Bad Speech? More Speech!
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Facebook's refusal to take down Trump's false ads has generated great controversy and backlash. Its own employees have just published an open letter urging Mark Zuckerberg to reconsider his policy towards political ads. While thinking about this question, I recalled vaguely some slogan that went like "the solution to bad speech is more speech." Looking it up on the internet sent me on a crash course on U.S. law on free speech.
The debate on free speech and its limits is of long standing, but the course of the development of U.S. law has clearly been towards the expansion of free speech against arbitrary limits. In the 19th century, the common practice was called prior restraint, defined as censorship imposed by a government or institution that prohibits particular instances of expression. To give an example from a different jurisdiction, the Singapore government's ban of Tan Pin Pin's documentary To Singapore with Love from public viewing is an instance of prior restraint. At the time of the adoption of the U.S. constitution, press freedom was defined as the right to be free from prior restraints.
In 1907, the Supreme Court restricted press freedom by establishing the bad tendency principle. The test permits state restriction if the speech has the sole tendency to incite or cause illegal activity. In Patterson v. Colorado, the Supreme Court used the bad tendency test to uphold contempt charges against a newspaper publisher who accused Colorado judges of acting on behalf of local utility companies.
12 years and a world war later, an important legal innovation took place in 1919. Athough Justice Oliver Wendell Holmes Jr. concurred with the judgment to uphold the conviction of an antiwar activist who was advocating draft resistance, he introduced the now-famous "clear and present danger" test. In his own words on Schenck v. United States:
"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right."
An implication of his statement is that in peacetime much more is permissible. Clear and present danger became the public slogan for the First Amendment rights to free speech, expression, and assembly. Then in 1927, in Whitney v. California, Justice Louis D. Brandeis moved beyond the standard of clear and present danger by writing what many legal scholars regard as the greatest defense of free speech ever penned by a member of high court. Instead of arguing like Holmes that unpopular opinions should have their day in "the marketplace of ideas," Brandeis held that citizens have an obligation to take part in the governing process and that they cannot do so if they cannot discuss and criticize governmental policy freely. Free speech is not just an abstract virtue, but the vital heart of democracy.
As such, Brandeis insists on a "time to answer" test: no danger flowing from speech can be considered "clear and present" if there is full opportunity for discussion. As he wrote, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence." That is, the answer to bad speech is more speech.
In 1969, the Supreme Court would further expand free speech by adopting the "imminent lawless action" test in Brandenburg v. Ohio. According to the Court, the state cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The "imminent lawless action" test has since remained the standard used for evaluating attempts to punish inflammatory speech.
Trump's claim in his Facebook ad that "Joe Biden promised Ukraine $1 billion dollars if they fired the prosecutor investigating his son's company" has been debunked by non-partisan independent fact-checkers. It is a false claim. However, not only is it not directed to inciting or producing imminent lawless action, there is certainly time, and place, to answer that claim since the presidential election is still 12 months away. Here, the objection will be raised that such a false claim will have the time to impress itself on gullible or pro-Trump voters as the truth. The objection is usually reinforced by some reference to the fearsome power of on-line dissemination.
This result, to my mind, cannot be helped, but the blame cannot be placed on Facebook, at least not solely. For the so-called gullible voters, usually a condescending accusation from a partisan, the problem lies in the state of public education in the USA. Recall that Justice Brandeis himself called attention to the necessity of education for a functioning democracy. As for the pro-Trump supporters, the question for the anti-Trump voters is how did we end up with this deep mistrust in mainstream media. I think we exaggerate the power of technology in creating this partisan divide. It certainly does not help to close the divide or to rebuild trust in mainstream media, if we insist that Facebook censors Trump. Such censorship will only convince pro-Trump supporters, if they need convincing, that the mainstream media is biased against them. Twitter's decision to ban all political ads, announced yesterday, immediately attracted criticism from the right that the decision was intended to silence conservatives.
This is not to say that Facebook should not warn users that claims by political ads have been found to be false by fact-checkers. Political ads on Facebook are already clearly marked as such, and it takes very little to add a link to a relevant fact-checking website. Better a political message clearly marked as an ad and contextualized by outside reference than one that disguises its origin and intent. I am not a 100% fan of Facebook. I also think Elizabeth Warren is right in wanting to dismantle the growing media monopolies that are Facebook and Google.
In a statement to The Associated Press, Facebook wrote, "In a democracy, people should decide what is credible, not tech companies." 92 years ago, Justice Brandeis put it far more eloquently and essentially:
"Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. "
Jee Leong Koh
October 31, 2019
Facebook's refusal to take down Trump's false ads has generated great controversy and backlash. Its own employees have just published an open letter urging Mark Zuckerberg to reconsider his policy towards political ads. While thinking about this question, I recalled vaguely some slogan that went like "the solution to bad speech is more speech." Looking it up on the internet sent me on a crash course on U.S. law on free speech.
The debate on free speech and its limits is of long standing, but the course of the development of U.S. law has clearly been towards the expansion of free speech against arbitrary limits. In the 19th century, the common practice was called prior restraint, defined as censorship imposed by a government or institution that prohibits particular instances of expression. To give an example from a different jurisdiction, the Singapore government's ban of Tan Pin Pin's documentary To Singapore with Love from public viewing is an instance of prior restraint. At the time of the adoption of the U.S. constitution, press freedom was defined as the right to be free from prior restraints.
In 1907, the Supreme Court restricted press freedom by establishing the bad tendency principle. The test permits state restriction if the speech has the sole tendency to incite or cause illegal activity. In Patterson v. Colorado, the Supreme Court used the bad tendency test to uphold contempt charges against a newspaper publisher who accused Colorado judges of acting on behalf of local utility companies.
12 years and a world war later, an important legal innovation took place in 1919. Athough Justice Oliver Wendell Holmes Jr. concurred with the judgment to uphold the conviction of an antiwar activist who was advocating draft resistance, he introduced the now-famous "clear and present danger" test. In his own words on Schenck v. United States:
"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right."
An implication of his statement is that in peacetime much more is permissible. Clear and present danger became the public slogan for the First Amendment rights to free speech, expression, and assembly. Then in 1927, in Whitney v. California, Justice Louis D. Brandeis moved beyond the standard of clear and present danger by writing what many legal scholars regard as the greatest defense of free speech ever penned by a member of high court. Instead of arguing like Holmes that unpopular opinions should have their day in "the marketplace of ideas," Brandeis held that citizens have an obligation to take part in the governing process and that they cannot do so if they cannot discuss and criticize governmental policy freely. Free speech is not just an abstract virtue, but the vital heart of democracy.
As such, Brandeis insists on a "time to answer" test: no danger flowing from speech can be considered "clear and present" if there is full opportunity for discussion. As he wrote, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence." That is, the answer to bad speech is more speech.
In 1969, the Supreme Court would further expand free speech by adopting the "imminent lawless action" test in Brandenburg v. Ohio. According to the Court, the state cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The "imminent lawless action" test has since remained the standard used for evaluating attempts to punish inflammatory speech.
Trump's claim in his Facebook ad that "Joe Biden promised Ukraine $1 billion dollars if they fired the prosecutor investigating his son's company" has been debunked by non-partisan independent fact-checkers. It is a false claim. However, not only is it not directed to inciting or producing imminent lawless action, there is certainly time, and place, to answer that claim since the presidential election is still 12 months away. Here, the objection will be raised that such a false claim will have the time to impress itself on gullible or pro-Trump voters as the truth. The objection is usually reinforced by some reference to the fearsome power of on-line dissemination.
This result, to my mind, cannot be helped, but the blame cannot be placed on Facebook, at least not solely. For the so-called gullible voters, usually a condescending accusation from a partisan, the problem lies in the state of public education in the USA. Recall that Justice Brandeis himself called attention to the necessity of education for a functioning democracy. As for the pro-Trump supporters, the question for the anti-Trump voters is how did we end up with this deep mistrust in mainstream media. I think we exaggerate the power of technology in creating this partisan divide. It certainly does not help to close the divide or to rebuild trust in mainstream media, if we insist that Facebook censors Trump. Such censorship will only convince pro-Trump supporters, if they need convincing, that the mainstream media is biased against them. Twitter's decision to ban all political ads, announced yesterday, immediately attracted criticism from the right that the decision was intended to silence conservatives.
This is not to say that Facebook should not warn users that claims by political ads have been found to be false by fact-checkers. Political ads on Facebook are already clearly marked as such, and it takes very little to add a link to a relevant fact-checking website. Better a political message clearly marked as an ad and contextualized by outside reference than one that disguises its origin and intent. I am not a 100% fan of Facebook. I also think Elizabeth Warren is right in wanting to dismantle the growing media monopolies that are Facebook and Google.
In a statement to The Associated Press, Facebook wrote, "In a democracy, people should decide what is credible, not tech companies." 92 years ago, Justice Brandeis put it far more eloquently and essentially:
"Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. "
Jee Leong Koh
October 31, 2019
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