The lack of public consensus on digital freedom of speech and big tech monopolies is a threat to U.S. democracy.
Feminists and social justice activists lament Elon Musk’s platform purchase. Right-wing pundits praise it. But the debate about the future of the platform—especially Donald Trump’s and other previously banned users’ return to Twitter—is only a symptom of a much deeper set of issues brought on by the digital age.
A lack of public consensus on digital freedom of speech, digital discrimination and big tech monopolies affects all proponents of democracy, particularly in the United States.
Our social and legal understanding of protected speech under the First Amendment has progressed more slowly than our collective technological prowess. Social media and the internet facilitate multi-faceted and complex social interactions across much of the U.S. population—unlike when we had these debates during the advent of television, which puts our society in uncharted social and legal territory, particularly for the layperson.
What constitutes protected speech when we are in a virtual space with our digital bodies? The public finds it less challenging to discern protected speech in material spaces.
Anyone who took U.S. History 101 in junior high school knows: Not all speech is protected. (I can still hear Mrs. Fields telling us that we could say to government officials that we hated their policies without legal retribution, but yelling “FIRE” in a crowded movie theatre is not protected speech.) Broader U.S. society hasn’t grappled with this sufficiently enough to set a social and legal precedent on protected speech in the digital age.
The lack of reckoning potentially promotes a dangerous mix of unprotected speech and strict censorship without this grounding.
On one extreme, we have those who believe that digital free speech is the ability to post whatever one likes without social consequence. But posts that call for violence or spread misinformation, particularly from highly influential social media accounts, can potentially manipulate multiple audiences in ways that can cause harm offline.
The right to publicly post something wildly unpopular or controversial but remain under the purview of the First Amendment, means the poster must also shoulder the responsibility of those who vocally disagree with you. Social stigma is not new.
On the other extreme, some wish to sanitize speech in digital spaces. A culture of censorship is spilling over into offline arenas.
At macro levels, we see large-scale censorship through shadow-banning, online outreach of pro-censorship organizations, the relentless fear campaigns against critical race theory, Black Lives Matter and trans rights to name a few, and McCarthy-esque era websites like Professor Watchlist, on the one hand.
There are micro-level censorship movements, too—namely the relentless contingents of social media users who engage in unabated harassment by hurling hate speech and death threats at the original poster with a dissenting idea. It is not a coincidence that in 2021, the American Library Association said there was an “unprecedented” number of book challenges.
Those given an ongoing pass on Terms of Service violations usually occupy elite circles of white men with money, power and political clout.
The uneven enforcement of individual platforms’ Terms of Service (TOS) further complicates the First Amendment debate by fostering digital discrimination, particularly against women and people of color. We can overly simplify the TOS by likening it to a restaurant’s “right to refuse service” sign. But most often, platforms sanction posts by users with less digital social influence and prestige.
Twitter Safety turned a blind eye to some of the more egregious violations of the TOS coming from Donald Trump’s Twitter account that would have resulted in a ban for others. Twitter, Facebook and Instagram provided an array of rationales for allowing him to remain, ranging from his “public interest” status to promoting free speech. Most often, those given an ongoing pass on TOS violations have an exuberant amount of digital influence and usually occupy elite circles of white men with money, power and political clout.
And it is those very individuals whose voices have the potential to inflict the most damage if they desire due to their wide-reaching influence. The rest of us must play nice or face the consequences. This form of digital discrimination marginalizes everyday voices, especially those in the minority, whether that is a minority group or opinion.
Monopolies give an exclusive group of billionaires de facto power to dictate what free speech is.
We further compound the problem with big tech monopolies. Putting aside any disdain for Trump, I am disturbed that one person ultimately decided when to de-platform him. Given the uneven enforcement of TOS, we know that digital and human moderators or ‘the board’ do not make those decisions. Instead, individuals like Mark Zuckerberg, Jack Dorsey and now Elon Musk make these calls.
Such monopolies give an exclusive group of billionaires de facto power to dictate what free speech is. As some may cheer Elon Musk for his free speech absolutism, they must recognize that anyone with enough money to equal Botswana’s GDP can buy a central vein of global social communication and impose their will upon it.
Even though Twitter is circling the drain under Musk’s clumsy leadership, the internet has become a social institution in its own right. Its enmeshment with other institutions means we must understand what constitutes free and protected speech that addresses digital and material spaces.
Because free speech issues—whether censorship, targeted hate speech or harassment—disproportionately target women and users at other intersections of difference online and elsewhere, we must proactively enter these conversations now. We must promote feminist templates of free speech/protected speech and define unprotected speech in the digital age to position ourselves as experts when government policies and court cases inevitably try to legislate these issues down the line.
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