Why is Freedom of Speech the One Right Governments Won’t Defend?

Whenever someone is censored, suspended, shadowbanned, or outright banned by a social media company for saying something they don’t like, complainants are met with the common refrain: “They’re a private company, they can do what they like”. But why is this the case? And why is it only the case when it comes to our right to freedom of speech? Private companies are not free to infringe upon our rights to life, liberty, privacy, or property. The government actively defends these rights through the law, policing, and the criminal justice system. We also have recourse to the civil courts to seek redress for infringements of our rights. However, we have no recourse when our right to free speech is infringed.

I am not suggesting that it should be a criminal offence to infringe upon free speech, but there should be recourse to civil law for such infringements, just as there is for libel and defamation. Defenders of the censorious status-quo suggest that you have a right to free speech, but you don’t have a right to a platform for your speech. You can still stand on a soapbox in a public square and share your thoughts with the world; your freedom of speech hasn’t really been infringed. Such a position is ignorant of the reality of modern public discourse.

The public square hasn’t been a forum for public discourse for over a hundred years. The letter pages of newspapers and interactive talk shows on radio and TV have lost their primacy as venues for political and social debate. For better or worse, YouTube, Facebook, and Twitter are the modern public square, the primary venue where ideas are discussed and debated. It should concern us all that private corporations have the power to decide which ideas can be discussed, which perspectives can be expressed, which perspectives can be criticized, and who is allowed to speak. Just as the government should not have that power over the public square or the papers, nor should tech giants have that power over their platforms. These websites are platforms, not publishers, therefore they are not entitled to have editorial power.

Those who complain about the censorious nature of mainstream social media platforms have been told that the internet is a big, free, and unregulated place, go make your own platform where you can make your own rules. But recent experience has shown that the tendrils of the big tech cartel stretch further than the social media platforms themselves. Parler is one social media platform that set out on its own, committing to only restrict speech that was explicitly illegal: child pornography; incitement to violence; coordinating illegal activity etc. Despite the independence of the platform, Parler could not escape the censorious power of big tech. In the wake of the January 6th Capitol Riot, Parler was accused-without evidence-of being used to organize the attack on the Capitol Building. Law enforcement later discovered that Facebook was the primary platform used to organize the attack, but before this revelation, Parler was summarily removed from Apple’s App Store and the Google Play App Store for Android. Amazon also withdrew its web hosting services, leaving Parler completely offline.

The internet is not free, app hosting and web hosting are oligopolized by a handful of powerful companies that appear to work in concert with each other when it comes to censorship. We cannot rely on independent alt-tech platforms to provide a more open space for dialogue. As the big tech oligarchy showed in its treatment of Parler, they wield an arbitrary and self-serving power. Parler was punished for something of which it was innocent, and when it was revealed that Facebook was actually the guilty party, Facebook received no punishment at all. Parler has since returned with a new content moderation policy amenable to the demands of Apple and Google, yet it has not been readmitted to either app store. This would suggest that Parler’s deplatforming had more to do with eliminating competition than anything else.

So, should we allow big tech to wield this arbitrary and self-serving power to suppress our freedom of speech? Should we allow them to use their content moderation policies as an excuse to eliminate competition and maintain their oligopoly? Or should our governments intervene to defend our right to free speech, just as they defend our rights to property, liberty, and life? Big tech is powerful, but it has shown it is not powerful enough to resist the will of governments. Worryingly, both Facebook and Twitter have censored content at the behest of the Indian government, including content that didn’t breach their own policies. In the West, where we value individual rights and freedoms, our governments should do the opposite, and force big tech to uncensor rather than censor.

Poland is the first country to take steps to provide a recourse through the law for unjust censorship by social media companies. Their proposed legislation would set up a Freedom of Expression Council to whom users can appeal censorship by social media. If the council finds that the user’s content does not breach Poland’s laws, the social media company must restore the user’s content or account, or face a fine of up to €11 million. Such a system should be set up in every country. We do not want our government to be directly regulating or controlling what can and cannot be said online, but citizens should have recourse to appeal infringements on their freedom. This is similar to the current system in relation to defamation and libel. It is not a criminal offence to publish defamatory content, and the justice system does not proactively police such content. However, citizens can take a civil case against the offender if they feel they have been defamed.

Social media is the modern public square, that is unquestionable. What free citizens must ask themselves is if they want their freedom of speech to be policed and infringed upon by a big tech oligopoly that is accountable only to itself, or if they want recourse through the law that is set down by their elected representatives who are accountable to the people.

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