The Public, Private, & Digital Stewards of Free Expression
Freedom of Expression through the lens of public & private opinion
The main public and private sectors that have agency in preserving freedom of expression include internet companies, governments and legislatures, civil society and third-party researchers, and the media and news industries. All of these institutions have varying forms of agency informing our public sphere. While all of these parts of our society are responsible for ensuring freedom of expression is valued, not all of these sectors are subject to First Amendment protections. The current state of freedom of expression is heavily influenced by our digital environment. This environment is in a constant state of flux due to evolving technological advancements, and the shrinking number of architects responsible for constructing and controlling the internet poses a threat to free expression. A growing number of global freedom of expression experts are conscious of these factors, and work to bring to light their implications on human rights. Among them is UN Policy Manager Peter Micek, who asserts:
“It is fundamental that governments, the private sector, and international institutions all put in place initiatives to effectively prevent the unlawful use of technology as a barrier to the exercise of our freedom of peaceful assembly.”
MIXED INTENTIONS WITHIN THE TECHNOLOGY SECTOR
The sector wielding the most leverage in managing our free speech is the tech companies pulling the strings for our public sphere. Our digital public sphere is burdened by the lack of competition in the global tech market. According to Jack M. Balkin, “the largest social media are less subject to market discipline than other firms” and “lack of competition is one important reason why social media don’t live up to their social function in the digital public sphere.” This leaves a very small number of platforms with a majority share hold over the construction and regulation of our public sphere, and therefore, the preservation of free speech as well. Prior to social media, institutions relied on free speech values in order to perform a sort of checks and balances between other institutions in order to ensure the public interest was reflected. Our public sphere is further burdened by the profit-driven motives of tech companies. The tech industry has always put capitalistic values before ethics or free-speech-related values. Balkin describes the implications of the internet’s business model on our public sphere as:
“Economic incentives are not the same thing as professional norms and they may come into conflict with and undermine professional norms. And today, economic incentives for social media companies promote distrust, not trust. They undermine professional norms for the production of knowledge rather than support them.”
Another digitally-derived issue that poses free speech concerns involves the tech industry’s lack of data transparency. The only reason companies withhold such valuable data is, once again, profit-motivated. A report about online hate speech published by the UN claims, “the lack of transparency is a major flaw in all the companies’ content moderation processes.” Moreover, “there is a significant barrier to external review (academic, legal and other) of hate speech policies as required under principle 21: while the rules are public, the details of their implementation, at the aggregate and granular levels, are nearly non-existent.” It is evident that the economic incentives of the internet account are responsible for most of the tech industry’s sector-specific drawbacks in protecting free expression. Platforms like Facebook keep their inner workings from the public to maintain their place as a dominant power in the market, or to prevent the inevitable bad PR that would stem from any research suggesting the harms of their platform on individuals or society.
LAWMAKERS AND GOVERNMENTS HAVE THEIR HANDS TIED, BUT FOR HOW LONG?
The internet is a popular venue for speech including political debates, protest organizers, and journalism. Yet this arena, for better or worse, proves difficult for governments and courts to preserve or curtail expression. In America, the First Amendment prohibits governments from passing laws that limit speech. On the global stage, Article 19 of the Universal Declaration of Human Rights establishes a similar statute:
“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.”
In situations regarding hate speech, Daphne Keller highlights the nature of this speech as “protected from government interference under the First Amendment or other human rights instruments around the world,” but up to the private platform’s “discretion to take it down.” There is a growing concern about what the future holds for internet anonymity. Trolls, bots, bad actors, and even corrupt governments weaponize anonymity in order to harass individuals, stage misinformation campaigns, and discredit journalists. But this function of the internet is not inherently bad. In fact, anonymity is employed or supported by many journalists in the task of whistleblowing. During an interview with Alberto Cerda Silva, UN special rapporteur for freedom of expression David Kaye describes this double edge sword. According to Kaye:
“Both encryption and anonymity are fundamental to creating the privacy and security necessary for free thought and expression. But too often they are described as tools used by criminals and terrorists. While bad people and actors will always make use of these tools, as with any morally neutral technology, the reality is, activists, journalists, artists, and even law enforcement officials around the world depend on encryption and sometimes anonymity to protect themselves and their important work.”
Some scholars suggest that removing the anonymous function of the internet will aid in mitigating the abundance of harmful speech, such as disinformation and hate speech. Social scientist Jonathon Haidt believes that by removing this function, we may be able to “reduce the frequency of death threats, rape threats, racist nastiness, and trolling more generally.” But global human rights advocates say that removing anonymity would not be conducive to preserving free speech. In Europe, “the European Court of Human Rights recently held that digital companies have an interest in keeping their users anonymous so as to help promote the free exchange of ideas and information as covered by Article 10 of the European Convention.” The UN hate speech report aforementioned warns against identity transparency, maintaining that such measures are a means for governments to legally limit expression. The report asserts that “States should not use Internet companies as tools to limit expression that they themselves would be precluded from limiting under international human rights law.”
