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Evidently, the key legal basis for these media platforms is section 230 of the "Communications and Decency Act," which has recently come under Congressional scrutiny.Here is section 230: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
Figuring out how to revise this provision is one way of formulating what to do with these platforms.
Off the top of my head, I can only remind us all of the ludicrous brouhaha a few years ago when a Congressional committee was formed to investigate whether 'liberal' Facebook was curtailing the postings of conservative account-holders. Restricting their right to free spleen.For me personally ...'free speech in America' jumped-the-shark when some Republican -dominant Congress somehow made it legit for all radio stations in the country to be merged under just six companies. I still don't know with what jabberwocky logic they justified that, or how they slept at night afterwards.
It must have been deemed, 'unfair' to hold back profits from mega-corporations ...regardless of the dangers of creating a mono-state.
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Here is section 230: "No prov..."
Thanks, Bob, for finding that. I was going to look it up.
It will be "interesting" to see how they propose to amend this statute. If they eliminate it altogether, it will, as I say, be the end of Twitter, Facebook, et al.
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Alan, I agree with your inaugural comments launching this freedom of speech discussion topic. You have summarized our law’s preference for unrestricted free speech accurately.That preference is facing challenges today that may be different than the challenges of the past.
My wife recently called my attention to an article in the Sunday NY Times that described a family’s efforts to “deprogram” a radicalization of their aging father’s political views. It seems that father had embraced conspiracy theories and other Trumpian falsehoods in recent years that made it all but impossible to reason with him. After a lifetime as a middle of the road Democrat, father had become almost unrecognizable to his adult children. Life with him had become unpleasant.
In an act of love, this family decided to use their influence to keep dad away from Fox News, certain websites and etc. After some months, the change in dad was remarkable and family happiness has been restored.
Hearing my wife’s description of this story put me in mind of Plato’s arguments that the guardians of the city (in speech) must be kept from the poets who portray the gods as lacking virtue.
Was Plato on to something? In my efforts to be a thoughtful advocate for liberal democracy, I have not wavered in my support for healthy and comprehensive protections for the exercise of free speech. But the poets of the dark web, irresponsible broadcast radio, the rise of Fox News and other ‘alternative facts’ sources should not be ignored.
I am not ready for the government to step in, like the family in the NY Times article, and restrict our access to ideas. But I would like to understand exactly why conspiracies and alternative facts that reasonable people in the past would have rejected out of hand are now taking root in the minds of many.
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Good to see you! I'm still around but rarely comment because these conversations are very scholarly. I'd hate to dumb them down!
You could hardly do worse than I, Mimi. Ha. Anyway my contribution to kick off this discussion is my curiosity as to whether America in fact, has the strongest support of this principle in the world; or, whether any other countries surpass us. We touched on this a while ago in a sister-thread and I'm not re-raising the matter; just recalling how much of a political-football it is. Someone from this group --a resident of Sweden, I believe--PM'd me with juicy information on norms in Europe. But what I had been hearing was that, 'All the left-leaning nations you admire, also degrade free speech'.
When I tried to pinpoint their 'sensational' examples --and encountered vague or missing information --I ran into one of those insidious "catch-22" 's. "Naturally you can't find out the truth about restricted speech in Europe ...because those lefty governments are restricting the truth about these incidents!"
Nifty bit of history relating to the development of free-speech concepts.The "Areopagitica" of English author, John Milton (1608-1674). Written in 1644 while the English Civil War was ongoing.
https://en.wikipedia.org/wiki/Areopag...
The Wiki article supplies some toothsome observations even all the way down at the very bottom of the page. The relevance of this treatise to the present day, (including citations in SCOTUS opinions) seems up-to-date.
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Civility in local government public meetings has become less and less a desideratum during the last several years, as far-right audience members have accused public officials of all kinds of things in a manner that simulates a harangue rather than reasoned public discourse. However, the right to freedom of speech in the United States has a long tradition. Recently, the Massachusetts Supreme Judicial Court invoked the Massachusetts Constitution in holding that a speaker at a local public meeting has the right to be rude. See the March 17, 2023 New York Times article titled “Residents’ Right to Be Rude Upheld by Massachusetts Supreme Court”: https://www.nytimes.com/2023/03/17/us.... (In accordance with my New York Times subscription, the foregoing link provides access to this article for fourteen days without charge, notwithstanding the usual New York Times paywall.)
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Contrary to its reputation as a left-wing newspaper, this March 24, 2023 Washington Post Editorial opposes the “heckler’s veto” of left-wing students attempting to shout down nonviolent speech of right-wing figures: https://wapo.st/40gyIIG. (In accordance with my Washington Post subscription, the foregoing link provides access to this article for fourteen days without charge, notwithstanding the usual Washington Post paywall.)
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This April 9, 2023 New York Times article addresses free-speech issues at private universities, in this case, Stanford Law School: https://www.nytimes.com/2023/04/09/us.... (In accordance with my New York Times subscription, the foregoing link provides access to this article for fourteen days without charge, notwithstanding the usual New York Times paywall.)
It should be noted that the difference between private and public academic institutions in this context is that the latter are protected by the First Amendment whereas the former are not.
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https://penguinbookwriters.com/blog/i......"
Great! I wonder whether the conflict between red and blue states over such issues is going to lead to some sort of civil war. Perhaps Florida and Texas will (re)announce their secession from the Union.
The frenzy and furor of today's 'culture wars' indeed seems to portend that some Americans might be ready to contemplate secession again. The bitter divisiveness around our nation lately ...something's gotta give.
“We must all hang together, or assuredly we shall all hang separately.” ..." --Benjamin Franklin
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The bitter divisiveness around our nation lately ...somet..."
Yes, many conservatives in Texas and other such states advocate secession. My initial impulse is to say: "Goodbye and good luck!" Texas may be the only state that has a good constitutional/legal argument for secession, since it is the only state that joined the Union when it was an independent nation.
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Washington Post columnist Ruth Marcus, who has a B.A. from Yale and a J.D. from Harvard, authored a December 12, 2023 opinion column titled “Yes, Magill’s comments were offensive. But calls for her removal were wrong,” which can be accessed at https://wapo.st/46SgrUE. (As a result of my Washington Post subscription, the foregoing link can be accessed without charge for fourteen days, notwithstanding the usual Washington Post paywall.)
The first paragraph of Marcus’s column states: “Liz Magill’s congressional testimony about antisemitism and genocide was appallingly bad; in fact, like that of her two fellow university presidents, it was offensive and hurtful. Still, no one should celebrate her ouster as president of the University of Pennsylvania or hope that the others — “One down. Two to go,” chortled Rep. Elise Stefanik (R-N.Y.) — will follow in her wake.”
This matter involves the public interrogation by Stefanik and others, in a U.S. House of Representatives committee, of the presidents of the University of Pennsylvania, Harvard, and MIT, which are all private universities. As Marcus observes, these nongovernmental universities are not constrained by the First Amendment, which applies only to governmental bodies and officials. Accordingly, one might wonder why these presidents were summoned to Congress in the first place. What jurisdiction does Congress have over the policies of private universities, unless such universities are accused or suspected of violating a federal statute or administrative regulation (in which case, the matter might more appropriately be addressed in judicial or administrative proceedings)? Although I did not watch the congressional committee event or read a transcript of it, I have not, so far, seen anything that would trigger congressional jurisdiction over this matter.
Accordingly, when Marcus opines that calls for the removal of these presidents are wrong, she is entitled to her opinion, but it is not a legal opinion, notwithstanding her degree from Harvard Law School. Marcus strenuously objects to the pressure from private donors of these elite private universities to terminate or discipline these university presidents. Given, however, the private status of these educational institutions, it seems to me that these donors have a legal right to take that position and back it with their money. I suppose that Marcus is suggesting that they have no moral right to same, a view upon which I express no opinion.
I agree with Marcus’s following statements:
[C]alls for intifada and chants of “from the river to the sea” are, in my view, horrifyingly wrong and dangerous, inherently entailing violence against Israeli citizens. But they do not automatically rise to the level of endorsing genocide. Not to be naive about the significant overlap between anti-Zionism and antisemitism, these are distinct phenomena. It is possible to believe that Israel should not have been created and should not be maintained as a Jewish state and not be understood as advocating the elimination of Jews along the lines of Hitler’s final solution.I have not studied this matter in depth, but I am not aware that any of the statements attributed to students who oppose Israel actually advocate genocide, which Merriam-Webster defines as “the deliberate and systematic destruction of a racial, political, or cultural group” (https://www.merriam-webster.com/dicti...).
Instead, Magill, Gay and Kornbluth fell into Stefanik’s trap, too easily acceding to her expansive definition. “You understand that the use of the term intifada in the context of the Israeli-Arab conflict is indeed a call for violent armed resistance against the state of Israel, including violence against civilians and the genocide of Jews,” Stefanik asked Gay. The conversation proceeded down this path of conflation, with the presidents mystifyingly, repeatedly and infuriatingly resisting the invitation to state plainly that advocating genocide violated their campus codes.
Marcus also is correct, in my view, in stating the following:
Both sides in the long-running campus speech debate are guilty of hypocrisy and applying double standards. Conservatives who decried “cancel culture” and lampooned “snowflakes” melting over perceived slurs have a different, less robust vision of free speech protections when it comes to chants about intifada. Progressives who complained of being triggered by comments that offended their sensibilities now pose as defenders of free speech. This situation requires rules that are enforced in an evenhanded way.What’s good for the goose is good for the gander. Such self-contradictions by both Left and Right constitute a failure of the reasoning and critical thinking that should be a hallmark of higher education.
I am cross-filing the present post in the “Freedom of Speech” and “Reason, Informal Logic, Evidence, and Critical Thinking” topics of this Goodreads group.
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Veteran journalist Jeff Greenfield has written a May 2, 2024 article titled “Don’t Forget the Backlash to the ’60s” at https://www.politico.com/news/magazin.... This essay reiterates an important lesson in how politics works in the U.S. environment. The backlash to the 1960s campus protests resulted in the elections of Richard M. Nixon and, later, Ronald Reagan to the presidency. Those elections ushered in a long period of conservative government that was antithetical to much of the ideological program of the protesters.
I was a college and graduate student during the 1960s campus protests, and I remember them well. The main issue at that time was the Vietnam War, though the protests also involved other desiderata of left-wing ideology. As a result of the draft, many of the protesters had a personal stake in the protests, and such protest generally subsided after President Richard Nixon abolished the draft in January 1973.
As in the present protests, students during the 1960s took over college and university buildings, and some of the protesters were otherwise violent.
I agree with the position taken by President Joe Biden on May 2, 2024 in his following oral remarks (https://www.whitehouse.gov/briefing-r...
We’ve all seen the images. And they put to the test two fundamental American principles. . . .I couldn’t have said it better myself.
The first is the right to free speech and for people to peacefully assemble and make their voices heard. The second is the rule of law. Both must be upheld.
We are not an authoritarian nation where we silence people or squash dissent. The American people are heard. In fact, peaceful protest is in the best tradition of how Americans respond to consequential issues.
But — but neither are we a lawless country. We are a civil society, and order must prevail.
Throughout our history, we’ve often faced moments like this because we are a big, diverse, free-thinking, and freedom-loving nation.
In moments like this, there are always those who rush in to score political points. But this isn’t a moment for politics. It’s a moment for clarity.
So, let me be clear. Peaceful protest in America — violent protest is not protected; peaceful protest is. It’s against the law when violence occurs.
Destroying property is not a peaceful protest. It’s against the law.
Vandalism, trespassing, breaking windows, shutting down campuses, forcing the cancellation of classes and graduations — none of this is a peaceful protest.
Threatening people, intimidating people, instilling fear in people is not peaceful protest. It’s against the law.
Dissent is essential to democracy. But dissent must never lead to disorder or to denying the rights of others so students can finish the semester and their college education.
Look, it’s basically a matter of fairness. It’s a matter of what’s right. There’s the right to protest but not the right to cause chaos.
People have the right to get an education, the right to get a degree, the right to walk across the campus safely without fear of being attacked.
But let’s be clear about this as well. There should be no place on any campus, no place in America for antisemitism or threats of violence against Jewish students. There is no place for hate speech or violence of any kind, whether it’s antisemitism, Islamophobia, or discrimination against Arab Americans or Palestinian Americans.
It’s simply wrong. There is no place for racism in America. It’s all wrong. It’s un-American.
I understand people have strong feelings and deep convictions. In America, we respect the right and protect the right for them to express that. But it doesn’t mean anything goes. It needs to be done without violence, without destruction, without hate, and within the law.
You know, make no mistake: As President, I will always defend free speech. And I will always be just as strong in standing up for the rule of law.
That’s my responsibility to you, the American people, and my obligation to the Constitution.
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Representative Jerrold Nadler has long represented portions of Manhattan in the U.S. House of Representatives. A transcript of his May 3, 2024 interview with Politico is located at https://www.politico.com/news/magazin.... This is a very interesting interview. Nadler does not talk like an ordinary politician. He gives “yes” and “no” answers, sometime with a terse explanation of his position. I highly recommend reading this interview.
I am cross-filing the present post in the “Freedom of Speech,” “United States Constitution and Government,” and “International Law and Politics” topics.
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The University of Chicago has had a somewhat unique position on campus free speech during recent decades. That position is being tested in the current campus protests. See this May 7, 2024 New York Times article for details: https://www.nytimes.com/2024/05/06/us.... (In accordance with my New York Times subscription, the foregoing link provides access to this article for 30 days without charge, notwithstanding the usual New York Times paywall.)
As a student at the University of Chicago during the middle and late 1960s, I remember well the turmoil when students (some of whom I knew) took over the university’s administration building during the anti-Vietnam War protests. I was not a part of such actions.
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This is the May 7, 2024 explanation by University of Chicago President Paul Alivisatos regarding how and why the university administration dealt with the student encampment: https://president.uchicago.edu/from-t....
from Reason.com. Fresh survey depict worrisome results when polling American attitudes on the First Amendment.
"Americans have little tolerance for certain forms of protected speech and a lot of tolerance for unprotected conduct, when it should be the other way around," [Stevens said.] "This poll reveals that the state of free speech in America is dire."
https://reason.com/2024/08/03/more-th...
p.s. Alan, that is exciting news about the next stage of progress you've reached on your book project. Wow!
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"Americans have little tolerance for certain forms of protected speech and a lot of ..."
OK, this is a good opportunity to inject some critical thinking into the picture.
The First Amendment states: “Congress shall make no law respecting an establishment of religion [Establishment Clause] or prohibiting the free exercise thereof [Free Exercise Clause], or abridging the freedom of speech or of the press [Free Speech Clause], or the right of the people peaceably to assemble, and to petition the government for a redress of grievances [the Assembly and Petition Clauses].”
The FIRE survey (https://www.thefire.org/research-lear...), on which the Reason article is based, fails to distinguish among these separate components (each having a massive case law interpreting and applying it and an equally massive public commentary thereon) of the First Amendment in asking these simplistic questions: (1) “When it comes to whether people are able to freely express their views do you think things in America are heading in the RIGHT or WRONG direction?”; and (2) “Based on your own thoughts about the First Amendment, can you tell us what you think about the following statement: ‘The First Amendment goes too far in the rights it guarantees.’ ” The survey goes on to ask additional questions that conflate governmental and private speech and actions. Such questions commit the fallacy of ambiguity, and, accordingly, the responses are basically meaningless. (By the way, the fallacy of ambiguity often afflicts polling and survey questions on all kinds of matters and casts considerable doubt on whether such surveys are as “scientific” as they claim to be.) Moreover, I cannot find the polling methodology used by FIRE in this survey. Perhaps it is stated somewhere online, but I cannot find it quickly, and I don’t have time to research it further.
I could go on and on about the defects of the FIRE survey and the Reason article report on it, but my time is limited, and the foregoing comments will have to suffice.
Well done. I usually trust [Reason.com] based on their past record, but any website these days can err in their frenzy to attract clicks with sensational headlines. Perhaps that is what has happened here.
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Back in the 1970s and 1980s (before the WorldWideWeb), when I was a libertarian fellow traveler, I subscribed to Reason magazine, the precursor to reason.com. I was more interested in the libertarian emphasis on personal freedom than its emphasis on economic libertarianism, which appears to have become more dominant in recent decades. The 2008 economic debacle persuaded me, to the extent I was not already persuaded, that economic libertarianism was wrong, at least in the ways it had been implemented in governmental policy. Although I still agree with the libertarian view that government should stay out of our bedrooms and other personal matters (excepting, perhaps, the libertarian position opposing governmental restrictions on recreational hard drugs), I disagree with economic libertarianism, a topic I will address in my forthcoming Reason and Human Government.
When I was younger, I didn’t apply critical thinking, as much as I do now, to what I read and heard. I don’t recall exactly the specifics of what I read in Reason magazine in earlier decades. Part of the reason I did not take as much time to apply critical thinking in those decades is that I had very little time (going to law school in the evenings while working full time in a day job during much of the 1970s and working sixty or more hours a week in law practice in succeeding decades until my retirement from gainful employment in 2012). It is only after my 2012 retirement that I have sufficient time to think through such issues more carefully. This has resulted in my four postretirement books, with my final book (Reason and Human Government) still in progress.
As a result of my own preretirement experience, I am much less judgmental these days about the views of people having little leisure time during their years devoted to work and/or family. My books are designed for people to read, to the extent they have time, during their working years and for them to revisit, if they wish to do so, after their own retirements.
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See this March 31, 2025 statement by Michael I. Kotlikoff, the president of Cornell University: https://www.nytimes.com/2025/03/31/op... (gift article).
I am cross-filing this post in the “Freedom of Speech” and “Reason, Informal Logic, Evidence, and Critical Thinking” topics of this Goodreads group.
In my view, the First Amendment prohibits the government from regulating speech on a private platform, period, end of story, except there may be an exception for advocacy of violence. Government should not be in the business of figuring out what is and is not a lie (a concern of the Left) or what is or is not biased (a concern of the Right). Private media companies should have a free hand in doing this, subject, of course, to the jurisprudence of defamation, invasion of privacy, etc. I suppose that Congress can, if it wishes (and subject to presidential veto), eliminate the immunity from liability for those companies that merely provide platforms, but the result of such elimination will be goodbye to Facebook, Twitter, etc. There is no way such companies could survive such elimination of immunity: there would be a new lawsuit filed against them every minute of every day. That is no great loss, in my view; it might be conducive to a return to reason and sanity. But both Republicans and Democrats must face the consequence of such legislation: the elimination of a huge segment of current political and other discussion and argument. Trump would still not have his Twitter account, because there would no longer be Twitter.
(edited April 9, 2023)