that we still adhere to First Amendment principles where they’re supposed to apply: in public speech—not on the sites of private companies like Facebook.
Although Facebook has the right to eliminate content with bad advice about coronavirus, for example, it can’t eliminate bad medical advice on other sites (Goop comes to mind), nor can it prevent people from touting quack science in public so long as they don’t market products with false claims (“false advertising” of products is not protected by the First Amendment). And so we have Alex Jones, Dr. Oz, and Deepakity Chopra flogging bogus products, while even the President of the United States can go on national television and suggest that people might fight coronavirus by inserting lights into their nether parts. And I can still stand on the street corner and rail against the government without fear. Further, unlike China (see the subheading above), American newspapers can and do publish regular criticisms of the government. Goldsmith and Woods, in their approbation of increasing censorship, don’t tell us whether they want more government censorship of the news media.
Not only do the authors see an inexorable increase in censorship, but they seem to think that’s good. But here, read for yourself (my emphasis):
As surprising as it may sound, digital surveillance and speech control in the United States already show many similarities to what one finds in authoritarian states such as China. Constitutional and cultural differences mean that the private sector, rather than the federal and state governments, currently takes the lead in these practices, which further values and address threats different from those in China. But the trend toward greater surveillance and speech control here, and toward the growing involvement of government, is undeniable and likely inexorable.
In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong. Significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with a society’s norms and values.
American courts have already worked out what speech in the public sphere is “compatible with a society’s norms and values”, so what are the authors talking about? Of course private companies like Facebook can control their content, but what content can the government censor on my own website? Only the content that’s already prohibited: slander and libel, child pornography, posts that call for and are liable to produce immediate violence, and so on. Beyond that, I can say what I like. So what, exactly, are Goldsmith and Woods calling for to preserve society’s “norms and values”? (That excuse, of course, is the usual reason given for banning speech, ranging from the blasphemy laws of many countries, through criminalizing Holocaust denialism, to calls for banning “hate speech”—a slippery term if ever there was one.
One more quote:
What is different about speech regulation related to COVID-19 is the context: The problem is huge and the stakes are very high. But when the crisis is gone, there is no unregulated “normal” to return to. We live—and for several years, we have been living—in a world of serious and growing harms resulting from digital speech. Governments will not stop worrying about these harms. And private platforms will continue to expand their definition of offensive content, and will use algorithms to regulate it ever more closely. The general trend toward more speech control will not abate.
The article, I note, is surprisingly poorly written for an Atlantic piece with two fancy professors as authors, and it’s not easy to ferret out its point. But given its subtitle, and (if you think the authors didn’t write it) the affirmation of its subtitle in the first quote above, as well as the repeated emphasis on “harmful speech”, I suspect the authors are in favor of weakening the First Amendment. Of course private companies are free to do what they want, but to suggest that the government itself start clamping down on “harmful speech” (apparently defined by the authors) is completely misguided. False advertising of products is already prohibited, as are actions like harassment in the workplace. Beyond that—beyond the courts’ largely settled construal of the First Amendment—we should not go.