Free Speech and the Problem of Scale in the Digital Age

The principle of free speech was proposed at a time when there was very little movement between towns and extremely localized news was the norm. In such a context, it is easy to both let the chips fall where they may, embrace the principle, and prosecute the violent offenders.

But what about a time in which Parler readily “admitted” it could not address the number of violent posts while providing people who create/share such content with a megaphone that could reach millions at the touch of a button (which should be read as ‘would not’ because they certainly knew how to keep a lid on pornographic images/content)?

And what about a time when it is admittedly difficult for law enforcement to tell because people are shielded by anonymity and/or they can’t tell the difference between who is actually planning violent acts and who is just being threatening—unless, of course, you treat everyone who says stuff online that could be construed that way as violent?

We are—no, have been—at a crossroads. Such expression of simplistic notions of 'free speech' applied to ‘de-platforming’ are taking an old way of thinking about speech and applying it to a new context. No one imagined that one's ‘free speech’ could immediately have such a huge impact.

There is precedent for rethinking on this. When Napster emerged as a file-sharing site, it raised huge questions and arguments—and a reckoning—about copyright law. Companies said that people who uploaded content to these sites were violating copyright, but they and the file-sharing services were created (e.g. Napster) to facilitate sharing based on the 'private use' exception to copyright (i.e. sharing a book with someone, or using a blank tape/CD to copy their music was perfectly fine).

In principle, the private use exception was right on. But the private use exception never was meant to apply to sharing music and movies with hundreds of thousands of people. Music companies first attempted to prosecute individuals which was, in the end, impossible. Then they pressured for taking the sites down. But they also had informal agreements with YouTube that YouTube would take down any video with copyrighted music that they identified as problematic (which led to, for example, taking down videos of kids dancing to music uploaded and shared by happy moms because of the music in the background).

The argument that won out? The law clearly said that the private use copyright exception didn’t apply because of the SCALE of sharing and the damage it caused. But they didn’t go after people who were sharing; they went after the websites and took them down for being vehicles of it. Additionally, they stopped being assholes about taking down parent videos and YouTube stopped complying willy-nilly with their ridiculous requests. The same reckoning needs to happen with 'free speech'.

Just as people like Lawrence Lessig struggled with and proposed solutions to rethink copyright law in a digital age, AND provided tools for people to share while maintaining control of their copyright, we need to rethink the ridiculous black-and-white, simplistic notions of 'free speech' for the digital age. It was easy (or easier) for the Supreme Court to rule in favor of the Westboro Baptist Church in protesting funerals when they were in person (note: they still said guardrails of distance were acceptable, even for that 'free speech'). The point here is that it was and still is, in the traditional sense, free speech of a handful of protesters spouting vicious, vitriolic speech with signs and thus limited reach.

But what happens when vitriolic, hate-filled speech spreads online easily, with lies far outpacing the truth? When accounts can be created and amplified by bots to spread such things? As was the case in copyright law, it is the scale of damage that is the question. And we need solutions that recognize this without resorting to just laying blame at the feet of the tech companies who are trying, at the moment, not to be a party to overthrowing the U.S. government while at the same time enabling people to express themselves.