 Nadine Strossen, the eminent New York University law professor and former president of the American Civil Liberties Union, has an impeccably liberal resume. She has, nevertheless, braved the cancel police to speak often at Federalist Society events. And each time she does, she proves that liberals and conservatives can have fruitful exchanges of ideas.
At a Monday Federalist Society panel, Strossen noted the tendency among many to “labor under the illusion” that speech can be regulated. She made a cogent argument that the whack-a-mole strategy against vile speech is often self-defeating, describing “some government censorship that is illegal and unconstitutional, including how certain protestors have been treated in various cities around the country,” as well as “some executive orders that Donald Trump issued that were unconstitutional.” She argued, however, that “a very free speech-sympathetic Supreme Court across the ideological spectrum” has contained threats to free speech by government. So is there a bigger threat to free speech than government? “By and large, the major real-world threat to free speech now is not coming from the government,” Strossen said. “It is coming from private-sector actors including the dominant online companies – Google, Facebook and Twitter.” She quickly noted that many politicians don’t understand that the First Amendment applies only to the government. No one has a free speech right to be on Facebook or Twitter, which have the right to determine “who’s on and who’s off.” But Strossen said there is a “cultural” environment at stake in the content moderation policies of these social media platforms. “Meaningful free speech goes beyond just the letter of the First Amendment, that is necessary but not sufficient for a real meaningful free speech culture,” Strossen said. “If we don’t have meaningful free speech on these platforms that are now dominating not only private discussion but the civic discourse that is the lifeblood of democracy … we might as well not have it [free speech] at all, and that’s a real danger not only to individual liberty, but to democracy.” We must, she argued, “look for alternative ways to constrain the power of the dominant platforms.” When asked about the PACT Act, sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD), which modifies Section 230 of the Communications Decency Act, Strossen said she found the bill “very promising,” but is waiting for further study before “completely signing off on it.” The PACT Act, however, did tick the boxes she wants to see in legislation – transparency, notice of removed speech, the right to appeal the removal, and the accountability these elements create. “These are procedural type protections that don’t exist now that I think are really important and could really be imposed by government in the nature of consumer protection laws,” she said. “Although they do not directly affect content moderation policies, once those policies are brought to light and scrutinized – you know the famous statement that sunlight is the best disinfectant – I think there will be a lot more pressure on these platforms to be more fair and even-handed in how they enforce these standards.” Many free speech advocates would object, saying these regulations are intrusive and mandating transparency of content moderation is the antithesis of the First Amendment. Everyone agrees, however, that the current national dialogue is being distorted by the algorithms of the major platforms. Comments are closed.
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