NY Times Opinion: It's time to take a second look at 'free speech' (Update)

The NY Times published an opinion piece today with the not-very-subtle title “Free Speech is Killing Us.” The subheading clarifies that this is going to be another rant about social media: “Noxious language online is causing real-world violence. What can we do about it?” That last part is really what this is about. Author Andrew Marantz wants to explore solutions to the problem of free speech online. I’ll skip over most of the justifications and get right to those solutions, which seem to mostly revolve around new government efforts:

The Constitution prevents the government from using sticks, but it says nothing about carrots.

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.

You can probably imagine what a national campaign for news literacy put together by Nancy Pelosi and Chuck Schumer would look like. I think I’ll pass on that. A robust public media would, I guess be PBS and NPR on steroids. The BBC produces a lot of non-news programs. Would we somehow be better off if PBS were producing the next Marvel TV show? I’m not sure how that would help.

Marantz seems to envision the creation of a new government-funded social media site to compete with Facebook. Wouldn’t it be harder to deny free speech rights on such a platform given that it’s a taxpayer-funded project and therefore arguably subject to the First Amendment in ways Facebook is not? Could you even ban taxpayers from a taxpayer-funded social media site? I’m thinking that would be difficult to do.

The alternative he offers is for private companies to step up by banning more “inflammatory accounts.” Having exhausted his suggestions in a few paragraphs, Marantz then turns to his expert witness, a Berkeley professor named John A. Powell:

“We need to protect the rights of speakers,” John A. Powell, a law professor at the University of California, Berkeley, told me, “but what about protecting everyone else?” Mr. Powell was the legal director of the American Civil Liberties Union in the late 1980s and early 1990s, and he represented the Ku Klux Klan in federal court. “Racists should have rights,” he explained. “I also know, being black and having black relatives, what it means to have a cross burned on your lawn. It makes no sense for the law to be concerned about one and ignore the other.”

Mr. Powell, in other words, is a free-speech advocate but not a free-speech absolutist. Shortly before his tenure as legal director, he said, “when women complained about sexual harassment in the workplace, the A.C.L.U.’s response would be, ‘Sorry, nothing we can do. Harassment is speech.’ That looks ridiculous to us now, as it should.” He thinks that some aspects of our current First Amendment jurisprudence — blanket protections of hate speech, for example — will also seem ridiculous in retrospect.

Something about this sounded familiar to me. Looking back, I realized I’d written about a very similar piece once before, one which the same author had written for the New Yorker last year. That piece made almost the same argument and also featured John A. Powell as an expert arguing for more limits on speech:

“No one is disputing how the courts have ruled on this,” john a. powell, a Berkeley law professor with joint appointments in the departments of African-American Studies and Ethnic Studies, told me. “What I’m saying is that courts are often wrong.” Powell is tall, with a relaxed sartorial style, and his manner of speaking is soft and serenely confident. Before he became an academic, he was the national legal director of the A.C.L.U. “I represented the Ku Klux Klan when I was in that job,” he said. “My family was not pleased with me, but I said, ‘Look, they have First Amendment rights, too.’ So it’s not that I don’t understand or care deeply about free speech. But what would it look like if we cared just as deeply about equality? What if we weighed the two as conflicting values, instead of this false formalism where the right to speech is recognized but the harm caused by that speech is not?”

As I noted at the time, Powell is a believer in the idea that speech is harmful. He wrote this in 2017:

The more we recognize that certain kinds of speech can not only offend but can cause mental and physical harm, and that the harm can be lasting, the more we will be able to properly protect the rights of all—not just of people to speak, but also of their very existence and right to survive and thrive.

As we’ve seen on college campuses, this creates an incentive for adults to behave like fragile snowflakes who claim they will be permanently damaged by words they find offensive. This is how we get safe spaces. More to the point, these ideologues will quickly claim what they really need is for the entire campus to be a safe space by banning anything they don’t want to hear.

There’s no arguing with this veto power over other people’s speech, no way to appeal it to reason. You can’t tell someone they aren’t being harmed. Harm is a personal declaration not subject to outside review. Once someone claims their “lived experience” makes your speech dangerous (to them or unnamed others), you won’t have the right to speak anymore.

Indeed, that’s always what these campus games are about: silencing whoever the far left disagrees with that day. Powell and Marantz can pretend that’s not where this winds up but only by ignoring lots of recent and compelling evidence to the contrary.

Update: If social media is killing us, it’s odd that violent crime is down over the past couple of decades. The Netscape web browser was launched in 1994. Facebook was started in 2004. Twitter in 2006.

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David Strom 8:01 AM on February 03, 2023