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Why does The New York Times want you to have less free speech?
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Why does The New York Times want you to have less free speech? 

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Today, The New York Times continued its mission of trying to eliminate free expression for everyone that isn’t part of the elite media family. In an authoritarian and dangerous article called “Free Speech Is Killing Us,” Andrew Marantz argues that free speech is not, in fact, for just anybody. Forgetting, of course, that it’s for everyone.

After all, Marantz has spent “the past few years embedding as a reporter with the trolls and bigots and propagandists who are experts at converting fanatical memes into national policy.” So he “no longer [has] any doubt that the brutality that germinates on the internet can leap into the world of flesh and blood.”

You see, Marantz is basically a hero. It’s a miracle that he managed to make it out alive. He actually had to hold his nose and spend social time with unwashed, uncivilized people he thinks are deplorable. He’s basically the 2019 version of a SCUD stud. 

Marantz boldly explains to us regular folk why we should be okay with the erosion of our rights to expression and why corporate censorship is a “good thing”:

Using “free speech” as a cop-out is just as intellectually dishonest and just as morally bankrupt. For one thing, the First Amendment doesn’t apply to private companies. Even the most creative reader of the Constitution will not find a provision guaranteeing Richard Spencer a Twitter account. But even if you see social media platforms as something more akin to a public utility, not all speech is protected under the First Amendment anyway. Libel, incitement of violence and child pornography are all forms of speech. Yet we censor all of them, and no one calls it the death knell of the Enlightenment.

The argument that the First Amendment doesn’t apply to private companies, that censorship can only be perpetrated by government authorities, is disingenuous in a society where, as Chief Justice Earl Warren noted in his opinion on the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker (1967), “increasingly in this country, the distinctions between governmental and private sectors are blurred.” 

This is even truer now than it was in under the Warren court, and it behooves individual citizens to assert their rights. There is a blurring of the lines between government and corporate authority in that so much of our daily activity is facilitated by companies and not government entities. However, privatization does not diminish our rights, and the rights of the corporation to their policies etc. do not outweigh those of the individual. 

The terms of service of social media platforms are often applied subjectively, and getting out of social media jail can be tedious or impossible, given that there’s no one on the other side to communicate with. Twitter and Facebook may have very public facing CEOs in Jack Dorsey and Mark Zuckerberg, respectively, but that doesn’t mean anyone is picking up the phone to speak to users about their complaints, confusions, or deplatformings. There is certainly no guarantee of anyone’s “right” to a social media account, but until the standards are applied along clear, understandable, objective guidelines, every account but Twitter’s illustrious “blue checks” are in daily danger of violating shifting terms.

Libel is defamation, and defamation is not free speech. This was determined by the Supreme Court in New York Times Co. v. Sullivan in 1964. This was a case where L.B. Sullivan, police commissioner of Montgomery, AL, sued the New York Times over an ad they allowed to run which contained misinformation about circumstances of police conduct in Montgomery. The New York Times had not fact-checked the ad before running it. Sullivan was awarded damages, but this case also set the standard for libel. A defendant would be required to prove malice before libel could be determined, and damages awarded. This prevents people from simply claiming libel and defamation because it requires that the evidentiary onus be on the accuser. Libel is not a frequent charge, the burden of proof is high, and one hopes The New York Times is better at fact-checking now than they were before Sullivan.

Incitement to violence, or the “imminent lawless action test,” is still being sorted out. The cases of Schenck v. United States (1919), Gitlow v. New York (1925), Whitney v. California (1927), Dennis v. United States (1951), Yates v. United States (1957), Brandenburg v. Ohio (1969), Hess v. Indiana (1973), and Stewart v. McCoy (2002), show that the Supreme Court, and the American public, are trying to figure out where to draw the line between an incitement to violence such that there would be jurisdiction over preventing it, and free speech by individuals and groups who are working hard to make their points and wishes heard. Marantz glosses over the 100-year-long controversy, which is undoubtedly still in flux.

Child pornography is not free speech because that which is being done to children in the images and videos is illegal, and the videos and images are evidence of a crime. This is the difference between legal pornography featuring consenting adults, which is protected under free speech laws, and criminal sex abuse against children. Child pornography is not protected speech, it is not free speech, it is a scourge on children, the internet, and any publication, hard drive, or messaging service that contains these images. The New York Times had a recent and tragic unveiling of just how many images containing child pornography circulate on the internet, in excess of 45 million, and the struggle of law enforcement to contain it. 

Maratz goes on to argue:

Congress could fund, for example, a national campaign to promote news literacy, or it could invest heavily in library programming. It could build a robust public media in the mold of the BBC. It could rethink Section 230 of the Digital Millennium Copyright Act — the rule that essentially allows Facebook and YouTube to get away with (glorification of) murder. If Congress wanted to get really ambitious, it could fund a rival to compete with Facebook or Google, the way the Postal Service competes with FedEx and U.P.S.

To put it simply, this is nonsense. There is no way to “protect unpopular speech” while simultaneously “mitigating” the “risk” of unchecked speech. If you are checking speech and mitigating the risks of it, you are censoring. You are violating free speech.   

The 2019 federal budget had funding for libraries that remained steady or increased. The Department of Education received funding for educational programs within libraries. Library advocates were happy with the budget. What sort of programming is Marantz advocating for? There have been many ruffled feathers over library programming that caters to special interests and does not actually meet the educational needs of children. 

Who would decide what this programming entails? Would there be a commision set up to determine what sort of programming libraries need in order to ensure a better informed public? If so, who would be on this commission? What would their perspective be? How soon before it was tagged partisan in some way, or not inclusive enough, or discriminatory, or simply a waste of money?

There’s a reason the US doesn’t have “robust public media” in the form of the BBC, and it’s because of that pesky First Amendment that Marantz is railing against. Americans prefer when the government keeps its dirty fingers out of the press. Americans also prefer when the press doesn’t tell them what they can and cannot say in real life or online.

Section 230, a law written in the 1990s, at the dawn of the internet age, was about shielding burgeoning internet platforms from liability for user content. Changes to the law are unlikely to make any substantive changes to practice, because the monolithic social media platforms will be able to simply alter their terms of service in order to still do as they please with regard to users, data, or ejections from their town-square replacing platforms. 

Senator Elizabeth Warren is calling for a breakup of the tech giants in order to make room for new competition in the industry, per antitrust regulations. That would be a more practical way of addressing some of these concerns because companies could engage in competitive practices to draw users to their platforms, rather than the long arm of government dictating corporate practices.

Other nations have enacted regulations and taken pledges, such as the Christchurch Call, to restrict, regulate, and remove unseemly content from the web. This kind of far-reaching government interference may sound like a good short term solution, but an infringement on speech rights is not something that can be done simply because there’s objectionable content online. That there are numerous Supreme Court cases trying to figure out the line between speech that incites violence and that which is protected exemplifies just how dicey and essential this conversation is, and how careful we should be in trouncing on speech rights.

The concept that the federal government of the United States should have its own social media platform or search engines, to rival Facebook, Twitter, or Google, is entirely bats. Does anyone really want an email address with a backdoor into the State Department? This is the fear that the US Feds have with regard to the use of Chinese tech, that it has a hidden opening that can be accessed by Chinese officials for purposes of spying. It’s not a totally crazy concern, and it’s one that any and every American citizen should have with the idea of a state-run search engine, or social media platform. 

While for sure there is no privacy on existing social media, and users should be aware of that with regard to every single thing they post, there are still massive objections both in the corporate realm as well we among individuals to tech companies handing over user data. Libraries won’t do it, phone companies won’t do it, and neither should tech companies. Exactly who would the government petition to get a warrant for user data on its own platform? Itself? Marantz’s comparison to competitive mail carriers, FedEx, UPS, and with the US having its own US Postal Service is a little backwards. The Pony Express was launched way before its rivals and is not doing so great since those two package giants broke the USPS monopoly.

But Marantz has even more solutions: 

Tomorrow, by fiat, Mark Zuckerberg could make Facebook slightly less profitable and enormously less immoral: He could hire thousands more content moderators and pay them fairly. Or he could replace Sheryl Sandberg with Susan Benesch, a human rights lawyer and an expert on how speech can lead to violence. 

Social media companies have shown how quickly they can act when under pressure. After every high-profile eruption of violence — Charlottesville, Christchurch and the like — tech companies have scrambled to ban inflammatory accounts, take down graphic videos, even rewrite their terms of service. Some of the most egregious actors, such as Alex Jones and Milo Yiannopoulos, have been permanently banned from all major platforms.

Platforms like Facebook and Twitter are already facing a great number of challenges both from private individuals and from Congress for their demonstrably and admittedly liberal bias. Antitrust legislation may be inevitable because these platforms are, when it comes down to it, monopolistic, and If you don’t have a voice online, then you don’t have a voice. It’s painfully obvious to see that what starts with the censuring and elimination of fringe voices like Jones and Yiannopoulos quickly erupts into a censorship free-for-all, with mainstream voices like gender critical feminists like Meghan Murphy and prominent psychologists like Jordan Peterson being labelled as “alt-right” and having their voices silenced as well.

What moralistic scolds like Marantz and his kind want is control. They want to monitor your speech so that they never feel uncomfortable, and so that only the views they agree with are heard. They yearn for fiats. They are certain that if they just shut you up, then some sort of social justice utopia will surely emerge. What they never seem to understand is that they’re next. For some reason, they always assume that they have immunity from the mob. Wise observers of our culture over the last few years know that no one is safe. Marantz and The New York Times are free to rail against free speech, but it is unwise to do so. Free speech is one of those sacred, fundamental rights that, once taken away, is impossible to get back. 

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