Tag: free speech

On the Post Hoc Deplatforming of Trump

I guess this is the digital-age equivalent of defenestration:  rather than an authoritarian getting thrown out a window, he gets thrown off Twitter. And now that the major platforms have closed the proverbial barn door while the cows run amok on Pennsylvania Avenue, calling the decision to deplatform Trump too little too late is itself saying far too little, and way too late.

On December 31, 2016, I published a post asking whether Americans might begin to doubt the extravagant premise that the internet as we know it is a gift to democracy. To an extent, the answer to that question was yes. Over the past four years, we did see at least a new willingness to criticize Silicon Valley; and at the same time, that industry’s ability to thwart every policy initiative with the over-broad message that “the internet would break” proved as futile as it is fallacious. 

That it took a violent, seditious* assault on the Capitol to slap at least some of Trump’s enablers into reality is dismaying to say the least, and many of those enablers should not—and very possibly will not—be forgiven. But we should also not be quick to absolve the corporate enablers at Twitter, Facebook, et al, or their well-financed network of shills who so earnestly promoted the notions that all content online is tantamount to protected speech, that the free exchange of all views is inherently a net positive, and that the good will outweigh the bad as long as we remove all barriers to informative and cultural material.

Long before Trump announced his candidacy, the political landscape had been well-softened by the illusion that social platforms provide better transparency, and Trump’s incipient cult was not unique in believing that “new media” were providing access to a truth that the gatekeepers of the “old media” were hiding. At the same time, social platforms are uniquely designed to feed that egotist in us that craves the dopamine hit generally referred to as confirmation bias.  

The tech-utopians truly believed (and apparently still do) that a more enlightened, more civilized world is the inexorable outcome of more access to more information. When some of us countered that internet platforms seem to be highly effective at spreading disinformation and other toxic content, we were called luddites who hate progress and technology. We were told that we wanted to stop a new enlightenment in which “the whole store of human knowledge would be at everyone’s fingertips.”

It should not have been so easy for a president, or any individual, to insinuate that the entire intel community is a corrupt “deep state” or that election officials are liars or that over 60 courts, including the Supreme Court, willfully ignored fraud in the 2020 election. Those conclusions insist that not one of the tens of thousands of oath-taking public servants implicated can be trusted over the word of one man or the conspiratorial ravings of some profiteering opportunists on the internet.

We must acknowledge that Facebook, Twitter, Google, Amazon, Reddit et al have been the category killers in the business of that profiteering opportunism. If one feels suddenly inclined to straighten out a Trump defender on the First Amendment, remember that it was these corporations, with the assistance of the EFF, Techdirt, Public Knowledge, the ACLU and others, all asserting for many years that almost everything posted online should be treated with the deference of protected speech. Whether militance on this matter is ideological or simple greed, it is a premise that must be rejected as false for our own good. David Golumbia, associate professor of digital studies, wrote recently for the Boston Globe:

As a small group of scholars and activists are arguing with increasing force,…it is manifestly possible to protect free speech — and thus enhance the political and democratic values free speech is meant to promote — while suppressing, or at least not actively encouraging, the efforts of those who want to turn democracies against themselves.

And if we grasp that protections on speech really exist to enhance democratic participation, then it’s easier to see through the claims that digital products such as Bitcoin or Apple’s computer code count as speech. In other words, we’d see that a lot of cries for “freedom of speech” in the Internet era are really just demands for freedom from regulations that wouldn’t be challenged in the offline world.

So, by all means, Senators Hawley and Cruz, and any elected official who lent credence to the stolen election story, should be held accountable for feeding a fire that exploded on January 6,and is probably not done exploding. But Big Tech executives and the “digital rights” groups have much to answer for as well. To a very great extent, Donald Trump merely exploited the systemic and psychological vulnerabilities that the major platforms had been exacerbating and monetizing for years.

The leaders of the internet industry have consistently spoken to the public in the ebullient language of new horizons, where fresh ideas and opportunities converge. But that was only part of the picture. While raking in billions, these companies willfully ignored or scornfully dismissed the fact that their systems and business models made few distinctions among information, misinformation, and disinformation. Instead, they papered over those dichotomies by citing the First Amendment to which they owed no duty whatsoever. So, yes, Trump and his supporters are dead wrong to call the sudden deplatforming an infringement of the speech right, but it was the internet companies themselves who fed them that lie in the first place.

*CORRECTION: This was originally published as “treasonous,” which is the wrong word.

The Mask of Zuckerberg’s Zeal

Right after Mark Zuckerberg delivered his 40-minute address at Georgetown University on October 17, articulating his views on the speech right and the role of Facebook, several very good editorials appeared almost immediately. Most recognized the speech for what it was—PR for a corporation by a CEO who has no particular reason to be expounding on constitutional rights or history.  

Julia Carrie Wong, writing for The Guardian, rejected Zuckerberg’s arrogant presumption that he and his company “gave people voices,” … 

“Human beings have voices whether or not they are on Facebook. What Facebook has done for its 2.4bn users is not to give them a voice, but to give them access to an audience – and to manipulate and shape what this audience looks like through obscure algorithms that are tuned to maximize behaviors of Facebook’s choosing.”

Andrew Marantz, in The New Yorker, called out Zuckerberg’s lies of omission, taking credit for the benefits of Facebook while offering neither contrition for, nor even acknowledgement of, his platform’s uniquely catalytic role in causing political havoc on a global scale …

 “Now that the list of countries suffering under proto-autocratic leadership has grown to include India, the Philippines, Brazil, and the United States—and given that this is no random quirk of history but one attributable, in large part, to Facebook itself—it’s long past time for Zuckerberg to come up with a new ideology, or at least a new branding strategy.”

And after Facebook announced that it would knowingly host political ads that were patently spreading false information, Aaron Sorkin, screenwriter of The Social Network, penned a popular response to Zuckerberg explaining why Facebook’s policies have nothing to do with speech …

“…right now, on your website, is an ad claiming that Joe Biden gave the Ukrainian attorney general a billion dollars not to investigate his son. Every square inch of that is a lie and it’s under your logo. That’s not defending free speech, Mark, that’s assaulting truth.”

While it is certainly good to see that fewer people are willing to buy Zuckerberg’s bullshit, let alone his credentials for holding forth on political philosophy, his attempt to reboot the premise that created his (and our) problems in the first place seems to be more or less where the internet industry has landed over the last year or so.  After a brief period of navel-gazing and half-hearted promises to “do better” in 2016, Silicon Valley’s wizards seem to have come to the conclusion that they were right all along—a theme that could easily be the subtitle of Zuckerberg’s Georgetown speech. 

 “Throughout history,” he says, “we have seen that more people being able to share more experiences and more perspectives has always been necessary to build a more inclusive society.” This is not exactly true as a historic statement, and it has certainly not proven to be an axiom that can applied to the effects of social media.  Most importantly, what Zuckerberg is really doing there is reprising a theme that social media platforms sit on timeline that traces a smooth arc from the Gutenberg press to Facebook. 

File that under the general talking point that everything internet companies do is inherently progress by virtue of novelty alone; but more acutely, Zuckerberg misrepresents the tire-squealing hard turn into uncharted territory that social media really was.  Remember that Facebook’s mantra was “Move fast and break things.”  Well, they did.  Unfortunately, those things include the foundations of democracy, and it is in no way clear that those things can be repaired.  

That old cliché that says you are entitled to your own opinion but not to your own facts could not withstand the gale forces of the digital age.  It turns out you are entitled you your own facts, and Silicon Valley is only too happy to commoditize that dystopian disaster and call it “free speech.”  In Federalist 1, Hamilton warned the prospective new Americans against populists, writing …

 “…a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government.  History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.” 

But is there any way to eject from the paradox?  I suppose we could abandon the platforms, but only if we do so in at least millions if not tens of millions.  Otherwise, Zuckerberg can make all the dumb speeches he wants, mangle history almost as badly as Donald Trump, Jr., and adopt a company policy that openly monetizes disinformation.  Because where are we going to criticize him for his conduct?  Exactly. 

Zuck’s recycled promise that social media can only be a fillip to democracy is the trickle-down economics of the digital age.  It is Silicon Valley’s version of the worn-out theme that corporate giants are primarily in the business of investing in a new and improved world—for our sake.  

Except the techbros are not speaking in the familiar, aspirational hyperbole of advertising; their patter is a sincere and insane presumption that were right to reprogram the liberal world order.  Techno-utopianism is not an expression.  They are not kidding.  And what Zuckerberg’s Georgetown speech says most of all is that he and his buds were right all along—that it’s our fault for losing faith.  He concludes …

“I believe that more people’s voices will eventually help us work through these issues together and write a new chapter in our history — where from all of our individual voices and perspectives, we can bring the world closer together.”

Absolutely, Zuck.  More of the same will definitely make things better.  

Photo by mshmeljov

Copyright and the Speech Right: Are They in Conflict?

It remains a popular talking point among copyright skeptics to say that copyright limits free speech.  When this refrain was played a little over a week ago on Twitter by ReCreate’s Joshua Lamel, I responded that those who keep saying it are “hair-splitting to the point of pedantry.”  Lamel replied with the assertion that everyone agrees with this trope—all copyright scholars across the spectrum of views, the ACLU, and the American Framers.  Responding to that allegation in order, there are definitely copyright scholars (I know some personally) who do not subscribe to the copyright-limits-speech premise; it is not worth anyone’s time to excavate what the ACLU allegedly thinks about this topic; and the Framers said nothing of the kind.

In fact, the Constitution’s authors leave behind a record so thin on the subject of intellectual property that one can hardly support any generalization beyond the clear, if broad, intent of the “IP clause” in Article I.  More specifically, it is absurd to engage in a 21st century debate about the relationship between copyright and the speech right by alluding to what the Framers allegedly thought during the Constitutional Convention—five years before the Bill of Rights was even ratified.  

What the Framers mostly thought during those tense, sweaty days in Philadelphia was “Holy shit, I hope this works,” meaning the Republic itself.  That many of those men also dreamed that the new nation might one day produce great authors and inventors is evident in the record, but the contours of copyright law, especially as we know them today, would only come to exist in a future the Founding Fathers could not possibly imagine.  This does not overlook the fact that the speech and press rights in particular were ratified with a clear understanding that our fragile democracy requires a literate, informed, and engaged electorate; and this fundamental principle certainly implicates a need to access works of authorship. 

But if we are going to talk about copyright and free speech, it is only sensible to have that discussion in context to the current law (the 1976 Copyright Act) and to contemporary speech rights doctrine, which is far more liberal than the Framers could have foreseen—or many would have thought prudent.  It took lot of time and struggle, well into the 20thcentury, for the rights enumerated in the First Amendment to apply to all Americans; and it is worth noting that, for instance, long before a woman could avail herself of those rights as a full citizen, she could own copyrights in works of authorship.  So, perhaps copyright and speech are more historically intertwined than the critics like to portray.  

The copyright-limits-speech theme persists because we generally agree that any limit on speech is bad, and thanks largely to the existence of internet platforms, many people subscribe to a very expansive definition of speech.  It is only in the last two years that many have begun to see the folly in defining all online conduct as a form of speech, let alone protected speech.  And while that is a very big topic on its own, it is necessary to consider, whenever someone identifies a limit on speech, exactly how expansively he or she defines speech.  With that in mind, what does copyright actually protect?

The copyright act vests three general types of rights in the author:  the right to make copies of a work; the right to make derivative works based on an original work; and four different means by which works can be made available to the public. 

§106(1) – The Reproduction Right

The right to copy, known generally as the “reproduction” right, is the oldest protection under copyright; and in order to argue that restricting verbatim copying of a whole work is a limit on free speech, one must embrace a concept of speech so broad that it encompasses plagiarism or outright piracy.  In what example could such conduct be considered speech, let alone protected or meaningful speech?  If I were to type out the entirety of Toni Morrison’s The Bluest Eye and put my name on it, you can bet that “copyright infringer” would be the least of the pejoratives I would justifiably be called.  

Long before the existence of modern copyright law, we have a cultural tradition of recognizing an ethical code which demands that a speaker either present some measure of originality in his speech; or that he make a limited use, with attribution, of the works of a prior speaker.  If breaking this rule can get a student kicked out of college without abridging speech rights, how does granting authors the right of “reproduction” chill those rights?  In this context, copying is cheating, and cheating is not speech.

Alternatively, if I were to print 10,000 bootleg copies of Morrison’s novel and sell them out of my car, this could only be an exercise in speech if the State were to ban the book and systematically destroy other copies?  There are those who say that unlicensed copying (piracy) expands access to works, and that this is a form of expanding the purpose of speech.  But in addition to the fact that the speech right does not extend to a right of free access to all content, this circular reasoning also presumes the existence of works without vesting copyright in authors in the first place.  

§106(2) – The Derivative Works Right

It does seem, at least anecdotally, that many examples cited by those who believe that copyright limits speech tend to implicate the derivative works right.  I suppose one is free to opine that the author should not be granted the exclusive right to license spin-offs, sequels, translations, merchandise, etc., but I doubt this view would be popular as a matter of fairness, and guarantee it would vary dramatically according to circumstance.  Suppose, for instance, that White Supremacist Dude tried to publish a sequel to the aforementioned The Bluest Eye … 

Many reasonable people would be quite justifiably outraged if a court held that WSD’s speech right to publish a story about the great-granddaughter of Cholly Breedlove supersedes the right of the Morrison estate to prohibit this derivative work.  Yes, I am being provocative on purpose by including the element of race, but only to emphasize the original point that to call this prohibition a limit on White Dude’s speech right would almost certainly be an exercise in pedantry.  

Yes, as a quibbling matter, some amount of WSD’s speech would be proscribed; but what would in fact be limited by copyright would be his ability to both capitalize upon, and revise, the speech of Toni Morrison.  To come to the opposite conclusion would potentially amount to coerced speech if Morrison’s estate were forced to tolerate a use of her inventions in a form anathema to their meaning or purpose.  And copyright still cannot stop WSD from his right to evangelize racism by way of criticizing Morrison’s literature, if he were so inclined.

But what about thoughtful, respectful, or meaningful derivatives that may not be licensed?  In fact, there was a real litigation involving a kind of reverse example of the one I just invented.  When the case settled in 2002, Alice Randall’s novel Wind Done Gone was advancing a pretty solid claim as a parodic fair use—rather than an infringing derivative work—of Gone With the Wind.  In Randall’s favor was the fact that she commented upon Mitchell’s too-idyllic portrayal of slavery in her famous, mythmaking story.  So, limits like fair use, which are baked into the copyright law, do promote the progress of creative expression and free speech.

In response to the generalization that copyright limits speech, I would counter that copyright law often helps to separate the meaningful speaker from the lazy, crass opportunist or plagiarist.  The important point here is that such distinctions are always nuanced and can only be considered on a case-by-case basis.  For instance, one consideration in Randall’s favor is the historic setting of Gone With the Wind and the cultural influence of that particuar book as a kind of revisionist history, despite its being a work of fiction.  All of those factors would not be present in my hypothetical derivative work of The Bluest Eye.  

§106(3)(4)(5)(6) Making Works Available

The individual statutes here relate to the mechanisms by which different types of work can be made available.  I will not enumerate all four, but for instance, a stage play can be distributed in book form (§106(3)), and it can be performed on stage or as filmed public performance (§106(4)).  This bundle of rights can be thought of as the wholesale end of copyright, protecting the author’s right to enter into agreements to make her work available through various channels.

How protecting the exclusivity of those distribution channels is a limit on speech rights is a mystery.  Few reasonable people would support the idea, for example, that if a teleplay author licenses her series exclusively to Netflix that this infringes the speech rights of other parties who might want to perform the show via their platforms or networks.  Show me an accused infringer of making available rights, and I’ll show you a vested interest looking to exploit a work without paying for it—not someone exercising the speech right.

‘twas ever thus.  In the days leading up to the 1909 Copyright Act, the newspaper publishers tried (and failed) to argue before Congress that they should not have to pay to publish photographs, despite the fact that photographic works were protected by copyright.  Users of resources, especially commercial users, would rather not pay for materials if they can avoid it.  Today, it will be some tech company vying to exploit music, video, images, books, etc. without paying license fees, often cobbling together some convoluted legal defense to bob and weave through the copyright statutes; but those particulars aside, these users are no more speakers than a guy selling a trunk load of stolen whiskey is a distiller.  

If you saw the movie Yesterday, you’ll know that the tension for the protagonist hinges on the fact that, although he can get away with performing Beatles songs as though they are his own expressions, he feels like a thief.  In other words, even if we remove the copyright component, the ethical underpinnings of its boundaries remain.  And so does the speech right.