For those of us who spent the intervening decades fretting about government suppression of speech – with some justification, as Lord Leveson and his ‘dab of statute’ came close to ending 300 years of a free press in Britain – it may be time to take stock. The fact is that it is many years since the government even attempted to suppress political writing. The D-notice system that once imprisoned journalists who disclosed national-security matters was made voluntary almost 30 years ago. I should know, as after my former publication published parts of the Snowden files that the Guardian had promised not to, we received a visit from the retired one-star general who heads the D-notice committee. It was a clubbable visit, and he even bought the staff drinks in the pub. In a world of Pastebin, injunctions don’t work.
There’s a temptation to treat every attempt at revisiting the 1990s bargain between technology companies and the law as a hand grenade thrown into the bunker of free speech. Defenders of free speech are wise to be wary of clumsy and censorious measures being smuggled in as the 1990s bargain is revisited. But the harms created by that now obsolete bargain remain real, and a refusal to engage simply guarantees an endless conveyor belt of earnest but very flawed draft legislation. Trump wanted to tear the whole house down – scrapping S230 altogether – but the Department of Justice last year signalled a sensible path out of the morass by narrowly defining the harms, and affirming the responsibilities not to censor arbitrarily. Supporters of free speech should do the unthinkable, and engage.