The debate over free speech

Does social media exercise freedom or restrict it? It’s time to take The Sniff Test.

The Right to be Heard

People want to be heard, but do they have a right to be?

Tomorrow is International Women’s Day. Depending on your tribe, your social media feed will be full of vague corporate commitments or pictures of unwashed dishes. Then normal service will resume.

A good friend works in a company that is asking senior males to mute themselves for a day. They nominate a female colleague to speak for them. Should my friend feel gratitude that an important man gives her a voice for one day?

When the Founding Fathers of the United States approved the constitution, they also issued the first ten amendments, known as the Bill of Rights. The first amendment guarantees free speech. This was to enable freedom of religion, of the press and to protest. The text reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The lack of detail is deliberate. The authors knew they could not prescribe what should happen in every situation. They created Congress to pass laws on behalf of the people, the Presidency to guide them and the Supreme Court to consider the consequences. Future generations had the tools to sort out their differences.

Of the 55 delegates who crafted the Constitution, 35 were lawyers or had legal training. When they disagreed, they sought a patch of common ground and left the details to their descendants. They could hardly have done more to create billable hours for the lawyers of the future.

Social media is a newspaper

Pick up a newspaper and you are at the mercy of the editor. The Guardian tells you about climate change and inequality. The Telegraph prefers immigration and tax. Pay your money and take your choice.

What is left out matters and is at the heart of the debate over free speech.

Social media sites, such as Facebook, X and Instagram, regulate content on their platforms. They block undesirables and algorithms determine what we see. This is their right as private companies and they act like a newspaper editor.

The newspaper proprietor wants copy that is read. Popular content attracts advertising revenue and the most money is made telling people what they want to hear. This is because our brains are wired to prefer receiving the familiar and what we already believe.

But not all popular content attracts dollars. Lots of people want to read Donald Trump, but relatively few companies want their brand next to his missives. It doesn’t pay Facebook to promote Trump and so they don’t. This right is under attack.

Social media is a telephone network

The states of Florida and Texas have passed laws limiting the right to block and ban internet content. They argue that to do so limits users’ right to free speech. Everyone has the right to be heard and it’s up to you if you listen.

A comparison is drawn to a telephone company. You may use the service to call whoever you want and say anything. The other person chooses whether to listen.

This comparison is important. Calls happen over networks and the bigger the network, the greater the benefit in terms of people to call.  Exponentially so.

Number of connections per phone (Source: Binance Academy)

This makes telephone networks natural monopolies, similar to transport networks and electricity grids. The state has the right to intervene to stop the companies who run these networks from overcharging. Is Facebook a monopoly when I can use X and Discord?

But Florida and Texas aren’t seeking to control the price of Facebook ads. They want to make sure that Donald Trump may be heard. Provided you don’t break any laws, they argue your voice should be out there. Let the people not the corporate monopolies decide.

On Liberty

In the 1859 essay “On Liberty”, John Stuart Mill detailed three liberties essential to modern society. The freedom of thought and emotion, including free speech, was most important. Then came the freedoms to pursue one’s own tastes and to form groups. The influence on the First Amendment is clear.

These rights may only be removed when they cause harm to others. Mill had grave concerns about how this would be interpreted. He feared the tyranny of the majority, enforcing popular opinion.

The majority imposes its will beyond the law, dictating what is socially acceptable. We self censor to fit in. This makes an unchecked majority more dangerous than the government.

To Mill, losing a job because of what you say, means losing your liberty. The harm of not being able to earn a living is more damaging than the consequence of your words. We are losing sight of this principle.

Sticks and Stones

When I was my little, my mother used to say “sticks and stones may break my bones but words will never hurt me.” This maxim has not aged well. Mental cruelty and online bullying are a major concern in schools and especially among girls. Words matter and may do harm.

Who decides what is harmful? One person laughs off an insult, while another frets about it for days. The psychologist Virginia Satir noted in the ‘70s that half the families she worked with contained people pleasers. Such people feel guilty if others are upset and verbal abuse of anyone causes them stress.

I berate my mother for her choice of words. Her vocabulary is normal among her social group, but uncomfortable in mine. Meanwhile, my daughter questions my right to say certain things.

I argue I can say what I want in my house. But I tread more carefully if my daughter’s friends are present, to avoid embarrassing her. My mother argues she is too old to self-censor, but I am not.

We adjust our behaviour to fit our social circle. If we don’t want to fit in, then then we opt out. Age has a lot to do with what we consider acceptable and friends are typically of our generation.

Critical Race Theory

What happens in schools and universities seeps into society through successive waves of graduates. Governments pay attention to academics and often have them guide legislation. This accelerates the tendency for what happens in the public sector to spread outside of it.

People who are left wing are naturally drawn to public service jobs, while capitalists prefer to work in companies. The longer you stay in education, the more likely you are to be left wing.

Gen-Z has grown up being taught critical race theory. This is a four decades old idea that has emerged into the educational mainstream. It argues that race is a social concept and that racism is embedded in legal systems and policies. In extreme, it dismisses people’s views because of who they are, as in “You would say that because you’re white”.

Caucasian proponents of critical race theory, fall over themselves to seem aware of how unaware they are of privilege. They can’t wait to point out examples of inherent racism. There are echoes of both Marxist and Fascist regimes of the mid-twentieth century, encouraging citizens to report thought crimes.

Critical race theory is racist. Its supporters agree, arguing it’s the only way to redress centuries of bias. Two wrongs make a right.

One consequence of this, is that students accuse teachers of bias and force them out of their jobs. This dilutes the talent pool and concentrates extreme beliefs. The realisation that this is harmful will be what triggers change. I am not holding my breath.

The Cancel Culture

My generation favours individual responsibility for actions. Younger generations prefer collective enforcement. They are happier rounding up a posse to bring people in line.

As workforces change, so do office politics. The cancel culture spreads from college campuses. This is when you may shout down people whose views you oppose and have them barred from office. Or suggest they mute themselves for a day.

The idea is that offensive views are being restricted. In practice, those who shout loudest determine what may be heard. Typically these are radicals – no one shouts repeatedly for calm.

Senior people do influence younger people’s careers. Traditionally this meant the office junior fitting in, while learning the ropes. As a reward, in time they took over and shaped the company in their image.

Of course, only a few make the top and it’s those who fit in. This is a good thing. The purpose of the company is to survive from one generation to the next. Doing what works ensures this.

Today we have a generation of people used to being heard, provided they repeat what is socially acceptable. For young people this is what they were taught at school. They expect the same audience and message at work.

Anti-Social Media

The cancel culture has spread to social media. There is nothing left wing in this, as fascists have always cancelled, but it’s the left that is using the tool today. Hence right-leaning states, such as Florida and Texas, oppose the tech companies. This love of free speech is about ensuring Republican views are heard.

What the majority wants is not the point. A peaceful society requires that people be allowed to hold dissenting views, provided they cause no harm to others. But what is harm?

If I feel offended by something or someone, is that harmful? In principle yes, but in practice it’s open to abuse. I may claim anything offends me and insist that the teachers, bosses and the state deal with it.

And so to court.

Business as Usual

A law grants or takes away the right to an action. It cannot say anything about how people respond to that action. Your voice may be heard but no one need listen.

Women may be granted a voice tomorrow. Men may step aside because of social convention, but they will be back on Monday. Maybe raising awareness of an issue causes it to change, or maybe it’s the passing of the generations.

If the law does not govern reactions, can it legislate on what is offensive? There is no right to not be offended. We legislate against hate speech using the argument that it incites violence. We pass laws to prevent other laws being broken.

This means we can pass laws to prevent others not being broken. If the Supreme Court restricts social media companies’ rights to control their content, they limit the right to earn money. While this is okay for monopolies such as telephone companies, there is no precedent in advertising where there is competition.

Florida and Texas want Donald Trump’s voice to be heard. Their laws may result in a significant expansion of when the state may intervene to restrict company profits. Politicians in those states most likely don’t want this, but haven’t thought it through. That’s the job of the Supreme Court.

One option is to insist that content is published but allow it be buried. Social media users can search for Donald Trump, but struggle to find him. In an attention economy, most would be distracted by other content.

Another option is to send the cases back to the states for clarification. The issue of which internet content they cover – is email included – may delay hearings for years.

In the meantime, business continues as usual. If companies decide that male voices are more profitable, then they will be heard. Attempts to shame firms to change run aground on the right to earn a living. Money is power and power politics rules. This is why my friend does not celebrate International Women’s Day.