Two distinguished law profs: the U.S. should adopt the Chinese model of speech restriction

May 1, 2020 • 10:00 am

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.

The authors:

Jack Goldsmith (source)


Andrew Keane Woods (source)

65 thoughts on “Two distinguished law profs: the U.S. should adopt the Chinese model of speech restriction

    1. Quite, it’s a very slippery slope.

      I do think that the online world has contributed to political polarization and to some very unpleasant speech. However I don’t think that monitoring and censorship is the way to counteract it. Every time a new communication medium comes along there are issues and eventually we learn to deal with them.

  1. This line jumps out

    “…. – in a world of serious and growing harms resulting from digital speech.”

    What do they mean by this? As against the harms from normal speech? As against the harms from suppressing speech?

  2. Badly written, I agree. Most seriously, the authors manage to conflate and confuse their subjective opinion about the desirability of speech control, with statements of fact or potential fact, such as their assertion that the general trend toward speech control will not abate. It is not clear whether they are lauding greater control of internet speech, or simply arguing it is inevitable.

    1. Reading his bio on Wikipedia, particularly about his memos justifying torture and domestic spying by the Bush-Cheney administration, it seems that Jack Goldsmith is no friend of the Bill of Rights.

      1. Trump has done more damage to the credibility of this nation than every other President combined, but we should never forget the institutional damage done by W.’s administration. I’ve heard many a person say they now long for the days when W. was President, and I understand what they mean — I also long for the days when we thought W. seemed “unpresidential.” But people forget far too easily just how much damage he did to our institutions, our norms, our role as a force of morality in the world, and the foundational principles of our democracy. Thankfully, Trump is too stupid to do this kind of damage. The damage caused by Trump is largely public and symbolic (though no less important).

        1. I think Trump would have no problem doing the kind of damage Bush did. After all, Trump is doing his own kind of torture at the border and I’m certain he wouldn’t at all mind torturing anyone who talks out against him if he could get away with it. He talks often about jailing reporters and it isn’t all “satire”.

          1. Absolutely. Like I said, he’s just too incompetent/doesn’t care enough about policy to do the institutional damage perpetrated by W. and Cheney.

        2. Sadly, we must also blame Obama for not holding the war criminals of the Bush administration responsible.

          Really this has always been going on. In my lifetime there was Reagan with his secret war in Nicaragua and his smuggling cocaine into the US to finance it, and before that we had Nixon sabotaging negotiations and carrying on his own secret wars. Before that, we had Eisenhower’s CIA overthrowing the democratic government in Guatemala because it leaned left and stepped on United Fruit’s toes. I strongly suspect that the US has always been this way.

          Also, I think some of these things were far worse than anything the current inept adminsitration has done. Those earlier adminoistrations knew how to keep secrets and had bold, ruthless plans. I think Trump has been relatively isolationist, whereas many of the post WWII presidents individually caused the murders of tens of thousands to hundreds of thousands of foreign civilians (Eisenhower’s score is above 100000 just in Guatemala).

          1. Even before Guatemala, Ike’s boys the Dulles brothers were busy orchestrating the overthrow of the democratically elected PM of Iran, Mohammad Mosaddegh, thereby turning the government over to the Shah.

            Many of our problems in the region can be traced back to those hijinks.

    2. Yes, this is why I thought the authors might change some language in the article. The article is long and largely descriptive, but just a handful of sentences reveal that they do, in fact, want the internet censored by the government. It would only take a few minor tweaks to remove their own views. It seems like they were trying to hide their views by making the article almost completely descriptive, but lines like, “…governments must play a large role in these practices to ensure that the internet is compatible with a society’s norms and values” end up tipping their hand. Whose norms and values? What decides what “society’s” norms and values are? I have a feeling those norms and values line up with those of the authors.

  3. “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.”

    I think you captured it well with this sentence. Mostly the article summarizes internet censorship and monitoring pretty accurately, IMHO. Where it goes wrong is its authors threw in a few lines which seem to be intended solely to be sensational.

    There’s a very real tension between censorship and the need for privacy and security. Allowing people to peddle fake medical advice and political conspiracy theories, without giving the public adequate tools to tell them from legitimate messages, is a bad thing. But dealing with them is censorship, another bad thing. Tracking people in order to deal with COVID-19 is a good thing but tracking people without contraint is a bad thing. These are very real tensions that society and technology are sorting out. Where it will settle is anyone’s guess.

    It is reasonable to fear that censorship here might approach China’s draconian levels but I see no real sign of that happening. What these authors say about China is just red meat to gain more clicks.

  4. The writers responded to some of the criticisms at the Lawfare blog, and their defence was that the article was a *description* of what is happening, rather than a *prescription*:

    “This is a description of where we have been headed and a prediction, not an endorsement, but we don’t want to run away from this element of our thinking. The United States is not China and is not going to become China, but it undoubtedly has been on a path to greater government involvement in digital networks. We do not know where the resting point of the current trendline is, or whether or how constitutional values will have to adjust. The point of our piece was to raise these questions, not answer them.”

    I think their original piece strays into prescription, as does their latest, to be honest (note the “…but we don’t want to run away from this element of our thinking” line above). Some things they raise are serious concerns, such as state actors interfering with Western democratic processes, but I’m not sure what exactly they think should be done, if they’re not running away.

    1. I think what’s going on with the internet is an example of what’s happening with capitalism and democracy in general. They are mechanisms that depend highly on easy access to information and understanding. For capitalism to work to our advantage, a buyer needs to be able to tell two products apart. For democracy to work, voters have to be able to understand the laws under consideration, the problems they intend to solve, and their likely effects. The world has gotten so complicated, and the internet has made information so cheap to communicate, it has made it harder and harder for people to tell good information from bad and make good buying and voting decisions, allowing them to be easily fooled and manipulated.

      I don’t see any easy solution. China’s draconian paternalism works in some ways but is abhorrent in others. I suspect we’ll have to make more kinds of lying illegal but it won’t be easy.

      1. “I suspect we’ll have to make more kinds of lying illegal but it won’t be easy.”

        IIRC, in the last few years a bill to outlaw lying in political campaigns was defeated in the U.S. Congress.

  5. My take is that they are more focused on the need for monitoring than on whatever control measures might follow that. The main point being that with a global digital communication system, government is going to have to take a look at everything everyone is posting, to see if laws are being broken. So privacy is not really going to happen.

  6. 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. remains equally accessible – both as readers and as speakers – to people of all norms and values.

    There, that’s better.

    I do worry that the public/private separation has to be somewhat rethought. So much of our social interaction that used to be in public spaces is now done in private spaces. This has a truncating effect on freedom of speech. If everyone is talking on facebook, then facebook is the de facto marketplace of ideas.

    I’m not sure how to solve this, except to say that if a private, corporate-run-for profit web application looks like an open form and acts like an open form, then maybe the law should protect it as an open forum and not let the owner censor speech on that forum based on ideological content.

    1. I’m in agreement with you. The “public forum” is no longer street corners, town halls, etc. The internet has become the almost exclusive public forum of our times and for the foreseeable future, and it should be treated as such.

    1. Might this explain all those unusual words at restaurants, public ways, toys, etc.? Messages in bottles or S.O.S. of sorts?

        1. For anyone who hasn’t read (or heard) it, I recommend that you check out “Ladle Rat Rotten Hut” by Howard L. Chace. I believe it was in his book, Anguish Languish.

          We need wordplay and puns in our language as it is becoming more and more humorless.

    2. I haven’t thought of this in years, but a good friend of mine’s father was career army, and spent a lot of time at foreign postings. He had a friend from China who wrote to him (this would have been before the mid-70s), and said at the end ‘I hope they don’t censor this.’ My friend’s father swore that when he got it there was a note in it which read “There are no censors in China.”

  7. Of course private companies are free to do what they want, …

    I’m not so sure they should be. Companies with large market share (Facebook, Twitter, etc) should be required to adopt first-amendment free-speech standards.

    It is accepted that near-monopoly companies can be regulated for the public good, and this is an example.

    1. Private companies are in a tough spot, not that I have much sympathy for them. Can they keep it rated “G” if it means prohibiting content? Can Facebook remove videos of murders? One man’s racism is another’s free speech. They are under pressure to censor. I don’t see any of the big social media companies arguing otherwise. It doesn’t help that people like Zuckerberg seem to incline towards censorship to begin with.

      1. I am not here to defend Zuckerberg but my impression of him is exactly the opposite. He is not interested in censorship. Instead, he allows all kind of garbage on Facebook because his company makes money on it. Some have begged FB to prevent fake political news but they refuse to do it.

        All of this is really beside the point. Regardless of what Zuckerberg believes, it is hard for them to draw the line between bad stuff and good stuff. Zuckerberg emphatically does not want to be the one to draw the line and would prefer that society and/or governments figure it out. Regardless of Zuckerberg’s motivations, I think this is right but society and government doesn’t want to do it either and pushes back on FB.

        1. Yeah, my take is that his inclination is to do it, but that he would prefer that the government give him cover for it.

  8. 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.

    Yeah, that was my take, too. The first two paragraphs of the article present a reasonably cogent lede, but the prose in the rest of the piece — where the two professors present their argument (if, indeed, an “argument” it may be deemed) — is murky and obscure, to the point that I’m unsure what it is that the Good Perfessers are actually proposing.

  9. Two things come to mind.

    – The totalitarian impulse =/= a stupid or uneducated person.

    – There is an old saying to the effect that some ideas are so bad it takes a special education to think them.

    1. As to thing two, you may be recalling Orwell’s statement in Notes on Nationalism that, “One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool” (often paraphrased as “Some ideas are so stupid that only intellectuals believe them”).

  10. Paul Topping comments: “the internet has made information so cheap to communicate, it has made it harder and harder for people to tell good information from bad…” The same
    could have been said of radio and television.
    In fact, in the US both media were turned mostly over to the advertising industry, whose very reason-for-being is to erase the distinction between good information and bad.

    This history immediately suggests a possible partial remedy. In radio and television it is public broadcasting, like BBC, CBC, and their counterparts elsewhere. Maybe we need public internet agencies independent of Facebook, Twitter, etc., and also at least partly independent of the State.

    1. I am not sure the Beeb is a model of detached independence. I’ve seen complaints by British conservatives, as well as by atheists. At the end of the day, it’s as ThyroidPlanet suggested to kick us off: Who guards the guardsmen? All individuals in a group will have their own opinions, and if all of them agree that certain speech is beyond the pale, then it will be supressed. The BBC over the years has only reflected mainstream opinion. I welcome input from our siblings across the pond.

      1. Auntie Beeb is continually accused of bias by both sides of the political divide, so she’s probably getting things about right.

    2. TV and newspapers used to mostly have a tradition of trying to tell the truth. That facade was gradually chipped away by news forced to be supported by advertising, the internet, the introduction of political radio talk shows and networks like Fox News. The potential for all these things has been there for a long time but it took time and technology for it to become the mess it is today.

      I’m all for freedom of speech but not the freedom to tell lies. There are now too many ways to destroy society beyond yelling “fire” in a crowded theater. Obviously, stopping lies is censorship and the opposite of free speech. Still, I think we’re finding out that totally free speech is still going to allow for some very destructive speech. We don’t want to stop someone from complaining about our institutions but we also don’t want people selling fake COVID-19 remedies where it is impractical for people to tell they’re fake. Us science types can talk about people becoming more educated and rational consumers but we also know that’s not going to be enough. I’m consider myself fairly well educated and science oriented but I still feel victimized by misinformation from time to time. Even if I spent the time following down every story and product, why should I have to spend so much time doing it?

      1. It really is tricky. Philosophically, I’m pretty close to being a free-speech absolutist, but then again, Churchill’s Conjecture (A lie gets halfway around the world before the truth has a chance to get its pants on) and Barnum’s law (There’s a sucker born every minute and two to take him), make this a very potentially dangerous, and Kahneman’s work (among others) demonstrates how unreliable the general public can be as assessors of the quality of information. But then again, those who would be in charge of regulating speech are all subject to the above problems as much as (and often seemingly much more than) the average person. Maybe Plato was right…and we need to set up some philosopher kings.
        Just kidding.
        I have a hard time arguing with Jonathan Edwards, who sang,
        “He can’t even run his own life,
        I’ll be damned if he’ll run mine.”

        1. It’s No Pants Day (according to this morning’s Hili Dialogue), so the lie has less of an advantage today. Though I think Churchill said “boots on”.

        2. When we think of “free speech”, we are thinking of letting people express political and social opinions that disagree with those of our institutions. That’s good free speech. When someone makes up a plausible conspiracy theory about a political opponent, that’s bad free speech. There’s obviously a grey area here but that doesn’t mean we should just give up. There are a lot of possible mechanisms to deal with bad information. I suspect we’ll settle on some combination of them but it won’t make everyone happy all the time.

    3. … “the internet has made information so cheap to communicate, it has made it harder and harder for people to tell good information from bad…” The same
      could have been said of radio and television.

      I think that precise point was made as to radio in both Brave New World and Nineteen Eighty-Four — and, in the case of the latter, as to proto-tv, and by Huxley as to television itself in his essay “Brave New World Revisited.”

        1. “Erudition,” Jez? More like the flotsam and jetsam of an (ongoing) misspent youth. 🙂

      1. Damn, ‘Z’ one of the first docudramas (?) recounting events in Greece just before the coup by the Colonels, installing a military junta. As I remember it, a great film widely shown and acclaimed in Europe.

  11. I have long been a student of Free Speech law and and have written a fair amount about it. I’ve come to the conclusion that there’s only one really strong reason for protecting free expression, namely, there’s nobody out there that we can trust to be the final arbiter of truth or to decide for us what we should and should not hear (see, etc.).

    Some people think we can trust the government (i.e., for the time being, Trump) to have that power. But our nation’s protection of free speech is based on the assumption that government functionaries sometimes abuse their powers, not on the assumption they do not. The reason our Constitution contains a Bill of Rights is that the Framers did not trust government functionaries to always do the right thing.

    As for monopolistic private-forum owners: The Supreme Court once held that private owners of de facto “public” spaces had very limited power to control what people said in those places. Alas, that case was overturned decades ago.

  12. DARPA was looking into using collecting data from internet sources such as Facebook for military purposes. Whether they actually used it, I don’t know. But we do know of Cambridge Analytica collecting internet data that was used by Russia and other countries to slant opinions and affect election outputs in other countries. The internet has not only been used to entertain and sell, but it has become intentionally weaponized.

    I don’t think we can totally blame misuse of the internet to disseminate slanted or false information for whatever purposes on the internet providers, without also looking at the education level of our populace. Why are we/they not more well read and discerning about internet purveyed “facts”? Why are we not investigating further on our own? Why are we not accepting data and facts from reputable sources only?

    1. “Why are we not investigating further on our own? Why are we not accepting data and facts from reputable sources only?”

      Partly, it’s due to the time it takes. Plus it is impossible to investigate some things on one’s own. We can rely on the reputable sources, as you suggest, but then this forgoes the democracy of the internet. The fact that not everything goes through the “reliable sources” is often a good thing. There has to be some middle ground.

      1. You have a point. However, it would still seem to me that it behooves us to verify sources of information in order to ensure its’ validity. Reading or viewing multiple sources of information helps with this. Noting references and reading them also is a good practice. It used to be that the news media could be trusted to do this for the reader. That hasn’t been the case for a long time. And, now that so much of our “so-called news” is presented on the internet, it is less trustworthy. Add to that, people who use tweets and other such social media to purvey or absorb “information”, too many of us have become yet more ignorant parrots.

  13. Paul Topping is concerned, as I am, about the freedom to tell lies. But, to return to
    the economics of the subject, what are we to make of commercial advertising? It is not only based on distorting information, but it also supports the dissemination of all manner of unbelievable baloney.

    I used to be connected with a non-commercial FM station, and never listened myself to any commercial channels. Recently, I have been listening occasionally to commercial stations and was gobsmacked. Not just at incessant, mind-numbing commercials, but at the amount of sheer baloney that some of them broadcast day and night—and on secular not religion stations.

    The other night, one such station went on and on about a woman whose fibromyalgia symptoms were cured by a reptilian alien—this on a program that often features aliens, ghosts, angels, etc. etc.. The 1st Amendment permits all this fakery to be broadcast, but at least other channels with other standards exist. Or, to put it differently, there is much, much worse than the Beeb.

    1. If we develop something that helps smother the outright lies, I see no reason that it shouldn’t be applied to advertising.

      Although it may not be directly applicable, I seem to remember Germany has some strong laws that restrict commercial advertising. For one thing, they don’t allow one company to make comparisons of their products to those of competitors.

      Of course that won’t help with reptilian alien home remedies. It has always bugged me that the government doesn’t regulate the health supplement industry. Still, if some kinds of lying were illegal, a lot of this would undoubtedly disappear.

  14. I think sentences like this one are misleading:

    “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.”

    This essentially says that ‘having rules’ is equivalent, so scrap the details. The huge difference between China and the US is the context in which this takes place. Getting your Facebook account banned because you posted conspiracy theories is in a different universe than being subjected to authoritarian punishments because you criticized the government or made the wrong person look bad. Mike Zuckerberg isn’t going to drive to your house in a van and disappear you for making fun of him, for goodness sakes. Not to mention, I think China limits what portions of the internet people can even access, which we don’t do in this country.

    What I don’t understand is the tack they’ve taken here. Typically, people who want free speech restricted emphasize how of course the West is imminently more free and liberal than authoritarian regimes, but we can’t have outright anarchy. Then, in response, those opposed accuse them of being wannabe-totalitarian-Communists. In this article they seem to start by saying “Authoritarian regimes have it right, and let’s gloss over any differences there might be between us and them.” Huh?

    As for whether there will be greater monitoring… I think free speech will hold for those who can find a totally independent platform, although that will increasingly become the online equivalent of being a guy on a street corner shouting.

  15. If you list all the bad things you see in our democracies one could falsely believe that democracy is the worst possible political system ever. This is not true (at least for humans).

    I think Goldsmith + Woods, like most people, want a predictable world with a happy government. Currently this can only be done at the cost of individual happiness.

    As Schopenhauer a while ago said “The two enemies of human happiness are pain and boredom”. Everyone forgets about boredom.

    Future advances in technology could make people, at least in theory, feel happy and free. Until then we have to deal with an imperfect world.

  16. Dear Prof
    I followed the both links to original article and I did not find it?
    They were taken away?


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