• July 24, 2014

The Future of Free Speech

The Future of Free Speech 1

Christophe Vorlet for The Chronicle Review

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Christophe Vorlet for The Chronicle Review

In 1930, a man named Daniel Lord wrote a Production Code for American motion pictures. He included specific prohibitions: "Dances suggesting indecent passions," he wrote, "are forbidden." But Lord's general point was to ensure that American films didn't glorify that which was morally wrong and that they always had a happy ending. Movies would be a source of uplift. "No picture shall be produced," he wrote, "that will lower the moral standards of those who see it."

Lord wasn't a government censor. Rather, he was a Roman Catholic priest dedicated to the elimination of "filth." Nonetheless, his code—with all of its ambitions of thought control—became one of the most effective regulations on speech in American history, more potent than any law or government program. Lord was successful in large part because the industry imposed his code on itself. The consolidation of the film industry in the 1930s concentrated power in a handful of studios, making them vulnerable to boycotts, ultimately leading to acts of self-censorship.

Americans, who have long mistrusted government, are acutely aware of and sensitive to public censorship—more so, perhaps, than any other nation. There is a strong First Amendment tradition in the courts. But Americans tend to be much less concerned with the danger of private censorship. That's too bad, because the greatest dangers to free speech in the future will come not from government interference but from speech monopolists. That has been true for much of the 20th century, and while it seems hard to imagine now, it could become the fate of the Internet.

Before we get to the future of the Internet, let's go back and see what made Lord's 1930 speech code so effective. Various censors—government and private—had been interested in controlling the content of film since the medium became popular in the 1900s. But the results were mixed. The film industry was disaggregated. There were hundreds of producers and thousands of independent theaters, and men like Lord realized that trying to police so many producers in so many places was futile.

All of that changed in the 1930s. By then, the major studios, which had moved from New York to Hollywood, had integrated production facilities and theater chains, and ruled the once unruly film industry. These studios were vastly more efficient, borrowing methods from Andrew Carnegie and Henry Ford. They produced longer films of better quality, like King Kong (1933) and Gone With the Wind (1939). The integration of every aspect of film production—from the theaters to the actors and directors—made possible a new era of motion pictures.

Industrial consolidation, in short, gave rise to the classic Hollywood blockbuster. But it also greatly reduced the number of people necessary to control the content of American film. That, in turn, made the industry vulnerable to directed boycotts—which it suffered, at the hands of the "Legion of Decency," a Catholic advocacy group organized to put censorial pressure on the American film industry. The boycotts succeeded, and the studios agreed that every American script would be turned over to a Catholic censor named Joseph Breen for review before production—what the law calls a "prior restraint." As Liberty magazine wrote in 1936, this arrangement left Breen with "more influence in standardizing world thinking than Mussolini, Hitler, or Stalin."

The impact of industrial consolidation on speech was not confined to the film industry. In the 1920s, American radio was extraordinarily diverse, a medium, not unlike the early Internet, where it was easy to establish a presence—and hundreds of people did. "A list of all that can be heard with a radio receiver anywhere within 300 miles of greater New York would fill a book," Radio News reported in 1922. Amateurs, churches, motorcycle clubs, and universities owned the majority of stations, and radio was how, for example, jazz music first reached white audiences.

By the 1930s, however, most of the nation's radio stations, with the help of the federal government, belonged to one of two networks: NBC or CBS. They delivered higher-quality programming, thanks in part to the advent of advertising. In fact, most radio content was actually produced not by the networks themselves but by advertising firms, who created the concept of "entertainment that sells." The notion of purely public broadcasting would not return to radio until the 1960s.

This may sound like ancient history, but it's very relevant today. We are living in an age where a decreasing number of firms serve as a kind of Master Switch over speech on the Internet—think Google, Facebook, the cable industry, and the major telephone carriers.

These firms are already under strong pressure to censor from powerful governments, religious groups, political parties, and essentially any outfit with a reason to want information suppressed. The Turkish government, for example, demands that Google take down mockery of the nation's founder, not just in Turkey, but everywhere. The Church of Scientology has never stopped demanding of anyone who will listen to remove criticism of its practices from the Internet, usually claiming copyright infringement.

On a daily basis, as we speak, Internet companies are making speech-related decisions more important than those made by any government. YouTube, for instance, has to constantly decide what to censor. Generally, it blocks copyright infringements on request and pornography without request, and it listens to some but not all of the demands of governments. Facebook, for its part, has been tested less, but it has been willing to delete user-generated content at the request of governments, like Pakistan and Bangladesh.

This is what speech management looks like in 2010. No one elected Facebook or YouTube, and neither one is beholden to the First Amendment. Nonetheless, it is their decisions that dictate, effectively, who gets heard. What's the answer? There is no easy answer. Monopolies like Google, Facebook, and Hollywood have certain advantages: That's why they tend to come into existence. That means the American public needs to be aware of the dangers that private censors can pose to free speech. The American Constitution was written to control abuses of power, but it didn't account for the heavy concentration of private power that we see today. And in the end, power is power, whether in private or public hands.

Tim Wu is a professor of law at Columbia Law School. His new book, The Master Switch: The Rise and Fall of Information Empires, was just published by Knopf.

Comments

1. trainer12 - November 15, 2010 at 12:16 pm

Censorship by Internet Service Providers or (ISP's) is already occuring. Three times this year, Comcast blocked supposedly accidentally, content from OpEdNews.com. OpEdNews.com is not a "spammer". It doesn't willfully violate copyrighted work, create viruses, wilfully spread viruses and other malware. Could it be possible that Comcast doesn't like the content and editorial bias of advocating for Net Neutrality, covering the fact that Comcast hired homeless people to fill up a meeting place to prevent the public from hearing and testifying on the Net Neutrality Act Rules and Regulation Hearing of the FCC in Philadelphia, PA and opposition to the aquisition of NBC by Comcast? If I can block or mark as safe domain names with my spam filter, Comcast can classify the domain of OpEdNews.com as a safe domain name. Blocking of OpEdNews.com is not an accident, oversight or OpEdNews.com's fault. Do our Constitutional Bill of Rights end in cyperspace for citizens and the public? Do ISP's have rights now as "persons" under the recent Supreme Court Ruling to block and censor content and take away our rights to association with whom we please?

2. woodstock - November 15, 2010 at 12:50 pm

The biggest censorship is organized and implemented by the Israel Lobby under the pretense on "ant-Semitism." This is applicable to all speech in the USA. As a consequence the American mind is becoming more and more amoral, more dull.

3. feisele - November 15, 2010 at 01:06 pm

According to the critical film "Food,Inc." the food industry has managed to silence ITS potential critics through legislation-- as other industries have and will continue to do. Hope you treat that in your new book.

4. ellenhunt - November 15, 2010 at 01:08 pm

I agree 100% with the article. I will also point out that this comes at a time when national boundaries are more permeable than ever before. In the exaggerated words of Friedman "the world is flat". While not exactly so, it is more true than at any other time in history. Prof Wu's words should fill us with alarm.

Google has bowed to pressure from China to censor search results. Amazon just bowed to pressure to remove availability of a book on pedophilia. Facebook bowed to pressure to remove a group criticizing Islam, "Everybody Draw Mohammed Day". Facebook bowed to pressure from Pakistan and removed anti-government material to get Facebook restored to Pakistan.

The problem is very serious.

5. oldcommprof - November 15, 2010 at 03:40 pm


To paraphrase A.J. Liebling: Freedom of the press has always belonged to he who owns one.

6. methodmanblunts - November 15, 2010 at 03:57 pm

The author makes a great point. Most people have a strong aversion to government censorship, but don't have equally strong reservations regarding corporate censorship. It's dangerous.

Unfortunately, a huge proportion of American's are unaware of this threat. Those who primarily get information from cable news won't hear about this. As if the corporate cable news monopoly is going to jeopardize its own power. Those who use the internet probably rely on the same corporate news outlets or their subsidiaries for "news" too.

If a select group of powerful corporations control the flow of information, they essentially shape public opinion. News doesn't reflect public sentiment anymore, it shapes/creates it. There is an inherent elitist selection bias among owners/controllers of these corporations. Naturally, they're going to keep the rest of the population in the dark, and exploit us as much as possible. Fucking bloodsuckers.

I'm sure this is coming off as a bit paranoid, but I really think people tend to underestimate how immorally and unethically people will behave given the opportunity.

7. 33kdr - November 15, 2010 at 06:10 pm

I knew someone would equate Amazon's selling of a how-to book on pedophilia as free speech. Google censoring and ISP's blocking domains are very different from someone crying fire in a crowded movie theater-- a book instructing others on how to commit a crime against an entire group who is unable to defend themselves is not free speech and Amazon has every right to not sell it on their site. That author can set up his own web site and then cry foul if no web host will allow it, but it is not "censorship" when a private company decides not to alienate law abiding citizens who shop on their site.
If Amazon is only now being considered a censor for pulling a book that incites violence on children, then where were the cries against them for not carrying pornography/erotica (which afre not the same thing but the public assumes they are) which IS protected by the First Amendment.
Be very careful what you define as censorship.

8. bobbyfisher - November 15, 2010 at 10:29 pm

This is false dichotomy pitting the right of free-enterprise and private property against free-speech. Just as no one has the right to restrict what signs you put on your establishment (unless it's obscenity), "even if" it affects your bottom line, so no has the right to tell google what to display on it's search engine. The unstated implication of Mr. Wu's article is that there should be laws, designed by careerist busybodies seeking academic or political accolades, which force private enterprises to convey undesired messages, for whatever reason, including profits. Yah, that would make our speech a lot freer!

9. freedom_of_speech - November 16, 2010 at 02:19 am

Everyone in this day and age can be an investigative journalist, with a smartphone such as one of the hundreds of Android, and a recording app such as HiFiCorder http://hificorder.com
Apps like this allow the user to instantly blog, or securely email a small compressed recording. Applications like this give power to the masses.

10. eiwyn - November 16, 2010 at 03:36 am

As a swede I am suprised at the weird american view of "freedom of speach". Americans seems to think it is something special, something only america has and no other countries.

Sweden have had this for over 800 years. We can speak or write anything about anyone, as long as we speak the truth, and can prove it is truth. It was written into law by Birger Jarl in 1250 or so. Most western european countries have or have had similar laws. This is why europeans can't realy understand why americans make such a big deal out of something we take for granted.

Also, we feel justice and fairness is more important than freedom of speach. We would definitely NOT defend someone elses freedom of speach, since that would mean using violence for nothing. Maybe that is because we are mostly freethinkers/atheists/agnostics, while violence/wars are something fundamentalist nations like america prefer. You claim freedom of speach for yourself, but you kill people with oposing views in other countries.

11. bobbyfisher - November 16, 2010 at 04:40 am

Eiwyn: You when you say, " We can speak or write anything about anyone, as long as we speak the truth, and can prove it is truth.", you show that you misunderstand what freedom of speech is. Some true things are difficult or impossible to prove to be true. If such a code were ever enforced, only physicists and mathematicians would be talking. America was founded upon the right to make one's own mistake. That has to include the right to say what others might regard as being stupid or even offensive. Of course, this right is against the Federal Government. People also have the right to make their own mistakes in communities: they have the right to restrict offensive speech locally. Europeans on the other hand hold to the principle that government should make your mistakes for you, by taking away your money and property and spending it for your betterment.

12. osholes - November 16, 2010 at 08:14 am

Hey, Bobby, glad you're back from the dead. But the Constitution protects us only from the government (technically, anyway). The government cannot abridge our right to speak foolishly. Our employers, in contrast, are not prevented from limiting our speech. As the frequent disclaimer says, I do not speak for my employer, and my employer does not speak for me.

13. firstyearttguy - November 16, 2010 at 08:21 am

Eiwyn's comments are self-contradictory. On the one hand E says that America's commitment to a fairly unrestrained 'freedom of speech' is nothing special since Sweden has the same commitment, but then on the other hand E says that Sweden views 'justice and fairness' as more important values unlike America (thus, proving that Sweden does not really have the same commitment to freedom of speech).

E also seems blissfully unaware that 'justice and fairness' are deeply debated concepts. Anyone who watches an American election can see that both parties claim a commitment to 'justice and fairness' but that they use two very different conceptions of it. In America, no judge or government gets to define 'justice and fairness' and then censor the rest of us in light of their moral views. Apparently, Sweden is not like this.

I'm also stunned by his lack of knowledge of American history. Our commitment to freedom of speech (and willingness to fight for our foundational commitments) stems mainly from Enlightenment thinkers like Benjamin Franklin, Thomas Jefferson, Thomas Paine, John Locke, etc. rather than religious fundamentalists. Even if he didn't know American history, if he had read the article closely he should have realized that religious conservatives often view freedom of speech warily.

14. swish - November 16, 2010 at 10:42 am

33kdr, have you read the book? Very few people have. I haven't. Everyone *except* the author is calling it a how-to-abuse-kids book.

And I suspect Amazon bowed to more than public pressure in this case. Based on other cases (such as the years-long prepublication period of Judith Levine's *Harmful to Minors*), I imagine there were some threats of violence on the anti-pedophilia side, too.

I believe we have laws against committing crimes in this country, not against writing about them, advocating changing the laws against them, or expressing support for people who commit (or would like to commit) them. If this is to be called illegal "incitement," we could have no right-to-die movement or legalize-marijuana (or other drugs) movement, and Sara Palin might be in jail for calling upon her anti-tax, pro-gun followers to "reload."

15. maw57 - November 16, 2010 at 01:54 pm

On this topic, I recommend Bruce Barry's *Speechless: The Erosion of Free Speech in the American Workplace* (2007), my colleague in the Owen Business School at Vanderbilt.

http://www.amazon.com/Speechless-Expression-American-Workplace-Hardcover/dp/1576753972/ref=sr_1_12?s=books&ie=UTF8&qid=1289933502&sr=1-12

16. harygarfield - November 16, 2010 at 04:10 pm

My wife and I thought this was absolutely fascinating. I had no idea that so much cesorship was being done willingly. So much for thinking we're free. http://hegrins.blogspot.com/2010/11/hidden-agenda-of-sec.html

17. zefelius - November 16, 2010 at 04:54 pm

Even to the extent that Osholes is right that there is a legal distinction between the government and businesses/employers on the issue of free speech, I don't see why it follows that this distinction should be morally or socially embraced. For example, a recent USA Today article reported that police agencies screen job applicants based on material gathered from their Facebook and Myspace accounts, as well as private text messages and email. The latter is especially worrisome in a so-called free society, but the the former is troubling as well. Some applicants have been rejected simply for posting racey pictures with scantily dressed individuals, or texting messages concerning suicide threats. Now, it seems to me that if we continue rejecting job applicants for behavior which is perfectly legal, such as drinking at a party or dressing in provocative attire, we will perpetuate a social environment which becomes increasingly rigid and repressed. If this is legal it shouldn't be, and those who defend it simply because it is legal are implicitly basing their arguments on the ad populum fallacy, i.e., on the social status quo.

18. bobbyfisher - November 16, 2010 at 09:11 pm

zefelius,
You say, "Even to the extent that Osholes is right that there is a legal distinction between the government and businesses/employers on the issue of free speech, I don't see why it follows that this distinction should be morally or socially embraced." and "...we will perpetuate a social environment which becomes increasingly rigid and repressed. "
What evidence do you have that repression is not good and letting it all hang out is good? Seems like you are merely reciting the 60s catechisms. A lot people, in particular poor Black people who are on drugs and experiencing the costs of exploding illegitimacy would be seem better off being more repressed. Rich whites would probably be less of a scourge to themselves as well, but they can often afford to do a few stupid things in life.

19. bobbyfisher - November 16, 2010 at 09:12 pm

osholes,
You missed my irony.

20. damienl - November 17, 2010 at 05:29 am

The author seems to miss the point regarding why there should be contraints on government censorship. Unlike businesses, government can use force to enforce its laws. If a particular type of speech becomes prohibited, there is no course of action but to either cease and desist or face jail time. Contrast this with "censorship" by companies. The worst case scenario is that Youtube will take down your video, which you are then free to upload to another server, including your own. There are even hosting companies dedicated to hosting content that regular providers are reluctant to host.

More fundamentally, the fact that the internet looks like a public space should not obscure its fundamental nature. Servers are owned and maintained by private entities, which pay for all related expenses. As such, it is legitimate for them to enforce policies relating to acceptable content. The analogy is clear: while you are certainly free to, for instance, voice racist opinions, I am also at liberty to ask you to leave my home if I do not want to be subjected to such appalling speech. Freedom of speech is not freedom to misuse other people's private property.

21. zefelius - November 17, 2010 at 01:02 pm

bobbyfisher,

You're right that a certain amount of repression is good in life, and perhaps even more so for some populations in comparison to others. I agree, and thus however funny your comment was about reciting 60s catechisms it doesn't exactly describe me.

In any case, if we agree that living in a free society, one which encourages free choice in relation to activities which do not directly harm or interfere with the liberties of others (in the spirit of Mill), is perferable to living in a society wherein the government determines which of those activities are best for us, then I will once again argue that if this is the case then it is no less true vis-a-vis businesses and social media. Simply because businesses have more opportunity to discriminate on the basis of these activities without legal repercussions does not mean in any way that we are the better for it. However, if you disagree that living in a democratic society which encourages the freedom to experiment in one's life is a good thing, even despite the fact that many people will makes choices which you find less than reasonable, then we have a fundamental disagreement. But if you do not disagree, then I don't see how you can shift your values or position when businesses or social media are introduced into the equation.







22. bobbyfisher - November 17, 2010 at 11:41 pm

zefelius,
I find your statements ambiguous. Here is my view.
Social repression is a part of individual liberty. To be free is to be free to associate with, do business with whomever we like including those who only those who hold our views. I will put this in unflattering terms to make my point. Americans have the fundamental right (against the Federal Government) to be stupid and offensive.

We as a people did not give the Federal Government consent to tell us what to think or who to associate with. The fact that the Government has taken on this role is an usurpation of power.

Affirmative action/anti-discrimination legislation for businesses or organizations are unconstitutional infringement of freedom of association. In fact, we have the positive right to discriminate against whomever we like as private citizens, and of the negative right to not discriminate against whomever we don't like as private citizens. The latter is more worth explaining. Businesses that are white heavy could be so because of discrimination against Blacks, or lack of discrimination against whites, or despite discrimination against whites -- as many law schools -- where non-white candidates are rare. Currently, thanks to busy body lawyers and judges and a population that doesn't understand randomness, we are in a regime that does not tolerate even non-discrimination -- white heaviness due purely to randomness!

23. unusedusername - November 19, 2010 at 02:10 pm

"That's too bad, because the greatest dangers to free speech in the future will come not from government interference but from speech monopolists."

Bull. If there is no threat of force, there is no censorship. Period.

If a library doesn't stock a book you want, or a newspaper doesn't publish your letter, or a service provider doesn't put up your website, start your own. Nobody's stopping you. To use the term "censorship" for anything except government action is a deliberate obfuscation of the word.

24. proveninternetbiz - November 19, 2010 at 02:39 pm

This is a nice post!
home based opportunity

25. zefelius - November 19, 2010 at 03:27 pm

bobbyfisher,

Our laws aren't always consistent with one another, are they? We have the right to associate with whomever we like, and to reject those we do not like, as you said; but Congress also has the power to regulate interstate commerce, which has often been construed broadly in reference to even small, local businesses.

In any case, as I stated in my first comments, I don't believe that the law, or even the Constitution, is beyond criticism. Thus I responded to Osholes that these legal distinctions between the government and business need not be construed as morally sound distinctions. In this regard, if I understand your argument correctly, I don't think your many references to our legal "rights" take into consideration my original claim, which stipulated that regardless of the law it isn't necessarily a good thing for businesses to discriminate against their employees, for example, when they do "dumb" things on their own private time.

In sum, it is my personal opinion that society would be much better off if we restricted businesses from pursuing this kind of discrimination. I haven't yet said in a detailed fashion why exactly I believe this, as it would take some time to do so (although my allusion to Mill provided a hint), but my original point above was simply that we shouldn't automatically argue that something is "good" merely because we have a legal right to do so: legal rights should not be confounded with good rules of social interaction.

Ultimately, I do not look forward to the day when I am fired for posting controversial claims online. I understand this is a risk in today's postmodern social environment, and perhaps some will argue that a business has the "right" to do this, but I am not thereby convinced that such a possibility makes for a more dynamic, experimental, thoughtful, honest society. I would much rather live in a society with a few openly declared racists and sexists than one in which they have no right to equal opportunity in the workplace. It may not be a legal right now, but that is no argument for why it shouldn't be.

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