Our Bipolar Free-Speech Disorder And How To Fix It (Part 3)

from the social-media-and-free-speech-needs-a-new-framework dept

Part 1 and Part 2 of this series have emphasized that treating today's free-speech ecosystem in "dyadic" ways—that is, treating each issue as fundamentally a tension between two parties or two sets of stakeholders—doesn't lead to stable or predictable outcomes that adequately protect free speech and related interests.

As policymakers consider laws that affect platforms or other online content, it is critical that they consider Balkin's framework and the implications of this "new-school speech regulation" that the framework identifies. Failure to apply it could lead—indeed, has led in the recent past—to laws or regulations that indirectly undermine basic free expression interests.

A critical perspective on how to think about free speech in the twenty-first century requires that we recognize the extent to which free speech is facilitated by the internet and its infrastructure. We also must recognize that free speech is in some new ways made vulnerable by the internet and its infrastructure. In particular, free speech is particularly enhanced by the lowering barriers to entry for speakers that the internet creates. At the same time, free speech is made vulnerable insofar as the internet and the infrastructure it provides for freedom of speech is subject to legal and regulatory action that may not be transparent to users. For example, a government may seek to block the administration of a dissident website's domain name, or may seek to block the use by dissident speakers of certain payment systems.

There are of course non-governmental forces that may undermine or inhibit free speech—for example, the lowered barriers to entry make it easier for harassers or stalkers to discourage individuals from participation. This problem is in some sense an old problem in free-speech doctrine—the so-called "heckler's veto"—is a subset of this problem. The problem of harassment may give rise to users' complaints directly to the platform provider, or to demands that government regulate the platforms (and other speakers) more.

Balkin explores the methods in which government can exercise both hard and soft power to censor or regulate speech at the infrastructure level. This can include direct changes of the law aimed at compelling internet platforms to censor or otherwise limit speech. This can include pressure that doesn't rise to the level of law or regulation, as when a lawmaker warns a platform that it must figure out how to regulate certain kinds of troubling expression because "[i]f you don't control your platform, we're going to have to do something about it." It can include changes in law or regulation aimed at increasing incentives for platforms to self-police with a heavier hand. Balkin characterizes the ways in which government can regulate speech of citizens and press indirectly, through pressure on or regulation of platforms and other intermediaries like payment systems, as "New School Speech Regulation."

The important thing to remember is that government itself, although often asked to arbitrate issues that arise between internet platforms and users, is not always a disinterested party. For example, a government may have its own reasons for incentivizing platforms to collect more data (and to disclose the data it has collected), such as with National Security Letters. Because the government may regulate speech indirectly and non-transparently, there is a sense in which government cannot position itself on all issues as a neutral referee of competing interests between platforms and users. In a strong sense, the government itself may have its own interests that themselves may be in opposition to either user interests or platform interests or both.

Toward a new Framework

It is important to recognize that entities at each corner of Balkin's "triangular" model may each have valid interests. For example, governmental entities may have valid interests in capturing data about users, or in suppressing or censoring certain (narrow) classes of speech, although only within a larger human-rights context in which speech is presumptively protected. End-users and traditional media companies share a presumptive right to free speech, but also other rights consistent with Article 19 of the ICCPR:

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

The companies, including but not limited to internet infrastructure companies in the top right corner of the triangle, may not have the same kind of legal status that end users or traditional media have. By the same token they may not have the same kind of presumptively necessary role in democratic as governments have. But we may pragmatically recognize that they have a presumptive right to exist, pursue profit, and innovate, on the theory that their doing so ultimately redounds to the benefit of end users and even traditional media, largely by expanding the scope of voice and access.

Properly, we should recognize all these players in the "triangular" paradigm as "stakeholders." With the exception of the manifestly illegal or malicious entities in the paradigm (e.g., "hackers" and "trolls"), entities at all three corners each have their respective interests that may be in some tension with actors at other corners of the triangle. Further, the bilateral processes between any two sets of entities may obscure or ignore the involvement of the third set in shaping goals and outcomes.

What this strongly suggests is the need for all (lawful, non-malicious) entities to work non-antagonistically towards shared goals in a way that heightens transparency and that improves holistic understanding of the complexity of internet free speech as an ecosystem.

Balkin suggests that his free-speech-triangle model is a model that highlights three problems: (1) "new school" speech regulation that uses the companies as indirect controllers and even censors of content, (2) "private governance" by companies that lacks transparency and accountability, and (3) the incentivized collection of big data that makes surveillance and manipulation of end users (and implicitly the traditional media) easier. He offers three suggested reforms: (a) "structural" regulation that promotes competition and prevents discrimination among "payment systems and basic internet services," (b) guarantees of "curatorial due process," and (c) recognition of "a new class of information fiduciaries."

Of the reforms, the first may be taken as a straightforward call for "network neutrality" regulation, a particular type of regulation of internet services that Balkin has expressly and publicly favored (e.g., his co-authored brief in the net neutrality litigation). But it actually articulates a broader pro-competition principle that has implications for our current internet free-speech ecosystem.

Specifically, the imposition of content-moderation obligations by law and regulation actually inhibits competition and discriminates in favor of incumbent platform companies. Which is to say, because content moderation requires a high degree both of capital investment (developing software and hardware infrastructure to respond to and anticipate problems) and of human intervention (because AI filters make stupid decisions, including false positives, that have free-speech impacts), highly capitalized internet incumbent "success stories" are ready to be responsive to law and regulation in ways that startups and market entrants generally are not. The second and third suggestions—that the platforms provide guarantees of "due process" in their systems of private governance, and that the companies that collect and hold Big Data meet fiduciary obligations—need less explanation. But I would add to the "information fiduciary" proposal that we would properly want such a fiduciary to be able to invoke some kind of privilege against routine disclosure of user information, just as traditional fiduciaries like doctors and lawyers are able to do.

Balkin's "triangle" paradigm, which gives us three sets of discrete stakeholders, three problems relating to the stakeholders' relationships with one another, and three reforms is a good first step to framing internet free-speech issues non-dyadically. But while the taxonomy is useful it shouldn't be limiting or necessarily reducible to three. There are arguably some additional reforms that ought to be considered, at a "meta" level (or, if you will, above and outside the corners of the free-speech triangle). With this in mind let us add the following "meta" recommendations to Balkin's three specific programmatic ones.

Multistakeholderism. The multipolar model that Balkin suggests, or any non-dyadic model, actually has been addressed in different ways by institutionalized precursors in the world of internet law and policy. That model is multistakeholderism. Those precursors, ranging from hands-on regulators and norm setters like ICANN to broader and more inclusive policy discussion forums like the Internet Governance Forum, are by no means perfect and so must be subjected to ongoing critical review and refinement. But they're better at providing a comprehensive, holistic perspective than lawmaking and court cases. Governments should be able to participate, but should be recognizes as stakeholders and not just referees.

Commitment to democratic values, including free speech, on the internet. Everyone agrees that some kinds of freedom of expression are disturbing and disruptive on the internet—yet, naturally enough, not everybody agrees about what should be banned or controlled. We need to work actively to uncouple the commitment to free speech on the internet—which we should embrace as a function of both the First Amendment and international human-rights instruments—from debates about particular free-speech problems. The road to doing this lies in bipartisan (or multipartisan, or transpartisan) commitment to free-speech values. The road away from the commitment lies expressly in the presumption that "free speech" is a value that is more "right" than "left" (or vice versa). To save free speech for any of us, we must commit in the establishment of our internet policies to what Brandeis called "freedom for the thought that we hate."

Commitment to "open society" models of internet norms and internet governance institutions. Recognition, following Karl Popper's The Open Society and Its Enemies (Chapter 7) that our framework for internet law and regulation can't be "who has the right to govern" because all stakeholders have some claims of right regarding this. And it can't be "who is the best to govern" because that model leads to disputed notions of who's best. Instead, as Popper frames it,

"For even those who share this assumption of Plato's admit that political rulers are not always sufficiently 'good' or 'wise' (we need not worry about the precise meaning of these terms), and that it is not at all easy to get a government on whose goodness and wisdom one can implicitly rely. If that is granted, then we must ask whether political thought should not face from the beginning the possibility of bad government; whether we should not prepare for the worst leaders, and hope for the best. But this leads to a new approach to the problem of politics, for it forces us to replace the question: Who should rule? by the new question: How can we so organize political institutions that bad or incompetent rulers can be prevented from doing too much damage?"

Popper's focus on institutions that prevent "too much damage" when "the worst leaders" in charge is the right one. Protecting freedom of speech in today's internet ecosystem requires protecting against the excesses or imbalances that necessarily result from merely dyadic conceptions of where the problems are or where the responsibilities for correcting the problems lie. If, for example, government or the public want more content moderation by platforms, there need to be institutions that facilitate education and improved awareness about the tradeoffs. If, as a technical and human matter it's difficult (maybe impossible) to come up with a solution that (a) scales and (b) doesn't lead to a parade of objectionable instances of censorship/non-censorship/inequity/bias, then we need create institutions in which that insight is fully shared among stakeholders. (Facebook has promised more than once to throw money at AI-based solutions, or partial solutions, to content problems, but the company is in the unhappy position of having a full wallet with nothing that's worth buying, at least for that purpose. (See "Can Mark Zuckerberg Fix Facebook Before It Breaks Democracy?"). The alternative will be increasing insistence that platforms engage in "private governance" that's both inconsistent and less accountable. In the absence of an "ecosystem" perspective, different stakeholders will insist on short-term solutions that ignore the potential for "vicious cycle" effects.

Older models for mass-medium free-speech regulation were entitles like newspapers and publishers, with high degrees of editorial control, and common carriers like the telephone and telegraph, which mostly did not make content-filtering determinations. There is likely no version of these older models that would work for Twitter or Facebook (or similar platforms) while maintaining the great increase in freedom of expression that those platforms have enabled. Dyadic conceptions of responsibility may lead to "vicious cycles," as when Facebook is pressured to censor some content in response to demands for content moderation, and the company's response creates further unhappiness with the platform (because human beings who are the ultimate arbiters of individual content-moderation decisions are fallible, inconsistent, etc.). At that point, the criticism of the platform may frame itself as a demand for less "censorship" or for more "moderation" or for the end of all unfair censorship/moderation. There may also be the inference that platforms have deliberately been socially irresponsible. Although that inference may be correct in some specific cases, the general truth is that the platforms have more typically been wrestling with a range of different, competing responsibilities.

It is safe to assume that today's mass-media platforms, including but not limited to social media, as well as tomorrow's platforms will generate new models aimed at ensuring that the freedom of speech is protected. But the only way to increase the chances that the new models will be the best possible models is to create a framework of shared free-speech and open-society values, and to ensure that each set of stakeholders has its seats at the table when the model-building starts.

Mike Godwin (@sfmnemonic) is a distinguished senior fellow at the R Street Institute.


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  • icon
    ECA (profile), 30 Nov 2018 @ 1:19pm

    Da internet of things..

    Communication is hard..
    Explaining things is hard
    Understanding YOUR opinion, then hearing anothers opinion IS HARD..
    Trying to justify your understanding of ??? is hard..

    There is no truth, justice or anything said in this..

    Its the idea of a bunch of 3 year olds trying to figure out HOW to speak to each other.
    then a couple 6 year olds, interfere and try to explain things THEIR WAY..
    Then the 12 year olds..join in..

    In the end...the 3 year old walk away, confused, to find another place where they can talk in Peace..

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  • identicon
    Anonymous Coward, 30 Nov 2018 @ 2:38pm

    Commitment to democratic values, including free speech, on the internet. Everyone agrees that some kinds of freedom of expression are disturbing and disruptive on the internet—yet, naturally enough, not everybody agrees about what should be banned or controlled. We need to work actively to uncouple the commitment to free speech on the internet—which we should embrace as a function of both the First Amendment and international human-rights instruments—from debates about particular free-speech problems. The road to doing this lies in bipartisan (or multipartisan, or transpartisan) commitment to free-speech values. The road away from the commitment lies expressly in the presumption that "free speech" is a value that is more "right" than "left" (or vice versa). To save free speech for any of us, we must commit in the establishment of our internet policies to what Brandeis called "freedom for the thought that we hate."

    I would imagine you'd allow some exemptions to this free speech. My guess would be those exemptions would be the following: obscenity, fraud, speech essential to criminal conduct, and possibly fighting words and incitement. Which is to say, the same categories of speech with the Supreme Court of the United States has ruled are not protected by the First Amendment.

    Is that correct?

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    • icon
      Mike Godwin (profile), 30 Nov 2018 @ 3:16pm

      Re:

      Je suis Charlie.

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      • identicon
        Anonymous Coward, 30 Nov 2018 @ 3:46pm

        Re: Re:

        An enigmatic reply.

        I shall interpret it to mean, "Free speech is a concept which crosses national borders." Which, to some extent, is fair. However, in France, the Daily Stormer, for example, would be illegal under hate speech laws. Charlie Hebdo was sued for its Islamic cartoons, and probably would have been convicted had the cartoons targeted mainstream Islam instead of just the fundamentalists and terrorists. Defaming or insulting someone for belonging to a religion is just not considered "free speech" there.

        Would you be okay with that being the standard for the "free speech values" that we should be committing to?

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        identicon
        Axel Bering, 30 Nov 2018 @ 5:53pm

        Re: Re: One part "free speech", 3 parts globalist.

        That's my overall summary, though I state at outset that have not attempted to actually read this textual tar pit in which dissenters can only wander out on shaky premises that sink under them and they die. So I just glanced and go on prior long evidence that Masnick / Godwin / Gellis are corporatists and globalists. -- NO, it's not above my head, it's beneath my contempt, a typical academic non-statement that can only be interpreted correctly if the goal is global governance.

        If Godwin wants to be read, he can damn well state his thesis clearly and bullet point it so doesn't require time-wasting effort by the hoped-for thousands of readers. But what he's done is a typical academic's trick: prepared a refuge to keep his illusion that he's "too smart for the site", rather than that his notions are rejected.

        [Now, fanboys, unless you've waded through all three parts attempting understanding, don't nag me for being wiser in NOT even starting. That you haven't is already shown by lack of comments. Don't pretend that ad hominemat me supports this dreck.]

        My opinion is supported by comments by others:

        Part 1: Godwin denies "advancing an argument for government control of speech". -- AC sez: "You should be able to clearly state your proposal in one short paragraph, if you are sincere."

        Part 2: The most resolute fanboys with versions of: "I'm pretending to have read it, and without even looking up 'dyad' so that can appear smart and that there's interest here in weighty discussion."

        Part 3: [Crickets] Until the Extra Capitals Anarchist with one of its unique collections of words that read like a 60s hippie taking a break from FORTRAN coding, and are apparently punched in on a KSR-33 Teletype with randomly sticky upper-casing requiring a series of periods be sent to reset.

        Now, likely same AC is back with a simple but key question:

        I would imagine you'd allow some exemptions to this free speech. My guess would be those exemptions would be the following: obscenity, fraud, speech essential to criminal conduct, and possibly fighting words and incitement. Which is to say, the same categories of speech with the Supreme Court of the United States has ruled are not protected by the First Amendment.

        Is that correct?

        I'd like an answer but Mike Godwin replies only:

        Je suis Charlie.

        Fully proved me wise to not bother. You fail, Godwin.

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        • identicon
          Anonymous Coward, 30 Nov 2018 @ 5:58pm

          Re: Re: Re:

          Tough shit. You get to be nagged at anyway.

          out_of_the_blue just can't stand it when due process is enforced.

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          • identicon
            Axel Bering, 30 Nov 2018 @ 6:12pm

            Re: Re: One part "free speech", 3 parts globalist.

            Gosh, there's always some vulgar little "AC" here who watches the site so close (on Friday evening) that responded within 5 minutes. -- With some blithering irrelevancy that shows it's a LONG time fanboy. -- My bet is this "AC" is Timothy Geigner aka "Dark Helmet". -- In any case, a regular yet too chicken to even use its account name.

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            • identicon
              Anonymous Coward, 30 Nov 2018 @ 11:52pm

              Re: Re: Re: One part "free speech", 3 parts racist dipsit

              Coming from someone who spends 50+ hours a week here. That’s fucking rich. Not only are you delusional you’re a crybaby too.

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        • icon
          Mike Godwin (profile), 30 Nov 2018 @ 6:14pm

          Re: Re: Re: One part "free speech", 3 parts globalist.

          I just don't play cross-examination games unless I get to be the prosecutor, Axel.

          But let's talk about the "globalist" nonsense for a moment. It's super-trivial to observe that different nations and cultures that consider themselves to be committed to free speech disagree on the margins as to what "free speech" means. What's less trivial is to find a conceptual framing that compels people to look past the short-term us-versus-them thinking that leads to bad decisions to censor (or to push the platforms into censorship). The purpose of this long paper is to enable an open-minded reader to consider that some aspects of free-speech/censorship talk are afflicted with binary thinking that doesn't map well to the free-speech environment we're actually in.

          Now, you may reasonably infer that I think an open-minded reader is likely to be someone with the kind of attention span it takes to read a longer piece. Obviously, I do. So it should be clear that I didn't write this piece for the kind of person who doesn't recognize that "Je suis Charlie" is a simple, short way to express my sympathies. Certainly you didn't recognize it, even though I thought it was obvious. Perhaps this is because it's not in your own nature to express sympathy. I'm afraid that's an affective disorder that's beyond my ability to address.

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            identicon
            Axel Bering, 30 Nov 2018 @ 6:18pm

            Re: Re: Re: Re: One part "free speech", 3 parts globalist.

            But let's talk about the "globalist" nonsense for a moment.

            Then you don't. "Globalist" as I used it means for global governance, which a corporatist mechanism

            It's super-trivial to observe that different nations and cultures that consider themselves to be committed to free speech disagree on the margins as to what "free speech" means.

            Not in dispute. You don't sign on to US Supreme Court standard, which is what the AC asked and you didn't answer.

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            • icon
              Mike Godwin (profile), 30 Nov 2018 @ 7:02pm

              Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

              "You don't sign on to US Supreme Court standard, which is what the AC asked and you didn't answer."

              I'm an American constitutional lawyer. I signed onto American constitutional law when I got sworn in to the three jurisdictions where I'm admitted.

              That should be so obvious that it doesn't require an answer.

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            • identicon
              Anonymous Coward, 30 Nov 2018 @ 11:49pm

              Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

              No it mean Jew you fucking racist.

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            identicon
            Axel Bering, 30 Nov 2018 @ 6:24pm

            Re: Re: Re: Re: One part "free speech", 3 parts globalist.

            So it should be clear that I didn't write this piece for the kind of person who doesn't recognize that "Je suis Charlie" is a simple, short way to express my sympathies. Certainly you didn't recognize it, even though I thought it was obvious.

            No, I recognize it. Doesn't make it relevant to question you were asked. Do you recognize the word "relevant"?

            Perhaps this is because it's not in your own nature to express sympathy.

            I have much sympathy with The Poor, very little with The Rich and their damnable globalist corporations with which they intend to surveil and enslave the 99%.

            I'm afraid that's an affective disorder that's beyond my ability to address.

            Oh, labeling.

            I label you a question-dodger, an obvious one.

            Now, UNLESS you have something on topic -- which I now definitely can regard as globalist / corporatism intentions to stamp out free speech -- then why bother? Like fanboys here, you just didn't expect that I'd reply, so could take shots for free as if had answered me or the cogent AC there.

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              identicon
              Axel Bering, 30 Nov 2018 @ 6:50pm

              Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

              This is actually Godwin's most telling remark:

              > I just don't play cross-examination games unless I get to be the prosecutor, Axel.

              Condescending AND flatly says he needs safety in superior position. Sheesh. Bigger words but teenage bravery.

              I'm declaring victory at the time stamp of this, but may be back whenever. I'm trying to not add interest here, or as the fanboys regard all dissent: where to target ad hom.

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              • icon
                Mike Godwin (profile), 30 Nov 2018 @ 7:04pm

                Re: Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

                Oh, Axel, all I was saying is I recognize a troll when I see one.

                "Declaring victory"--what are you, 10 years old?

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                • identicon
                  Axel Bering, 3 Dec 2018 @ 8:39am

                  Re: One part free speech, 3 parts globalist.

                  Oh, Axel, all I was saying is I recognize a troll when I see one.

                  So do I! -- But your remark is fair enough from what I go into here. -- As think mine that you're childishly ad hom-ing in response.

                  But no, I'm NOT getting into your text. I see it as a trap and long ago learned not to let opponents set the parameters and boundaries of what will be discussed.

                  "Declaring victory"--what are you, 10 years old?

                  Simply stated -- after short wait for you -- that I was off for the weekend. However, after your NOT answering a simple question (the prior AC's) with straightforward "yes or no" you have NO room to question my maturity. Your answer was judged "enigmatic" by that AC and non-responsive by me. -- You still don't answer it later! Just let readers assume that you support the US Supreme Court, with irrelevant facts. I'm not easily misled by lawyer's tricks, so STILL would like a clear yes or no to the AC's question.

                  Your only goal in responding here is to appear to "win" some always silly off-topic back-and-forth, but the only tactic you use is ad hominem and sneering. REAL ADULT after claiming thirty years experience. An adult as you claim to be would just ignore.

                  Now, back to prior: you could just STATE a yes, no, or kinda to the AC's totally relevant and polite question of what you'd exempt from "free speech", but you do not.

                  I believe also that my line of meta-questioning on WHETHER you're for corporate / global governance in this area is relevant. And you dodged it. Period.

                  Now, I'm DONE, which is usually accurate. Can't imagine that you'll provoke to more useless off-topic back-and-forth, so I'll just end with observing that if YOU do some more of it trying to "win", then it shows all about you that's necessary to hypothetical unbiased readers.

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              • identicon
                Anonymous Coward, 30 Nov 2018 @ 11:54pm

                Re: Re: Re: Just stop dude

                You are so fucking outclassed here it’s like watching Mike Tyson beat up a toddler.

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              • icon
                Stephen T. Stone (profile), 1 Dec 2018 @ 1:45am

                I'm declaring victory

                That you see a discussion as something to “win” rather than something you enter into so you can expand your knowledge and perspective is…telling.

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                • identicon
                  Anonymous Coward, 1 Dec 2018 @ 7:17pm

                  Re:

                  To be fair. It the only kind of “victory” he going to have in this discussion. Because to non crazy people it looks like he got crushed so flat you could slide him under a door.

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            • icon
              Mike Godwin (profile), 30 Nov 2018 @ 7:02pm

              Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

              "You don't sign on to US Supreme Court standard, which is what the AC asked and you didn't answer."

              I'm an American constitutional lawyer. I signed onto American constitutional law when I got sworn in to the three jurisdictions where I'm admitted.

              That should be so obvious that it doesn't require an answer.

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              • identicon
                Anonymous Coward, 30 Nov 2018 @ 7:22pm

                Re: Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

                I'm the AC who asked this and this (I'm not Axel Bering; I'm not that much of an asshole).

                You're an American constitutional lawyer (which explains the reference to Brandeis), and so it's fair that you think in terms of the First Amendment to the United States Constitution (and how it has been defined by the SCOTUS).

                The Internet, though, is global. It transcends borders: both territorial and cultural. So, while it's well and good for you to define the "free speech" that people, corporations, and governments should commit to on the Internet in those terms, why should the other 95% of the world's population care about American constitutional precedent?

                And, if you're defining it in those terms, and everybody else isn't, how can we reach a meaningful commitment to free speech when we can't even agree upon what constitutes "free speech" in the first place?

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                • icon
                  Mike Godwin (profile), 1 Dec 2018 @ 3:58pm

                  Re: Re: Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

                  "You're an American constitutional lawyer (which explains the reference to Brandeis), and so it's fair that you think in terms of the First Amendment to the United States Constitution (and how it has been defined by the SCOTUS)."

                  I've also worked with NGOs in 20 different foreign countries on free-speech issues. So it's fair to infer that I'm aware of different foreign and international approaches to freedom of expression. This paper expressly refers to Article 19 of the ICCPR in Part 2. Did you read Part 2?

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                  • identicon
                    Anonymous Coward, 2 Dec 2018 @ 2:19pm

                    Re: Re: Re: Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

                    Yes, I read it.

                    Part of Article 19 that you didn't quote was:

                    3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

                    (a) For respect of the rights or reputations of others;

                    (b) For the protection of national security or of public order (ordre public), or of public health or morals.

                    You ask your readers to "commit in the establishment of our internet policies to what Brandeis called 'freedom for the thought that we hate,'" as "a function of both the First Amendment and international human-rights instruments," but can you point out a law restricting free speech, in the EU or US, that doesn't at least purport to be necessary for one or both of those reasons?

                    It really sounds, from my perspective, like you're asking the world to conform to the American ideal of what free speech should be. And that's fine for you to ask! But, with the shithole Nazi vs. Antifa battleground that America is becoming, largely due to the implementation of those ideals, why should anyone outside the US listen?

                    Why should we want the concept of free speech governing the Internet to be any closer to the American ideal? Why shouldn't we deny those who call for the extermination of entire races a pulpit, when not doing so leads to Andrew Anglin siccing hordes of harassers on people, or Alex Jones sending armed vigilantes into pizza parlors, or protestors being run over at an event organized by Richard Spencer, or synagogues shot up by a shooter egged on by his friends on Gab?

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            • icon
              Mike Godwin (profile), 30 Nov 2018 @ 7:08pm

              Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

              C'mon, Axel, sometimes it must dimly occur to you that you're damaged, that there's something wrong with you emotionally, and you're trying to work out by being a troll.

              I don't play word games with trolls. I gave a couple of decades to that diversion, but I'm mostly out of it these days.

              If you want to know what tips your hand as a troll, it's this: you don't argue substantively. You're not actually interested in the substance of what I wrote enough to read it--and you didn't read it--so of course I know that no exchange with you can be substantive, by definition.

              If you were a subtler writer, you might not have been so obvious. You could have done a bit of sealioning, for example.

              Best!

              Mike

              reply to this | link to this | view in chronology ]

              • identicon
                Axel Bering, 3 Dec 2018 @ 8:50am

                Re: Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

                If you were a subtler writer, you might not have been so obvious.

                One more response: I'm not a subtle writer. Geez what an insult! I'd consider myself to have failed if taken as subtle. But it's just that you were merely trying to be catty-cute and flaunt an assumed superiority. If the playing field were equal here -- you'll note that my comments are hidden as Techdirt euphemizes viewpoint discrimination -- then I'd have taken time to fully parse your text and feel confident of winning on the merits. The one AC did some and you just dodge is another factor.

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 3 Dec 2018 @ 1:34pm

                  Re: Re: Re: Re: Re: Re: Re: One part "free speech", 3 parts globalist.

                  ...If Techdirt engaged in viewpoint discrimination, shouldn't "the one AC" have been censored too, instead of just "dodged?"

                  reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Nov 2018 @ 7:18pm

    where's the beef?

    ... so the literal bottom line to this ponderous and meandering 3-Part Series is:

    "But the only way to increase the chances that the new models will be the best possible models is to create a framework of shared free-speech and open-society values, and to ensure that each set of stakeholders has its seats at the table when the model-building starts. "


    Seems that all we need is "the best possible... new models" (of what exactly ?).
    Getting these models is no problem -- you just get all the "stakeholders" together "to create a framework of shared values".
    This brilliant procedure then solves most all our free-speech/internet/social-media problems.

    Sorry, but this 3-Part opus is nonsense IMHO -- a loose kluge of general and commonplace observations about free-speech on the internet. There is no rational or useful conclusion to this verbal stewpot.
    Apparently we are expected to eagerly embrace the (non-obvious) brilliance of the Triangular-Model and Balkin's unquestioned authority on this subject.

    reply to this | link to this | view in chronology ]

  • icon
    Gerald Robinson (profile), 1 Dec 2018 @ 7:09pm

    Something missing

    We are seeing a humpty dumpty trend!
    "When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
    We need a common dissipating deal with common problems! So I propose the following:

    Hate speech==speech I hate.
    Fake news==news that contradicts my views.
    Dissinformation==delibrate distortion of reality which does not match my weltanschauung.

    There are likely others but they must be felt with if we are to progress. I recently ran across an individual who equated nationalism with NAZISM!

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 1 Dec 2018 @ 8:53pm

      Re: Something missing

      Can I ask what any of these have to do with the article at hand?

      reply to this | link to this | view in chronology ]

    • icon
      Darkness Of Course (profile), 2 Dec 2018 @ 1:27pm

      Re: Something missing

      In America "nationalism" means "white nationalism." It is pretty clearly for whites and against non-whites.

      It is also against Jews, and any white looking people that aren't correct in their background (not German!) and liberals are always tossed in.

      When all the above is added together it is impossible to distinguish modern American Nationalism with Nazis. Because they are the same thing.

      reply to this | link to this | view in chronology ]

  • icon
    NaBUru38 (profile), 2 Dec 2018 @ 7:07am

    I'm very interested in the concept of information fiduciary. Can you explain it more thoroughly?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Dec 2018 @ 9:06am

      Re: LMGTFY

      ...just Google "information fiduciary" and/or Yale law professor Jack M. Balkin, creator of that term/concept.

      Unfortunately, this Balkin concept is rather fuzzy and you run into a lot of dense, confusing text trying to explain it.

      Basically, Professor Balkin maintains that internet and social media companies have an inherent legal and ethical responsibility to protect user/client personal data and do them no harm, same as that responsibility of doctors and lawyers.
      This inherent responsibility can be enforced by the internet companies themselves or by government law/regulation --- but on this point Professor Balkin becomes extremely vague.

      The doctor/lawyer model of ethical purity is very shaky. Doctors routinely kill over a 100,000 Americans each year through medical errors/negligence.
      Gallup Polls consistently show that Americans have an extremely negative view of lawyers generally.
      Do you believe doctors stringently protect your highly personal medical records from 3rd Parties ?
      Do you believe lawyers are stringently ethical and would not exploit you through excessive fees or unnecessary delays in handling your legal issues?
      What is magic about the Fiduciary label? Might professional lawyers have a biased view of this overall situation?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Dec 2018 @ 8:02am

    Altogether now...

    There once was an out of the blue
    Who hated the process of due
    Each speech that he'd paid
    Was DMCAed
    And shoved up his ass with a screw

    reply to this | link to this | view in chronology ]

  • identicon
    Axel Bering, 3 Dec 2018 @ 9:54am

    Forgot meta-view that Techdirt CENSORS "free speech" discussion!

    You can see right here what Masnick / Godwin actually mean by "free speech": NO DISSENT ALLOWED. The corporate mechanism by which they intend to enforce that is to take CDA Section 230 backwards, as empowering corporations to control "natural" persons, rather than its intent of allowing The Public easy publishing of their views on the new two-way internet WITHOUT either gov't or corporate interference.

    Techdirt advertises "free speech" -- then censors even within common law comments.

    Censorship by corporations is still censorship.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 4 Dec 2018 @ 2:33am

      Re: Forgot meta-view that Techdirt CENSORS "free speech" discussion!

      I just hit the report button, Axel. If more of us do this your comment will be hidden. It takes five, if memory serves. Now push off. I'm sick of your lies, troll boy.

      reply to this | link to this | view in chronology ]

  • identicon
    Wendy Cockcroft, 4 Dec 2018 @ 6:10am

    Non-governmental censors

    **There are of course non-governmental forces that may undermine or inhibit free speech—for example, the lowered barriers to entry make it easier for harassers or stalkers to discourage individuals from participation. This problem is in some sense an old problem in free-speech doctrine—the so-called "heckler's veto"—is a subset of this problem. The problem of harassment may give rise to users' complaints directly to the platform provider, or to demands that government regulate the platforms (and other speakers) more.**

    That's a massive bugbear of mine. As I've warned before, if platforms don't do something about trolls, etc., people will kick off until they do. That collateral damage may ensue is an unfortunate by-product but that means that sooner or later someone must decide whose speech rights are more important: the troll's or the trolled. While that may seem straightforward to most of us, remember that time Twitter introduced a complaint procedure that allowed you to report people for disagreeing with your opinion? There's your problem. Add over-excitable SJWs to the mix and Houston, we have a problem. I don't envy anyone who has to make those calls; they get flak from both sides.

    **In a strong sense, the government itself may have its own interests that themselves may be in opposition to either user interests or platform interests or both.**

    I had that conversation with Lauren Weinstein over hate speech regulation. I had to remind him that Poland has proscribed speech describing Polish collusion with the Nazis during WW2. And this is a subset of laws designed to counter... _hate speech_. Collateral damage is still damage.

    **"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."**

    As I've often said, any philosophy predicated on a best case scenario is ultimately doomed to failure. We've got censorship up the wazoo now because some people simply refuse to try to get along with everyone else. Heck, we've got people recruiting for terrorist groups and activities using social media. AND they argue they're expressing their opinions. Same for made-up "news" stories and outright propaganda, conspiracy theories, etc. If those rights end where ours begin, are they limited to making counter-speech (water pistol V fire hose), which is often ineffectual, or do these rights come with a responsibility to work towards the greater good? We both know what the answer is. Blue-skyers gonna blue-sky. Look, a squirrel!

    **...But we may pragmatically recognize that they have a presumptive right to exist, pursue profit, and innovate, on the theory that their doing so ultimately redounds to the benefit of end users and even traditional media, largely by expanding the scope of voice and access.'**

    Eh, that's not pragmatic, that's wishful thinking. A pragmatic approach would recognise that jerks exist and make a plan to deal with them.

    **...With the exception of the manifestly illegal or malicious entities in the paradigm (e.g., "hackers" and "trolls"), entities at all three corners each have their respective interests that may be in some tension with actors at other corners of the triangle.**

    Again, they would claim that they're exercising their rights to freedom of expression, etc., and that limiting their rights limits other people's. Per our experience with Poland's hate speech laws being used to suppress posts about Polish collusion with the Nazis, they've got a point, whether I like it or not. Therefore, any anti-troll, etc., measures must be carefully and narrowly targeted to avoid collateral damage to the rights of people who are not actively setting out to cause trouble for others.

    reply to this | link to this | view in chronology ]


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