This is a topic that's been kicking around in my brain for a while, and a comment in the Greenwald thread made me think maybe it would be an interesting topic. Apology in advance: this might be a bit of a Sklansky OP :P
But I have two thoughts, which might even be mutually contradictory:
1) Has technology changed so much that we should re-think the costs and benefits of various kinds of speech and speech restrictions?
I'm not an historian and I haven't put enough effort into verifying this, but my perception is that it's far more difficult for the government to completely control speech than it was in the 18th century (counterpoint: China?), and at the same time far easier for motivated individuals or groups to find a very large audience (Youtube, etc.) So in the 18th century I might think that the benefit of very strong limits on government control of speech -- especially political speech -- far outweighed the costs in terms of allowing various bad actors to influence the political process.
But is that still true? Do the benefits of protecting free speech rights for Fox News outweigh the social costs of Fox News? I'm thinking mostly of protecting the right to say things that are very demonstrably false or highly misleading, rather than the right to advocate for one set of values over another. Should there be more limits on the right to say things deceitfully?
A 2016
Atlantic piece put it like this:
Quote:
A statute in Ohio, for example, set up a board to review campaign claims and made it a crime, punishable by up to six months in jail, for any person to make any false statement about a candidate or an election.
A federal court struck the law down in 2014—quite rightly. That’s not because there’s any “constitutional value” in false statements of fact but because the cure—government control of what can be said in politics—is far worse than the disease.
I'm no longer sure that's really true. There is probably a similar argument for "hate speech" although I think accuracy and truth might be more important.
2) Does the 1st amendment's exclusive focus on government regulation of speech still make sense?
The comment in the Greenwald thread that prompted this post was about Alex Jones, but I would also refer back to
Cloudflare's statement about dropping the Daily Stormer, which I thought made an interesting argument:
Quote:
Freedom of Speech < Due Process
The issue of who can and cannot be online has often been associated with Freedom of Speech. We think the more important principle is Due Process. I, personally, believe in strong Freedom of Speech protections, but I also acknowledge that it is a very American idea that is not shared globally. On the other hand, the concept of Due Process is close to universal. At its most basic, Due Process means that you should be able to know the rules a system will follow if you participate in that system.
Due Process requires that decisions be public and not arbitrary. It's why we've always said that our policy is to follow the guidance of the law in the jurisdictions in which we operate. Law enforcement, legislators, and courts have the political legitimacy and predictability to make decisions on what content should be restricted. Companies should not.
So I said these two ideas might be in conflict because on the one hand I'm thinking about shrinking free speech protections and on the other of expanding them to encompass actions of private companies. But to some extent that's because I think that if it's harder for
governments to suppress speech now than it used to be, that's in large part because
corporations have become enormously more powerful than they used to be.
Don't get me wrong, I think there are really good reasons to shut down Alex Jones and the Daily Stormer. Those are entirely defensible decisions and per (1) I might even argue that it would be better if the government could do it. But I'm still somewhat uncomfortable with corporations as quasi-governmental actors, although that's a much bigger problem (cf. "late stage capitalism" :P) than just a question of speech protections. But that is the point of thinking about due process as being more important than speech.
I am curious what people think.