Tag: free speech

Is Code Free Speech?

I recently watched a documentary on Netflix called The Secret Rules of Modern Living: Algorithms, hosted by mathematician Marcus du Sautoy, and I would recommend this user-friendly guide for anyone who, like me, has basically sucked at math their whole lives.  In one segment, du Sautoy describes how a matching algorithm pairs compatible donor sets with patients who need kidney transplants—a problem of global complexity that could never be solved without the algorithm—and one that unquestionably saves lives. Suffice to say, code is certainly running nearly every important and trivial aspect of our lives today, so the question of whether or not code itself is speech is an acutely important one.

To cut to the chase, even that introductory paragraph suggests that code is not speech because, most of the time, we refer to code’s role as a predicate—namely in context to that which code runs.  Action is generally not protected speech but is in fact the threshold moment when various forms of “expression” can become potentially tortious behaviors.  And since, most of the time, code is a set of instructions telling a machine to perform a specific set of actions, this would seem to implicate the liability of the author or user of code for the consequences of those actions.

On his blog Uncomputing, Virginia Commonwealth University professor David Golumbia tackles the question of code as speech, placing the matter appropriately at the heart of our current political paradox in which we feel simultaneously frustrated by both corporate and government enterprise, especially when a principal responsibility of the latter is to protect us from the intemperances of the former.  Broadly, the danger inherent in the proposal that code is speech is that it too easily becomes a catch-all defense for the “automated” actions of any number of corporations, thus taking the notion of corporate personhood to a level way beyond the political-finance implications of the SCOTUS decision in Citizens United.  Golumbia writes …

“The cyberlibertarian understanding of “code is speech” contributes to a profoundly conservative assault on the rights of citizens, by depriving the state of the power to regulate and legislate against the corporations that exist only at the state’s pleasure in the first place. This is why “code is speech” has been so powerfully advocated for decades among crypto-anarchists and cypherpunks. Yet at least these groups are, for the most part, explicit about their desire to shrink governmental power and expand the power of capital. Today the view that “code is speech” is far more widespread, but it is no less noxious, than the explicit crypto-anarchist doctrine.” 

Golumbia makes it clear that he recognizes that code can have speech-like qualities and that it can, and should, be considered speech by courts when appropriate.  But he argues that the general proposition that code is fundamentally speech is “more wrong than right,” because code is more action than expression.  Where this question might get tricky for many people is with a case like Apple v FBI, in which a lot of the reportage (and Apple’s own PR) portrayed the story as one in which the corporation is protecting user privacy from government overreach.  Certainly, the privacy issue is part of the story; but as Golumbia points out, Apple presented a code-is-free-speech argument in its motion to vacate a court order this past Februrary. He explains why Apple’s position in this case was on shaky legal ground and further proposes why Apple’s argument is not only weak, but also particularly toxic to civil liberties.

Golumbia refutes Apple’s position in four parts, arguing that 1) The “code is speech” premise is not settled law as Apple asserted; 2) that even if code were speech as a settled matter, it is not true that the government can never pass laws restricting certain types of speech; 3) that code’s primary purpose is action while the First Amendment protects expression; and 4) Apple’s argument in this case is “enirely novel” with regard to its rejecting the right of the government to “compell speech” by way of ordering the company to write a code to provide access Sayed Farook’s iPhone. This last point is the part that can get clouded for some by the underlying privacy issue; but Golumbia is right, I believe, to sharply criticize the First Amendment defense posed by Apple.

Americans, especially those dismayed by Citizens United, will want to seriously consider what Golumbia is saying in this case.  Apple’s “compelled speech” defense asserts that the corporation not only has exactly the same free speech rights as the individual citizen; but in a code-driven world, the corporation may be shielded against any liability stemming from any number of actions. As Golumbia makes clear, the government historically compels corporations to “speak” all the time and also restricts corporate speech in a variety of ways that serve the public interest. A citizen is free to tell his friends on Facebook, “This soda cured my cold,” if he really wants to; but if Coke makes the same claim, they’re pretty screwed. And for good reason.

Of course, Apple’s argument remains hypothetical since the FBI did its own cracking, and the dispute between the computer-maker and the agency will no longer proceed through the courts.  But Golumbia is absolutely right when he writes, “The effect of embracing ‘code is speech’ is to say that governments cannot regulate what corporations do. That might seem like hyperbole, but it is 100% on board with the Silicon Valley view of the world, the overt anarcho-capitalism that many of its leaders embrace, and the covert cyberlibertarianism that so many more accept without fully understanding its consequences.”

With each step into the 21st century, more aspects of our lives become unavoidably dependent upon, or associated with, some form of code.  This underlying reality is the reason we should be critical of the view that organizations like the EFF promote when they perceive a million daily micro-aggressions against “speech” in cyberspace.  The idea that every transaction online is inherently speech—because code itself is speech—is most galling when it pretends to be a defense of individual civil liberties.  Because in practice, it is an argument that—to paraphrase Jaron Lanier—cannot help but cede political and economic power to the companies with the biggest computers.  As this would completely subvert the reason why freedom of speech is articulated in the First Amendment to begin with, it is a legal question of considerable magnitude.

ADDENDUM:  It is also worth noting that there is an extent to which words like code and algorithm become a means of separating the functions of computers from the decisions of human beings.  This rhetoric is often invoked when, for instance, OSPs seek to avoid responsibility for various actions resulting from their technologies.  Of course, if code is not an expression of human choice, then it is certainly not speech; but because it is an expression of human choice that usually has consequences in the physical world, then it is speech that implicates reasonable limits. (Thanks to a colleague for raising this point.)

Free Speech III – Are Today’s Liberals Killing It?

Because there are laws against certain expressions of neo-Nazism in Germany, and because my history-buff son and I are slightly amused by the satire inherent in that otherwise understandable fact, we will jokingly conjure the image of some official kicking a would-be fascist and screaming, “You vill be tolerant!”  But if you really like your irony served thick and over-salted, consider the likelihood that if I made that same joke on an American college campus today, not only might it be utterly misunderstood, but it might get me into actual trouble — especially with anyone unfamiliar with the satire of Mel Brooks.  In fact, in a recent reply to my last post about free speech, the respondent suggested that I have made comments on this blog that would get me fired from American colleges today; and he or she is probably right. Because if this article by Kristen Powers for The Daily Beast is an accurate portrayal of today’s “liberal” college students, they really don’t get free speech at all.

In the context of this blog, I keep insisting that the Internet is not the greatest tool for free speech ever invented. But I should clarify.  The more accurate thing to say is that it doesn’t actually matter if the Internet is the greatest tool for free speech ever invented, if in fact a whole generation of American university students don’t understand free speech in the first place — why we have it, and the often painful experiences through which it has been preserved. “… the politically correct university is a world of land mines, where faculty and students have no idea what innocuous comment might be seen as an offense,” writes Powers.  She also cites an article from Atlantic in which attorney and free speech advocate Wendy Kaminer states, “The belief that free speech rights don’t include the right to speak offensively is now firmly entrenched on campuses and enforced by repressive speech or harassment codes. “

I don’t know if Powers is cherry-picking exceptions and making them sound like rules. She may be pointing to a phenomenon rather than a trend. The article references her book The Silencing:  How the Left is Killing Free Speech, and she identifies as a liberal, so I assume this is not just some Bill O’Reilly-style attack on liberals in general. Additionally, what she says does jibe with anecdotal evidence I hear through acquaintances and that I have read in some online commentary by contemporary college students. And if this is truly what is happening to the liberal tradition of socratic disciplines in higher education, then it is impossible not to sneer every time the heralds of Silicon Valley declare that freedom of speech is the motive behind whatever policy they seek to enact or destroy. I don’t want to suggest that these voices don’t ever mean what they say, or at least think they mean it, but rather how empty their gestures are in contrast to the censoring trends that their wonderful tools of speech have helped create.  After all, Powers’s description of the self-righteous mob shutting down ideas based solely on some hair-trigger offense at the speaker’s choice of words sounds a hell of a lot like life imitating social media to me.

So, let Google & Co. abuse the concept of “chilling” free speech by chucking every artist’s takedown request into the “Chilling Effects” database and tell the kids they’re standing up for the First Amendment.  Whatever.  If Powers’s article is a fair reflection, the kids don’t understand free speech anyway. It’s a lost cause. The irony, of course, is that what preserves both the right of speech and the intellectual rigor to use speech is the conscious choice to be Jacob and wrestle with the damned Angel, to welcome the confrontation and turn it into something new rather than to silence it or pretend it isn’t there. And isn’t it funny that this is exactly what artists do?  We’re just barely victorious over conservatives banning creative works or investigating artists for “obscenity” or some other offense to our half-Puritan nature. Are self-proclaimed liberals now going to write their own black lists and host their own Bradburyian bonfires?

Maybe not.  But Powers does quote comedian Chris Rock who says that playing colleges isn’t fun anymore because people are so easily offended.  And this is truly a sign of the intellectual apocalypse:  when we no longer have the mental fortitude or cultural literacy to be able to laugh at our own folly, to satirize our worst selves, we breed fanatics who would smother genius in a ball of coexist bumper stickers.  I have no idea what the ultimate solutions are to the new rise in racial tensions in this country, but understanding why Chris Rock is funny would probably be a step in the right direction.  It’s sad to think about the fact that Lenny Bruce was arrested for obscenity in the 1960s, that Richard Pryor had racially mixed audiences pissing their pants together by the 1970s, but that a legacy of those two comedians can’t get a smile out of college kids in 2015. I’m not sure that’s progress toward any kind tolerance at all.

Is Speech Preserved by More Speech Alone?  Part II

Cat Sanding

Many years ago, I volunteered a few hours after work to help the wood shop teacher at my son’s school.  The children had carved various hardwood animals that all needed edges honed with a belt sander the kids were too young to use.  I was just supposed to smooth out the marks left by the gouges and create clean lines, but in a few instances, particularly with the smaller figures, I became a bit zealous and over-sanded some of the forms into rather vague, wooden blobs.  One moment the object in my hand was very clearly a cat, and the next moment, it was more like a Brancusi abstract.  At that time in my life, I was writing a new series of magazine articles and had shared a few drafts with my best friend, who referred to my ardent cat sanding as an apt metaphor for what I had done to one particular revision.  I had over-thought and over-edited the edges clean off the original, resulting in a less interesting experience for the reader. Fortunately, one can un-edit written work in a way that one cannot un-sand a wooden cat.

One of the essential, if not most essential, social habits required to preserve the right of free speech, at least as it is presently applied in the U.S., is a universal tolerance of all the uncomfortable, imperfect, even offensive edges that speech can produce. Not only does the right of speech depend on a culture that upholds this principle, but so does diversity of speech from a creative or intellectual perspective. And if we agree that this condition is ideal, then any form of collective intolerance of those edges will presumably have the opposite effect. For instance, we see some evidence of intellectual cat sanding in contemporary academia with efforts to improve upon tradition by, say, de-racializing the works of Mark Twain or demanding that college faculty provide some form of warning label prior to covering material that might “trigger” unpleasant emotions or thoughts among students.

In Part I of this topic, I used the term orthodoxy of tolerance, and it is these phenomena I had in mind. Because when this kind of intellectual cat sanding becomes collective, ideological, and militant enough, it produces a new orthodoxy that oddly enough claims tolerance as its foundation. In turn, this orthodoxy then demands policy that trims the barbs and smoothes the jagged edges from various forms of expression, and apparently this has happened in some institutions. Meanwhile, it is fascinating that these mewling sensitivities in academia have manifest coincident with evidence of “free speech fanaticism,” to quote Doonesbury cartoonist Gary Trudeau from his article The Abuse of Satire for The Atlantic.  In this Op-Ed largely focusing on Charlie Hebdo, Trudeau offers his own perspective on the difference between satire and rank provocativeness; and he criticizes the speech absolutist who is blind to such distinctions. “Indeed, one of the nicer things about youthful cluelessness is that it’s so frequently confused with courage,” writes Trudeau.

That’s an interesting way to put it. And for the sake of conversation, we could say we’re seeing the rise of the speech Wimps concurrent with the rise of the speech Bullies, neither of which has anything to do with speech courage.  The Wimps don’t want any unpleasantness, regardless of context, while the Bullies are such zealots about speech, that they act as though unpleasantness is the only thing keeping speech alive. “At some point free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism,” Trudeau writes, summing up, for me anyway, both the Wimp and the Bully in one sentence.

But does any of this answer even part of the thesis question, which is whether or not speech itself is best preserved by more speech alone?  When I began these essays, the hypothesis was that the mechanisms that either preserve or threaten free speech function entirely independent of the Internet as a mechanism for more speech. For instance, if a young person is never taught to think about the emotional paradox of embracing uncomfortable speech, it won’t necessarily matter if he and 100 million of his friends all have networked devices or, for that matter, never have them. But it is admittedly difficult to stick to that inquiry alone without considering the effect of the network itself. For instance, if the aforementioned Wimp perspective and Bully perspective become dominant points of view, and social media then provides the platform for each to attain mass and advance an orthodoxy, what happens to tolerance of all the great forms of expression that exist between a sanitized Huckleberry Finn and the mean-spiritedness of bad satire that “punches down?”

Do we fail to produce the next Doonesbury because it’s too edgy for the Wimps and too tame for the Bullies?  Not necessarily.  But I find these cultural shifts interesting because I suspect the increase in the raw tonnage of speech via social media has had something to do with fostering these views, which do not inherently promote a greater diversity of speech. As suggested in Part I, it is probably more valuable to pay attention to how speech might be changing in the digital age than it is to simply buy the premise that speech is “freer than ever” thanks to networked devices.