School Boots Professor Off Campus After He Exposes Its Complicity In Predatory Publishing Schemes

Free Speech

from the bitten-hand-bites-back dept

Predatory publishing — the pay-for-play practice that allows anyone to have their research published as soon as the check clears — may end up costing a professor his job. Derek Pyne, associate professor of economics at British Columbia’s Thompson Rivers University, has managed to turn his own campus against him simply for telling the uncomfortable truth.

His 2017 paper, The Rewards of Predatory Publication at a Small Business School, exposed the ugly side effects of the constant pressure on researchers and academics to be published. “Publish or perish,” the saying goes. And if you can’t get published by someone who thinks your research is worth publishing, get published by someone who thinks everyone with enough cash on hand deserves to be published.

What Pyne found was schools rewarding publication, whether or not the publication was bought and paid for.

It finds that the majority of faculty with research responsibilities at a small Canadian business school have publications in predatory journals. In terms of financial compensation, these publications produce greater rewards than many non-predatory journal publications. Publications in predatory journals are also positively correlated with receiving internal research awards.

Some of those who were reaping the rewards of being published by taking advantage of pay-for-play publications were Pyne’s associates at Thompson Rivers University. They didn’t appreciate being the data set Pyne used in his research paper. This backlash has led to Pyne being ousted from the campus of the school that employs him. (via Reason)

As a result of that 2017 paper and the media attention that followed, Pyne says, he’s been effectively banned from campus since May. He may visit only for a short list of reasons, such as health care. Teaching is out and so, too, is the library. It’s unclear when, or if, Pyne will be allowed to resume his normal duties.

This isn’t the only thing Pyne has done to piss off his colleagues. He’s also engaged in a number of heated arguments with faculty about the quality of the school’s grad programs and brought his numerous complaints to the press. Administrators claimed coworkers were afraid of him and demanded he undergo a psychological evaluation. His keys were taken and he was banned from campus. Pyne cleared the psych eval — one that found (understandably) Pyne felt persecuted by his employer. He’s now back on the payroll, but has been told to “cease communicating inappropriate, defamatory and insubordinate statements” about the school.

Fortunately, Pyne has a few allies. Retraction Watch — an essential site with zero sympathy for predatory publications — is now involved in Pyne’s fight against the university.

Ivan Oransky, Distinguished Writer in Residence at New York University’s Arthur Carter Journalism Institute and co-founder of Retraction Watch, has followed Pyne’s case for over a year. He said recently that he was “puzzled” about “what’s actually going on. It’s not very helpful when a university takes action like this but doesn’t say why.”

That’s why Retraction Watch has argued for the release of university investigations, he said, citing an article on why Cornell University hasn’t released its findings in the Brian Wansink research misconduct case, among other similar incidents elsewhere.

He also has some free speech warriors of the Canadian variety helping him out.

Canada’s Society for Academic Freedom and Scholarship has appealed to Thompson Rivers on Pyne’s behalf. The Canadian Association of University Teachers, similar to American Association of University Professors, is also looking into the case.

Thompson Rivers has refused to participate in that investigation so far, David Robinson, CAUT’s executive director, said recently.

“This is a very peculiar case,” Robinson said. “But certainly criticizing colleagues’ research or his administration is intramural speech protected by academic freedom. These are matters of educational quality. He may be correct, or he may not be correct. But he certainly has a right to express his views on educational quality.”

Entities that can’t handle criticism love shooting the messenger — especially when that messenger is pointing out the university’s willingness to reward quantity over quality. Whatever reputational damage the school and its pay-for-play professors are suffering isn’t the result of defamation or inappropriate statements from Pyne. It’s a direct result of their actions and the incentives the university employs. The university says it will reward educators who publish. And those educators are hastily shoving receipts from sketchy publications into their pockets as they make cases for merit raises. The university could have responded by altering its incentive programs, and those stung by Pyne’s research could have acknowledged their gaming of the system. Instead, they’re doing this, which is unfortunate, but also just as unfortunately, unsurprising.

Filed Under: academic freedom, derek pine, free speech, predatory publishing
Companies: thompson rivers university

EFF Goes To Bat For Free Speech, Asks Appeals Court To Uphold Injunction Against California's Stupid 'Anti-Ageism' Law

Free Speech

from the can't-fix-stupid.-but-you-can-enjoin-it. dept

Because the state is an idiot, the attorney general of California is appealing the federal court decision permanently preventing the state’s government from enforcing its ultra-stupid “anti-ageism” law. The law — which would do absolutely nothing to prevent movie studios from engaging in biased hiring — targeted the Internet Movie Database (IMDb), preventing it from publishing facts about actors and actresses. This asinine, First Amendment-trampling law was prompted by failed litigation against IMDb by an actress who felt she was losing roles to younger actresses because the site had published her birthdate.

The federal court needed only six pages to tell the state how terrible its law was and what impact it would have on protected speech. This ridiculous argument — supported by beneficiaries of the First Amendment (the Screen Actors Guild) — was quickly dismantled by the presiding judge:

SAG-AFTRA contends that publication of facts about the ages of people in the entertainment industry can be banned because these facts “facilitate” age discrimination – an argument that, if successful, would enable states to forbid publication of virtually any fact. There is no support in controlling case law for the proposition that a state may ban publication of facts to impede a third party’s possible reliance on those facts to engage in discrimination.

The lawsuit persists, thanks to the state’s infinite supply of time and other people’s money. The obvious First Amendment violations are being pushed again on appeal. The EFF — joined by The First Amendment Coalition, Wikimedia Foundation, Media Law Resource Center, and The Center for Democracy & Technology — has filed a brief [PDF] in support of IMDb and Constitutional lawmaking in general.

The brief argues the First Amendment protects IMDb’s publication of facts about people listed in its pages. That much should be painfully obvious, but the state can’t seem see past its own do-somethingism. But, just as importantly, there’s a First Amendment right to access factual information of public interest. And these facts definitely are of public interest — something inadvertently argued by the law itself. If there’s ageism in the movie industry, the more facts everyone has to work with, the more a case can be made the industry is engaging in discriminatory practices. Removing this info from circulation actually enables ageism by making movie studios the sole repository of this data.

The state should be embarrassed it’s actually appealing the decision shutting down its obviously unconstitutional law. It’s not going to get a win at the appellate level either, not when the best arguments it can offer have holes large enough to drive trucks full of First Amendment precedent through them. But I guess shame isn’t part of the equation when all you’re doing is flushing other people’s money down the toilet.

Filed Under: 1st amendment, age, ageism, california, facts, free speech, imdb
Companies: sag-aftra

Canada Rejects A Free Press: Supreme Court Says Journalist Must Hand Over Sources

Free Speech

from the shameful dept

In a very unfortunate bit of news, the Canadian Supreme Court on Friday ruled that there is no source protection for journalists in Canada, and a Vice Media reporter, Ben Makuch, is required to hand over his sources from an investigation he did with a Canadian man who claimed to have joined ISIS. Makuch had interviewed Farad Mohamed Shirdon back in 2015, and the Royal Canadian Mounted Police (RCMP) demanded access to all of his information. Vice and Makuch refused. In 2016, a lower court ruled against Vice and on appeal, the media organization lost again. Given those two loses, perhaps the eventual Supreme Court ruling isn’t that surprising, but it is still extremely disappointing and worrisome.

As Vice noted in an editorial posted after the ruling, this is a dark day for press freedom:

Lawyers for VICE Canada argued unsuccessfully through three levels of court that the RCMP is fishing for information and is effectively forcing a journalist to be an agent of the state. With this court decision hanging in the balance for years, Makuch has continued to produce fearless and important journalism on sensitive and often dangerous topics. Today?s decision will no doubt have a chilling effect on both sources, who may be reluctant to talk to reporters, and on journalists themselves, who could be less inclined to report on sensitive issues.

While our lawyers lost, we strongly believe that the journalism?which is already under attack across the globe?needs to be free from state intervention.

To some extent, we’ve dealt with this issue in the US as well, where some believe the 1st Amendment should already protect reporters and media orgs from giving up information on sources, but where the government still has gone to court — such as in the case of James Risen — to try to force journalists to reveal sources.

And while there have been some attempts at creating so-called “shield laws” against these sorts of things, unfortunately, nearly every attempt to do so would require the government to define who counts as a journalist, which would also be a huge 1st Amendment problem. (And, of course, over in Europe there’s an issue where Romania has been trying to use the GDPR to force a reporter to cough up sources).

I know that some people don’t think this is that big of a deal, but it is a huge deal if you want journalists to be free to investigate and report on things like government corruption and abuse. To do that, journalists rely on sources providing them information — and to get sources to provide you information, journalists frequently need to guarantee them anonymity for fairly obvious reasons. But when governments can force away that anonymity, it creates a huge mess. Sources will be much less willing to come forward, as they know that even if a journalist promises protection, they can’t guarantee it against a demand from the government. This will lead to significantly less whistleblowing, especially in important cases.

As Vice says:

It should go without saying: we are all better off when journalism operates freely, without interference from the state. Otherwise, leaders remain unchecked, massive corporations undermine elections, and the stories of the most vulnerable members of society remain untold. This might seem like hyperbole, but a quick glance at the recent headlines in any major publication should serve as proof that these things are happening.

It’s too bad that Canada has decided to flush that kind of openness away.

Filed Under: ben makuch, canada, free speech, journalism, shield law, source protection, sources
Companies: vice

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

Free Speech

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.

Filed Under: frameworks, free speech, social media

How Civil Subpoenas Are Used To Unmask Online Speakers, And How A Recent Decision Will Help Deter Bogus Ones

Free Speech

from the unexpected-good-news dept

Important cases don’t always happen with a lot of fanfare. It may be easy to follow what the US Supreme Court is up to, with its relatively small docket of high-profile matters, but plenty of other important cases get resolved by state and lower courts around the country with much less attention but just as much import.

This decision by a California appeals court, Roe v. Halbig, is one such example, and happily the impact it stands to have is a good one. It isn’t a showy decision declaring some new principle of liberty. Rather, it stands to quietly help ensure that codified protections for speech, and anonymous speech in particular, work as intended.

We’ve written many times before about how important it is that anonymous speech be protected. Indeed, the US Supreme Court has found that the First Amendment includes the right to speak anonymously, because without that right a lot of important speech could not happen. But it’s one thing to say that anonymous speech must be protected; it’s another to make sure that anonymous online speakers can remain anonymous on a practical level. If it is too easy to unmask speakers, then their right to speak anonymously becomes illusory.

To prevent the right to anonymous speech from becoming meaningless, it’s important that discovery instruments, like subpoenas, intended to unmask speakers, not be vulnerable to being abused, especially by plaintiffs who don’t have a legitimate need to unmask their critics. Because not only is a SLAPP suit chilling to speech, but so is a subpoena arising from a SLAPP suit that strips a speaker of the anonymous protection they counted on having when they spoke.

This decision will help prevent the latter. To understand how, it helps to understand how these subpoenas get used.

What typically happens is that a SLAPP is filed in another state (or country), likely one that does not have a robust anti-SLAPP law, and names a “John Doe” defendant. The plaintiff then issues a subpoena connected to the case targeted at whatever Internet platform (e.g., Twitter, Google, Facebook, Automattic/WordPress, Yelp, Glassdoor, etc.) or platforms may have information that would help identify who the speaker was. Obviously this information would be needed in order to maintain the lawsuit ? you need to know who you are suing in order to actually sue them ? but there is nothing requiring a lawsuit to continue once the identification is made. Sometimes SLAPP plaintiffs file lawsuits only as a vehicle to learn who their critic was because that’s all they need to be able to make their critic regret speaking against them.

If the platform is exposed to the jurisdiction of this other state, and thus subject to the subpoena, then all of that state’s rules about subpoenas will govern what comes next. But if the California-based platform is not subject to the jurisdiction of this other state, then the plaintiff will need to “domesticate” it with the court of the county in California where the platform is located. It is generally easy to domesticate a subpoena; any California-licensed attorney can issue one on a special form provided by the California courts. It contains the same demand to produce information that the out-of-state subpoena had, only now the demand is governed by California law with its various speech-protecting rules.

In general, a platform will try to notify the user that it has received the subpoena to unmask them. (This is an important step, which is why we’ve also been so critical of discovery rules preventing this notice.) Sometimes the platforms might even try to fight the subpoena themselves, which some recent California appellate cases said they have the right to do. It also means that when the courts consider whether to quash a subpoena they will use the Krinsky test, which is a relatively speaker-protective test used by courts to decide whether there is a sufficient basis to warrant a speaker being unmasked. Courts won’t definitively decide the case at this stage, but per the test they will not allow a speaker to be identified if the plaintiff has not made at least a prima facie showing that the claims in the lawsuit may be valid. Speakers shouldn’t lose their anonymity if there’s no chance that the plaintiff might win.

And then that’s where this case comes in. Because if the motion to quash the subpoena is successful, the party who brought the motion gets to recover the fees and costs of doing so.

The rule at issue here is much like the anti-SLAPP statute, which serves to both compensate a wronged speaker who has been forced to defend a lawsuit targeting their protected speech and also to deter plaintiffs from bringing these garbage lawsuits in the first place by making the plaintiffs pay the defendant’s legal fees. But the anti-SLAPP statute only governs actual lawsuits [p. 13]. It doesn’t have any effect on similarly meritless subpoenas arising from out-of-state SLAPPs. In order to prevent litigants from filing their lawsuits in other states (or countries) beyond the reach of the California anti-SLAPP law, and then using those meritless lawsuits as a basis to issue subpoenas to unmask their critics, in 2008 the California legislature inserted some language into its rules of civil procedure to address this situation. Section 1987.2 of the California Code of Civil Procedure reads:

(c)?If a motion is filed under Section 1987.1 for an order to quash or modify a subpoena from a court of this state for personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code , for use in an action pending in another state, territory, or district of the United States, or in a foreign nation, and that subpoena has been served on any Internet service provider, or on the provider of any other interactive computer service, as defined in Section 230(f)(2) of Title 47 of the United States Code , if the moving party prevails, and if the underlying action arises from the moving party’s exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action, the court shall award the amount of the reasonable expenses incurred in making the motion, including reasonable attorney’s fees.

In other words, if a subpoena targeting protected online speech is successfully quashed, then, like with the anti-SLAPP statute, the court must award the party who expended the resources to quash the subpoena the fees and costs they had to spend to do it. Like the anti-SLAPP statute this language both serves to compensate a wronged-speaker for the defense of their speech rights and is a deterrent to others who otherwise might be inclined to casually issue subpoenas to harass their anonymous critics.

[T]he legislative history of section 1987.2, subdivision (c) highlights the Legislature?s focus on the burden on free speech posed by subpoenas derived from out-of-state cases targeting anonymous speakers on the Internet; the Legislature?s concern with the costs of litigating cases threatening free speech; and the Legislature?s intent to protect the exercise of free speech on the Internet. The anti-SLAPP statute reflects similar considerations. [p. 15]

Given how many Internet platforms there are in California, this is a particularly powerful piece of legal code. It’s a significant reason why we’ve praised decisions requiring subpoenas to be domesticated in California, where so many platform companies are based, so that their users can benefit from the protection that this legal code affords. Similar protection is not generally available in other states (although it really should be), which means that if a platform is forced to respond to a subpoena governed by another state’s law, the users will be on their own to fund their own defense.

But even though this powerful language has been on the books for a decade, there have not been many cases interpreting or affirming it. In fact, the court here suggests it may be the first, which is partly why this case is so important. [p. 28].

For one thing, it helps make it much more usable for Doe defendants. To explain why, we need to return to the story about how these subpoenas play out. After all, the courts don’t automatically run the Krinsky test on every issued subpoena. First the Doe defendant has to find counsel to help challenge it, which is much easier to do when there is the more certain promise of fee recovery. Next, the Doe defendant has to get the subpoena challenge in the courthouse door. Unhelpfully, every California county’s courts handle these petitions to quash a bit differently (which can present challenges for counsel, who needs to figure out what these procedures are ? this is not an area of law well-documented in practice guides).

Also, some counties’ courts require these petitions to quash be adjudicated by a rotating batch of pro-tem judges. These are practicing lawyers trusted by the courts to help clear the thicket of day-to-day discovery disputes that regularly arise from California litigation and would otherwise drown the courts without the extra help. Unfortunately they are not necessarily equipped to adjudicate the significant free speech issues that happen to end up before them because they come wrapped as a discovery matter ? in this case, a motion to quash a subpoena.

(Note also that because these subpoenas are often channeled through the discovery departments of the county courts that is likely why there has been so little written precedent before now, because this sort of adjudication generally leaves no formal written decision, or even much of a record at all.)

So this case allows Doe defendants to more efficiently educate these judges. Not only does it provide a clear judicial precedent interpreting the procedural language and showing that its protection is real and meaningful, but, in rejecting the fee award as being unduly discounted, it tells these judges that the fee awards at stake in these cases are not only mandatory but potentially substantial. It is an important admonition because it is extremely rare that in a normal discovery dispute a judge would award a prevailing party more than a few thousand dollars. Judges hearing discovery matters may therefore be disinclined to ever award more. But it may realistically require an amount deep into five figures in order to properly quash one of these speech-chilling subpoenas, and here the appellate court says that these cost claims should not be presumptively discounted simply because they may be large.

The total bill came to $42,273 for 192 hours of attorneys? work plus $308 for the paralegal?s time. Based on these numbers, the trial court stated, ?[$]42,000 was a lot, extreme in setting in this case. . . . I think a petition to quash a subpoena should not require that amount of time. So I?m going to award $22,000 in fees.? The trial court made clear that, in its view, Roe?s attorneys had spent an unreasonable amount of time on the case. The trial court is entitled to draw that conclusion, for, ?an ?experienced trial judge is the best judge of the value of professional services rendered in [her] court.? ? (Walent v. Commission on Professional Competence etc. (2017) 9 Cal.App.5th 745, 748.) Nevertheless, the starting point for the trial court?s calculation must be all of the hours counsel has spent on the case. Roe suggests that perhaps the trial court awarded an amount equal to the time his attorneys spent on the initial motion to quash. If the trial court?s fee award were based on this metric, it would constitute an abuse of discretion. Halbig filed an opposition to the motion to quash and withdrew the subpoena; both of those events reasonably required further briefing from Roe. An award based solely on the attorney hours spent preparing the initial motion to quash would violate the principle that the starting point of the fee calculation must be all of the attorney hours actually spent on the case. (Ketchum, supra, 24 Cal.4th at pp. 1131-1132.) [p. 27]

This decision also cleared up an area of potential ambiguity in the code’s applicability by discussing what it means to be a “prevailing party” eligible to recover fees and costs. Here’s the problem that this case illustrated: the Doe defendant had to spend a lot of money trying to quash the subpoena, but before the court was able to rule on the original motion to quash, the plaintiff withdrew the subpoena. The question the appeals court had to decide was whether that withdrawal made the Doe defendant ineligible to recover as a “prevailing party” since there was no judicial victory.

The appeals court decided that the Doe defendant could still collect, observing that it was impossible for the defendant to know whether they were out of the woods. The plaintiff, in rescinding the subpoena, did so explicitly “without prejudice,” meaning that it could be reissued at any time, and the court found it contrary to the purpose of 1987.2 to leave the defendant uncompensated for the expenditure they had been forced to make.

Halbig argues that, once he had withdrawn the subpoena, Roe had no reason to fear that Halbig?s further efforts would unmask his identity, and he maintains that Roe?s refusal to withdraw the motion to quash needlessly incurred extra costs [?] Halbig?s argument, however, ignores the possibility that he could have sought another subpoena for Roe?s identity. Halbig asked for and received a ?dismissal? of the Google subpoena ?without prejudice.? The record contains no evidence that at the time of the hearing on the motion to quash Halbig had determined the identity of the ?Doe? defendants or dismissed the underlying lawsuit in Florida. As noted in the analogous anti-SLAPP context, ?[t]he specter of the action being refiled (at least until the statute of limitations had run) would continue to have a significant chilling effect on the defendant?s exercise of its First Amendment rights. At that point, the plaintiff would have accomplished all the wrongdoing that triggers the defendant?s eligibility for attorney?s fees, but the defendant would be cheated of redress.? (Coltrain, supra, 66 Cal.App.4th at pp. 106-107.) [p. 21-22]

Filed Under: anonymous speech, anti-slapp, california, halbig, slapp, subpoenas, supreme court, unmasking

Our Bipolar Free-Speech Disorder And How To Fix It (Part 2)

Free Speech

from the the-free-speech-triangle dept

In Part 1 of this series, I gave attention to law professor Jack Balkin’s model of “free speech as a triangle,” where each vertex of the triangle represents a group of stakeholders. The first vertex is government and intergovernmental actors. The second is internet platform and infrastructure providers, and the third is users themselves. This “triangle” model of speech actors is useful because it enables us to characterize the relationships among each set of actors, thereby illuminating how the nature of regulation of speech has changed and become more complicated than it used to be.

Take a look again at Balkin’s Figure 1.

Although it’s clearer when we visualize all the players in the free-speech regulation landscape that a “free-speech triangle” at least captures more complexity than the usual speakers-against-the-government or speakers-against-the-companies or companies-against-the-government models, the fact is that our constitutional law and legal traditions predispose us to think of these questions in binary rather than, uh, “trinary” terms. We’ve been thinking this way for centuries, and it’s a hard habit to shake. But shaking the binary habit is a necessity if we’re going to get the free-speech ecosystem right in this century.

To do this we first have to look at how we typically reduce these “trinary” models to the binary models we’re more used to dealing with. With three classes of actors, there are three possible “dyads” of relationships: user?platform, government?platform, and user?government.

(a) Dyad 1: User complaints against platforms (censorship and data gathering)

Users’ complaints about platforms may ignore or obscure the effects of government demands on platforms and their content-moderation policies.

Typically, public controversies around internet freedom of expression are framed by news coverage and analysis as well as by stakeholders themselves, as binary oppositions. If there is a conflict over content between (for example) Facebook and a user, especially if it occurs more than once, that user may conclude that that her content was removed for fundamentally political reasons. This perception may be exacerbated if the censorship occurred and was framed as a violation of the platform’s terms of service. A user subject to such censorship may believe that her content is no more objectionable than that of users who weren’t censored, or that her content is being censored while content that is just as heated, but representing a different political point of view, isn’t being censored. Naturally enough, this outcome seems unfair, and a user may infer that the platform as a whole is politically biased against those of her political beliefs. It should be noted that complaints about politically motivated censorship apparently come from most and perhaps all sectors.

A second complaint from users may derive from data collection by a platform. This may not directly affect the direct content of a user’s speech, but it may affect the kind of content she encounters, which, when driven by algorithms aimed increasing her engagement on the platform, may serve not only to urge her participation in more or more commercial transactions, but also to “radicalize” her, anger her, or otherwise disturb her. Even if an individual may judge herself more or less immune from algorithmically driven urges to view more and more radical and radicalizing content, she may be disturbed by the radicalizing effects that such content may be having on her culture generally. (See, e.g., Tufekci, Zeynep, “YouTube, the Great Radicalizer.”) And she may be disturbed at how an apparently more radicalized culture around her interacts with her in more disturbing ways.

Users may be concerned both about censorship of their own content (censorship that may seem unjustified) and platforms’ use of data, which may seem to be designed to manipulate them or else manipulate other people. In response, users (and others) may demand that platforms track bad speakers or retain data about who bad speakers are (e.g., to prevent bad speakers from abandoning “burned” user accounts and returning with new accounts to create the same problems) as well as about what speakers say (so as to police bad speech more). But there are two likely outcomes of a short-term pursuit of pressuring platforms to censor more or differently, or to gather less data (about users themselves) or to gather more data (about how users’ data are being used). One obvious, predictable outcome of these pressures is that, to the extent the companies respond to them, governments may leverage platforms’ responses to user complaints in ways that make it easier for government to pressure platforms for more user content control (not always with the same concerns that individual users have) or to provide user data (because governments like to exercise the “third-party” doctrine to get access to data that users have “voluntarily” left behind on internet companies’ and platform providers’ services).

(b) Dyad 2: Governments’ demands on platforms (content and data)

Government efforts to impose new moderation obligations on platforms, even in response to user complaints, may result in versions of the platforms that users value less, as well as more pressure on government to intervene further.

In the United States, internet platform companies (like many other entities, including ordinary blog-hosting servers and arguably bloggers themselves) will find that their First Amendment rights are buttressed and extended by Section 230 of the Communications Decency Act, which generally prohibits content-based liability for those who reproduce on the internet content that is originated by others. Although a full discussion of the breadth and the exceptions to Section 230?which was enacted as part of the omnibus federal Telecommunications Act reform in 1996?is beyond the scope of this particular paper, it is important to underscore that Section 230 extends the scope of protection for “intermediaries” more broadly than First Amendment case law alone, if we are to judge by relevant digital-platform cases prior to 1996, might have done. But the embryonic case law in those early years of the digital revolution seemed to be moving in a direction that would have resulted in at least some First Amendment protections for platforms consistent with principles that protect traditional bookstores from legal liability for the content of particular books. One of the earliest cases prominent cases concerning online computer services, Cubby v. CompuServe (1991), drew heavily on a 1959 Supreme Court case, Smith v. California, that established that bookstores and newsstands were properly understood to deserve First Amendment protections based on their importance to the distribution of First Amendment-protected content.

Section 230’s broad, bright-line protections (taken together with the copyright-specific protections for internet platforms created by the Digital Millennium Copyright Act in 1998) are widely interpreted by legal analysts and commentators as having created the legal framework that gave rise to internet-company success stories like Google, Facebook, and Twitter. These companies, as well as a raft of smaller, successful enterprises like Wikipedia and Reddit, originated in the United States and were protected in their infancy by Section 230. Even critics of the platforms?and there are many?typically attribute the success of these enterprises to the scope of Section 230. So it’s no great surprise to discover that many and perhaps most critics of these companies (who may be government actors or private individuals) have become critics of Section 230 and want to repeal or amend it.

In particular, government entities in the United States, both at the federal level and at the state level, have sought to impose greater obligations on internet platforms not merely to remove content that is purportedly illegal, but also to prevent that content from being broadcast by a platform in the first place. The notice-and-takedown model of the Digital Millennium Copyright Act of 1998, which lends itself to automated enforcement and remedies to a higher degree than non-copyright-related content complaints, is frequently suggested by government stakeholders as a model for how platforms ought to respond to complaints about other types of purportedly illegal content, including user-generated content. The fact that copyright enforcement, as distinct from enforcement other communications-related crimes or private causes of action, is comparatively much simpler than most other remedies in communications law, is a fact that is typically passed over by those who are unsympathetic to today’s social-media landscape.

Although I’m focusing here primarily on U.S. government entities, this tendency is also evident among the governments of many other countries, including many countries that rank as “free” or “partly free” in Freedom House’s annual world freedom report. It may be reasonably asserted that the impulse of governments to offload the work of screening for illegal (or legal but disturbing) content is international. The European Union, for example, is actively exploring regulatory schemes that implicitly or explicitly impose content-policing norms on platform companies and that impose quick and large penalties if the platforms fail to comply. American platforms, which operate internationally, must abide by these systems at least with regard to their content delivery within EU jurisdictions as well as (some European regulators have argued) anywhere else in the world.

Added to governments’ impulse to impose content restrictions and policing obligations on platforms is governments’ hunger for the data that platforms collect. Not every aspect of the data that platforms like Google and Facebook and Twitter collect on users is publicly known, nor have the algorithms (decision-making processes and criteria implemented by computers) that the platforms use to decide what content may need monitoring, or what content users might prefer, being generally published. The reasons some aspects of the platforms’ algorithmic decision-making may be generally reduced to two primary arguments. First, the platforms’ particular choices about algorithmically selecting and serving content, based on user data, may reasonably classed as trade secrets, so that if they were made utterly public a competitor could free-ride on the platforms’ (former) trade secrets to develop competing products. Second, if platform algorithms are made wholly public, it becomes easier for anyone?ranging from commercial interests to mischievous hackers and state actors?to “game” content so that it is served to more users by the platform algorithms.

Governments’ recognition that protections for platforms has made it easier for the platforms to survive and thrive may wish to modify the protections they have granted, or to impose further content-moderation obligations on platforms as a condition of statutory protections. But even AI-assisted moderation measures will necessarily be either post-hoc (which means that lots of objectionable content will be public before the platform curates it) or pre-hoc (which means that platforms will become gatekeepers of public participation, shoehorning users into a traditional publishing model or an online-forum model as constrained by top editors as the early version of the joint Sears-IBM service Prodigy was).

(c) Dyad 3: People (and traditional press) versus government.

New, frequently market-dominant internet platforms for speakers create new government temptations and capabilities to (i) surveil online speech, (ii) leverage platforms to suppress dissident or unpopular speech or deplatform speakers, and/or (iii) employ or compel platforms to manipulate public opinion (or to regulate or suppress manipulation).

It’s trivially demonstrable that some great percentage of complaints about censorship in open societies is grounded in individual speakers’ or traditional publishers’ complaints that government is acting to suppress certain kinds of speech. Frequently the speech in question is political speech but sometimes it is speech of other kinds (e.g., allegedly defamatory, threatening, fraudulent, or obscene) of speech. This dyad is, for the most part, the primary subject matter of traditional First Amendment law. It is also a primary focus of international free-expression law where freedom of expression is understood to be guaranteed by national or international human-rights instruments (notably Article 19 of the International Covenant on Civil and Political Rights).

But this dyad has been distorted in the twenty-first century, in which, more often than not, troubling political speech or other kinds of troubling public speech are normally mediated by internet platforms. It is easier on some platforms, but by no means all platforms, for speakers to be anonymous or pseudonymous. Anonymous or pseudonymous speech is not universally regarded by governments as a boon to public discourse, and frequently governments will want to track or even prosecute certain kinds of speakers. Tracking such speakers was difficult (although not necessarily impossible) in the pre-internet era of unsigned postcards and ubiquitous public telephones. But internet platforms have created new opportunities to discover, track, and suppress speech as a result of the platforms’ collection of user data for their own purposes.

Every successful internet platform that allows users to express themselves has been a target of government demands for disclosure of information about users. In addition, internet platforms are increasingly the target of government efforts to mandate assistance (including the building of more surveillance-supportive technologies) in criminal-law or national-security investigations. In most ways this is analogous to the 1994 passage of CALEA in the United States, which obligated telephone companies (that is, providers of voice telephony) to build technologies that facilitated wiretapping. But a major difference is that the internet platforms more often than not capture far more information about users than telephone companies traditionally had done. (This generalization to some extent oversimplifies the difference, given that there is frequently convergence between the suites of services that internet platforms and telephone companies?or cable companies?now offer their users.)

Governmental monitoring may suppress dissenting (or otherwise troubling) speech, but governments (and other political actors, such as political parties) may also use internet platforms to create or potentiate certain kinds of political speech in opposition to the interests of users. Siva Vaidhyanathan documents particular uses of Facebook advertising in ways that aimed to achieve political results, including not just voting for an approved candidate but also dissuasion of some voters from voting at all, in the 2016 election.

As Vaidhyanathan writes: “Custom Audiences is a powerful tool that was not available to President Barack Obama and Governor Mitt Romney when they ran for president in 2012. It was developed in 2014 to help Facebook reach the takeoff point in profits and revenue.” Plus this: “Because Facebook develops advertising tools for firms that sell shoes and cosmetics and only later invites political campaigns to use them, ‘they never worried about the worst-case abuse of this capability, unaccountable, unreviewable political ads,’ said Professor David Carroll of the Parsons School of Design.”

There are legitimate differences of opinion regarding the proper regime for regulation of political advertising, as well as regarding the extent to which regulation of political advertising can be implemented consistent with existing First Amendment precedent. It should be noted, however, that advertising of the sort that Vaidhyanathan discusses raises issues not only of campaign spending (although in 2016, at least, the spending on targeted Facebook political advertising of the “Custom Audiences” variety seems to have been comparatively small) as of transparency and accountability. Advertising that’s micro-targeted and ephemeral is arguably not accountable to the degree that an open society should require. There will be temptations for government actors to use mechanisms like “Custom Audiences” to suppress opponents’ speech?and there also will be temptations by government to limit or even abolish such micro-targeted instances of political speech.

What is most relevant here is that the government may address temptations either to employ features like “Custom Audiences” or to suppress the use of those features by other political actors in non-transparent or less formal ways, (e.g., through the “jawboning” that Jack Balkin describes in his “New School Speech Regulation” paper). Platforms?especially market-dominant platforms that, as a function of their success and dominance, may be particularly targeted on speech issues?may feel pressured to remove dissident speech in response to government “jawboning” or other threats of regulation. And, given the limitations of both automated and human-based filtering, a platform that feels compelled to respond to such governmental pressure is almost certain to generate results that are inconsistent and that give rise to further dissatisfaction, complaints, and suspicions on the part of users?not just the users subject to censorship or deplatforming, but also users who witness such actions and disapprove of them.

Considered both separately and together, it seems clear that each of the traditional “dyadic” models of how to regulate free speech tend to focus on two vertices of the free-speech triangle while overlooking a third vertex, whose stakeholders may intervene or distort or exploit or be exploited by outcomes of conflicts of the other two stakeholder groups. What this suggests is that no “dyadic” conception of the free-speech ecosystem is sufficiently complex and stable enough to protect freedom of expression or, for that matter, citizens’ autonomy interests in privacy and self-determination. This leaves us with the question of whether it is possible to direct our law and policy in a direction that takes into account today’s “triangular” free-speech ecosystem in ways that provide stable, durable, expansive protections of freedom of speech and other valid interests of all three stakeholder groups. That question is the subject of Part 3 of this series.

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

Filed Under: 1st amendment, free speech, jack balkin, social media

Our Bipolar Free-Speech Disorder And How To Fix It (Part 1)

Free Speech

from the free-speech-and-social-media dept

When we argue how to respond to complaints about social media and internet companies, the resulting debate seems to break down into two sides. On one side, typically, are those who argue that it ought to be straightforward for companies to monitor (or censor) more problematic content. On the other are people who insist that the internet and its forums and platforms?including the large dominant ones like Facebook and Twitter?have become central channels of how to exercise freedom of expression in the 21st century, and we don’t want to risk that freedom by forcing the companies to be monitors or censors, not least because they’re guaranteed to make as many lousy decisions as good ones.

By reflex and inclination, I usually have fallen into the latter group. But after a couple of years of watching various slow-motion train wrecks centering on social media, I think it’s time to break out of the bipolar disorder that afflicts our free-speech talk. Thanks primarily to a series of law-review articles by Yale law professor Jack Balkin, I now believe free-speech debates no longer can be simplified in terms of government-versus-people, companies versus people, or government versus companies. No “bipolar” view of free speech on the internet is going to give us the complete answers, and it’s more likely than not to give us wrong answers, because today speech on the internet isn’t really bipolar at all?it’s an “ecosystem.”

Sometimes this is hard for civil libertarians, particularly Americans, to grasp. The First Amendment (like analogous free-speech guarantees in other democracies) tends to reduce every free-speech or free-press issue to people-versus-government. The people spoke, and the government sought to regulate that speech. By its terms, the First Amendment is directed solely at averting government impulses to censor against (a) publishers’ right to publish controversial content and/or (b) individual speakers’ right to speak controversial content. This is why First Amendment cases most commonly are named either with the government as a listed party (e.g., Chaplinsky v. New Hampshire) or a representative of the government, acting in his or her government role as a government official, as a named party (e.g. Attorney General Janet Reno in Reno v. ACLU).

But in some sense we’ve always known that this model is oversimplified. Even cases in which the complainant was nominally a private party still involved government action in the form of enactment of speech-restrictive laws that gave rise to the complaint. In New York Times Inc. v. Sullivan, the plaintiff, Sullivan, was a public official, but his defamation case against the New York Times was grounded in his reputational interest as an ordinary citizen. In Miami Herald Publishing Company v. Tornillo, plaintiff Tornillo was a citizen running for a state-government office who invoked a state-mandated “right of reply” because he had wanted to compel the Herald to print his responses to editorials that were critical of his candidacy. In each of these cases, the plaintiff’s demand did not itself represent a direct exercise of government power. The private plaintiffs’ complaints were personal to them. Nevertheless, in each of these cases, the role of government (in protecting reputation as a valid legal interest, and in providing a political candidate a right of reply) was deemed by the Supreme Court to represent exercises of governmental power. For this reason, the Court concluded that these cases, despite their superficial focus on a private plaintiff’s cause of action, nonetheless fall under the scope of the First Amendment. Both newspaper defendants won their Supreme Court appeals.

By contrast, private speech-related disputes between private entities, such as companies or individuals, normally are not judged as directly raising First Amendment issues. In the internet era, if a platform like Facebook or Twitter chooses to censor content or deny service to a subscriber because of (an asserted) violation of its Terms of Service, or if a platform like Google chooses to delist a website that offers pharmaceutical drugs in violation of U.S. law or the law of other nations, any subsequent dispute is typically understood, at least initially, as a disagreement that does not raise First Amendment questions.

But the intersection between governmental action and private platforms and publishers has become both broader and blurrier in the course of the last decade. Partly this is because some platforms have become primary channels of communication for many individuals and businesses, and some of these platforms have become dominant in their markets. It is also due in part to concern about various ways the platforms have been employed with the goal of abusing individuals or groups, perpetrating fraud or other crimes, generating political unrest, or causing or increasing the probability of other socially harmful phenomena (including disinformation such as “fake news.”)

To some extent, the increasing role of internet platforms, including but not limited to social media such as Facebook and Twitter in Western developed countries, as one of the primary media for free expression was predictable. (For example, in Cyber Rights: Defending Free Speech in the Digital Age (Times Books, 1998), I wrote this: “Increasingly, citizens of the world will be getting their news from computer-based communications-electronic bulletin boards, conferencing services, and networks-which differ institutionally from traditional print media and broadcast journalism.” See also “Net Backlash = Fear of Freedom,” Wired, August 1995: “For many journalists, ‘freedom of the press’ is a privilege that can’t be entrusted to just anybody. And yet the Net does just that. At least potentially, pretty much anybody can say anything online – and it is almost impossible to shut them up.”)

What was perhaps less predictable, prior to the rise of market-dominant social-media platforms, is that government demands regarding content may result in “private governance” (where market-dominant companies become the agents of government demands but implement those demands less transparently than enacted legislation or recorded court cases do). What this has meant is that individual citizens concerned about exercising their freedom of expression in the internet era may find that exercising one’s option to “exit” (in the Albert O. Hirschman sense) may impose great costs.

At the same time, lack of transparency about platform policy (and private government) may make it difficult for individual speakers to interpret what laws or policies the censorship of their content (or the exclusion of themselves or others) in ways that enable them to give effective “voice” to their complaints. For example, they may infer that their censorship or “deplatforming” represents a political preference that has the effect of “silencing” their dissident views, which in a traditional public forum might be clearly understood as protected by First Amendment-grounded free-speech principles.

These perplexities, and the current public debates about freedom of speech on the internet, create the need for a reconsideration of the internet free speech not as a simplistic dyad, or as a set of simplistic, self-contained dyads, but instead as an ecosystem in which decisions in one part may well lead to unexpected, undesired effects in other parts. A better approach would be to consider internet freedom of expression “ecologically,” to consider expression on the internet an “ecosystem,” and to think about various legal, regulatory, policy, and economic choices as “free-speech environmentalists,” with the underlying goal of protecting the internet free-speech ecosystem in ways that protect individuals’ fundamental rights.

Of course, individuals have more fundamental rights than freedom of expression. Notably, there is an international consensus that individuals deserve, inter alia, some kind of rights to privacy, although, as with expression, there is some disagreement about what the scope of privacy rights should be. But changing the consensus paradigm of freedom of expression so that it is understood as an ecosystem not only will improve law, regulation, and policy regarding free speech, but also will provide a model that possibly may be fruitful in other areas, like privacy.

In short, we need a theory of free speech that takes into account complexity. We need to build consensus around that theory so that stakeholders with a wide range of political beliefs nevertheless share a commitment to the complexity-accommodating paradigm. In order to do this, we need to begin with a taxonomy of stakeholders. Once we have the taxonomy, we need to identify how the players interact with one another. And ultimately we need some initiatives that suggest how we may address free-speech issues in ways that are not shortsighted, reactive, and reductive, but forward-looking, prospective, and inclusive.

The internet ecosystem: a taxonomy.

Fortunately, Jack Balkin’s recent series of law-review articles has given us a head start on building that theory, outlining the complex relationships that now exist among citizens, government actors, and companies that function as intermediaries. These paradigm-challenging articles culminate in a synthesis is reflected in his 2018 law-review article “Free Speech is a Triangle.”

Balkin rejects simple dyadic models of free speech. Because an infographic is sometimes worth 1000 words, it may be most convenient to reproduce Balkin’s diagram of what he refers to as a “pluralistic” (rather than “dyadic”) model of free speech. Here it is:

Balkin recognizes that the triangle may be taken as oversimplifying the character of particular entities within any set of parties at a “corner.” For example, social-media platforms are not the same things as payment systems, which aren’t the same things as search engines or standard-setting organizations. Nevertheless, entities in any given corner may have roughly the same interests and play roughly the same roles. End-users are not the same things as “Legacy Media” (e.g., the Wall Street Journal or the Guardian), yet both may be subject to “private governance” from internet platforms or subject to “old-school speech regulation” (laws and regulation) imposed by nation-states or treaties. (“New-school speech regulation” may arise when governments compel or pressure companies to exercise speech-suppressing “private governance.”)

Certainly some entities within this triangularized model may be “flattened” in the diagram in ways that don’t reveal the depth of their relationships to other parties. For example, a social-media company like Facebook may collect vastly more data (and use it in far more unregulated ways) than a payment system (and certainly far more than a standard-setting organization). Balkin addresses the problem of Big Data collection by social-media companies and others?including the issue of how Big Data may be used in ways that inhibit or distort free speech– by suggesting that such data-collecting companies be considered “information fiduciaries” with obligations that may parallel or be similar to those of more traditional fiduciaries such as doctors and lawyers. (He has developed this idea further in separate articles both sole-authored and co-authored with Jonathan Zittrain.)

Properly, the information-fiduciary paradigm maps more clearly to privacy interests rather than to free-expression interests, but collection, maintenance, and use of large amounts of user data may be used in free-speech contexts. The information-fiduciary concept may not seem to be directly relevant to content issues. But it’s indirectly relevant if the information fiduciary (possibly but not always at the behest of government) uses user data to try to manipulate users through content, or to disclose user content choices to government (for example).

In addition, information fiduciaries functioning as social-media platforms have a different relationship with the users, who create the content that makes these platforms attractive. In the traditional world of newspapers and radio, publishers had a close voluntary relationship with the speakers and writers who created their content, which meant that traditional-media entities had strong incentives to protect their creators generally. To some large degree, publisher and creator interests were aligned, although there are predictable frictions, as when a newspaper’s or broadcaster’s advertisers threaten to remove financial support for controversial speakers and writers.

With online platforms, that alignment is much weaker, if it exists at all: Platforms lack incentives to fight for their users’ content, and indeed may have incentives to censor it themselves for private profit (e.g., advertising dollars). In the same way that the traditional legal or financial or medical fiduciary relationship is necessary to correct possible misalignment of incentives, the “information fiduciary” relationship ought to be imposed on platforms to correct their misaligned incentives toward private censorship. In a strong sense, this concept of information fiduciary is a key to understanding how a new speech framework is arguably necessary, and how it might work.

I’ve written elsewhere about how Balkin’s concept of social-media companies (and others) as information fiduciaries might actually position the companies to be stronger and better advocates of free expression and privacy than they are now. But that’s only one piece of the puzzle when it comes to thinking ecologically about today’s internet free-speech issues. The other pieces require us to think about the other ways in which “bipolar thinking” about internet free speech not only causes us to misunderstand our problems but also tricks us into coming up bad solutions. And that’s the subject I’ll take up in Part 2.

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

Filed Under: 1st amendment, free speech, social media