Guest Post: Internet Companies and the Balancing of Free Speech Interests

By Jonathan Peters

This is a guest post by Trevor Timm, an activist at the Electronic Frontier Foundation. He specializes in free speech issues and government transparency. Before joining the EFF, Timm helped the longtime general counsel of the New York Times, James Goodale, write a book on the First Amendment. He has also worked for the former president of the ACLU and at The New Yorker. He graduated from Northeastern University and has a J.D. from New York Law School.

Last week, Zeynep Tufekci, an assistant professor at the University of North Carolina and a fellow at the Center for Information Technology Policy at Princeton University, wrote a thoughtful and widely read essay titled “Free Speech and Power: From Reddit Creeps to anti-Muslim Videos, It’s Not *Just* ‘Free Speech.’” In part, it was a response to the outing of “the biggest troll on the web,” the moderator of Reddit’s “creepshots” forum and the now-defunct “jailbait” forum.

Tufekci’s piece is worth the read, and it tackles many complex subjects worthy of discussion. But here I want to address only one contention: “Speech, just like other freedoms, is an assertion of a right that naturally bumps up against rights of others—most commonly right to dignity, right to privacy, right to be free of violence and sometimes right to private property.”

Thus, she writes, where serious privacy violations occur at the expense of “vulnerable populations,” and where the speech is of little or no value (e.g., the images on “creepshots”), companies should curtail the speech to prevent harm.

To be clear, Tufekci is arguing for citizens to push major companies to take a more hands-on approach to banning this type of speech, and she states that she is not calling for government regulation. But as these large Internet companies become the world’s dominant platforms, this distinction becomes increasingly less important.

As law professor Jeffrey Rosen has written, “Lawyers at Facebook and Google and Microsoft have more power over the future of privacy and free expression than any king or president or Supreme Court justice.” And given how companies often look to the law for their baseline policies, it’s important to look at how U.S. law has traditionally handled the balancing of free speech and other fundamental rights.

Historically, First Amendment rights have prevailed over a variety of other rights that our country and culture hold sacred, and the Supreme Court has explicitly rejected ad-hoc balancing as a general approach to free speech. For example, since the Supreme Court’s holding in Nebraska Press Association v. Stuart, it has been presumptively unconstitutional to censor news coverage of criminal trials and to gag the press in order to protect a defendant’s rights to a fair trial.

First and Sixth Amendment rights also clashed in Richmond Newspapers v. Virginia, in which the news media were barred from covering a trial in order to protect the rights of the defendant, no doubt a member of a “vulnerable” group. The free speech interests prevailed. Similarly, First Amendment rights trumped jurors’ privacy interests when the press learned the names of jurors who had been granted anonymity.

Two other Supreme Court cases, Cox Broadcasting Corp v. Cohn and Florida Star v. BFJ, are probably the most analogous to the issue at hand. In those cases, the Court struck down civil statutes fining media organizations that published the names of rape victims, despite the good intentions of those statues: to protect the vulnerable from the powerful.

To support her argument, Tufekci points to an example of how the U.S. already uses balancing tests in one realm of free speech: “US copyright law tries to balance ‘free speech — the right to say whatever you want — against the right to ownership of ideas or creative products.” But in actuality it’s a perfect example of how balancing tests can get out of control.

Now, copyright owners argue, and courts agree, copyright infringement isn’t speech at all. It’s only a property right, and there’s no balancing to be done. But the example is still an apt one, because fair use blurs the line between free speech and copyright, and often one prevails to the detriment of the other.

And the victim is so often protected speech. There is no Internet law more restrictive of free speech in the U.S. than the copyright-enforcement mechanism of the Digital Millennium Copyright Act (DMCA). Just last week, a single takedown notice censored a million and a half blogs hosted by the textbook publisher Pearson.

That’s an extraordinary example, but there are countless others. Twitter’s yearly transparency reportshowed that only 38 percent of the takedown notices the company receives led to content being censored. Yet much of the rest of the content challenged—62 percent of it—would’ve been censored for a short period of time because the DMCA gives companies every incentive to side with the copyright holder.

Even if we had a hypothetical system better than copyright takedown notices, implementing balancing tests would lead to the curtailing of meritorious speech. Although the civil-liberties community values privacy above many other interests, other communities have different values. If we used balancing tests in serious privacy cases, what would stop companies from balancing in other cases? The obvious example is national security.

There was well-founded outrage in the free-speech community when the government pressured Amazon, Visa and Mastercard, etc., to stop doing business with WikiLeaks. The State Department argued that WikiLeaks shouldn’t have published the documents in the name of another “vulnerable population”: the foreign sources named in the State Department cables, never meant to be public. WikiLeaks put the sources at risk — or so went the argument, at least.

In the end, the dangers were exaggerated, and the government never pointed to a single person killed because of the WikiLeaks disclosures. But at the time the companies made their decisions, they felt pressure to balance one right against another. Free speech lost.

One might argue that in the WikiLeaks case there was a strong public interest in publishing the cables, even acknowledging the potential risks. Conversely, in the case of Reddit “creepshots,” the lack of public interest seems obvious: the images provide nothing to society, they’re disgusting, and they degrade women. Yet if you asked someone at the State Department about WikiLeaks in December 2010, you were bound to hear roughly the same thing: that WikiLeaks would have “blood on its hands,” that it was incredibly dangerous, that it was all things horrible.

So the question becomes: Who is the judge at these companies, and what is his or her judicial philosophy? As the law professor Geoffrey Stone once wrote, balancing seems sensible but quickly becomes unworkable. It’s “incredibly difficult to identify and assess all of the many factors that should go into this judgment on a case-by-case basis,” he wrote. “As a result, its application would produce a highly uncertain, unpredictable, and fact-dependent set of outcomes that would leave speakers, police officers, prosecutors, jurors, and judges in a state of constant uncertainty.”

The same problem would plague Internet company executives and users alike. As Justice Harlan once quipped, “One man’s vulgarity is another man’s lyric.”

Of course, there is much to appreciate about Tufekci’s argument that those offended by speech should target the companies responsible for hosting the content rather than calling for government restrictions. After all, the best response to offensive speech is more speech, and there is no better example than protesting.

But any such call might be better aimed at the speakers, not their hosts, because the ultimate end point is fraught with danger. Tufekci herself summed up the problem by asking, “These sites ban all kinds of speech to promote a certain kind of community, why not this, too?”

This is the exact argument Google will hear when the next blasphemous video appears on YouTube—or the next over-the-line comedy routine, the next leak of classified material, and so on. It’s the argument to which the government has been capitulating at an alarming rate, as this excellent essay by law professor Jonathan Turley explains.

We can be sure this will not be the last time that major Internet companies, which have a strangle-hold on Web content, hear the phrase: Please censor the speech I find deeply offensive. You already ban so many types of speech. Why not just one more?

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