The Jan. 6 storming of the U.S. Capitol added urgency to a growing debate about the legal and cultural boundaries of free expression in America. In a country rife with concern about censorship, disinformation and hate speech, social media carry the power to both amplify and silence once-fringe ideas. The problems surrounding free speech cut multiple ways and what we decide to do about them could shape democracy for generations to come.
The other shoe dropped just days after Jan. 6, when rioters who falsely believed Donald Trump had won reelection as president violently broke into the U.S. Capitol, disrupting that day’s congressional certification of the Electoral College vote.
Five people died and scores more were injured as a result of the violence that day. In the aftermath, social media outlets such as Twitter and Facebook shut down Trump’s accounts – alleging he had incited the violence with stolen election claims. The ban extended to thousands of other accounts that promoted the QAnon conspiracy theory, which among other things, posited that Trump was leading the fight against a “deep state” cabal of powerful pedophiles.
The purge prompted Kansas Sen. Mark Steffen, a Hutchinson Republican, to introduce legislation in the Legislature that would ban social media companies from censoring political expression – authorizing penalties of up to $10,000 for each reported violation. The bill, Steffen says, was born out of a belief that social media companies are suppressing conservative voices.
“No question about it. I think we silenced a president,” Steffen says.
The power that tech companies have over public discourse, he says, requires the government to provide some guardrails.
“The scary thing is how big and how large a footprint these companies have.”
But he added: “I see this as a bipartisan bill. The gun may be pointed at conservatives now, but who’s to say it won’t be pointed at liberals? It behooves us to address the situation.”
For others, the insurrection suggested the dangers of allowing the First Amendment to be a vehicle for perpetuating falsehoods, such as the notion that the election had been stolen in the first place.
“What happened on January 6th didn’t just spring out of thin air,” says Helen Norton, a constitutional law professor at the University of Colorado. “In order to survive as democracy – and I want to make clear that our survival as a democracy is at stake here – at a minimum, we need to share a common reality based on objectively verifiable facts, even if we vigorously disagree about what to do with those facts in terms of policy choices.”
The violent nature of Jan. 6 added urgency to a growing debate about the legal and cultural boundaries of free expression in America. In a country rife with concern about disinformation and hate speech, fueled by the power of social media both to amplify and silence once-fringe ideas, and battles over what some conservatives call “cancel culture,” what happens next could shape U.S. democracy for generations.
The fight is playing out at the national level, but also on college campuses and state legislatures: The Heartland Institute, a conservative think tank, said in February that bills like Steffen’s had been introduced in more than 20 states. (In May, Florida Gov. Ron DeSantis signed a bill into law that would fine social media platforms that try to permanently ban political candidates. But legal experts suggest the law is very likely to be struck down in court challenges.)
The rising heat around the issue of free speech also has people rethinking long established positions.
“I’ve always considered myself an absolutist when it comes to free speech issues,” says Leroy Towns, a former Kansas journalist, journalism professor and onetime chief of staff to recently retired U.S. Sen. Pat Roberts. “I have to say events recently kind of give a person pause whether that’s the best course of action or not.”
Where does free speech begin and end?
In Kansas, the debate over free speech often has been centered not on Big Tech, but on allegations of hate speech, often involving social media use and tied to the state’s public universities.
Back in 2013, University of Kansas professor David Guth was suspended after tweeting criticism of the National Rifle Association following a shooting at the Washington Navy Yard.
“The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters,” Guth wrote. “Shame on you. May God damn you.’”
“This is hate speech,” an NRA spokesman responded. “It is disgusting and deplorable. It has no place in our society.”
Following the incident, the Kansas Board of Regents adopted rules to permit faculty and other employees to be fired for the improper use of social media – a category that included incitement to violence and the improper disclosure of student records, but also any post that “impairs discipline by superiors or harmony among co-workers.”
More recently, in the summer of 2020 as Black Lives Matter advocates conducted protests around the country, student athletes at Kansas State University said they would not play unless a student activist, Jaden McNeil, was expelled after his offensive tweet about George Floyd went viral. (McNeil, who was no longer enrolled at K-State as of the spring 2021 semester, later retweeted a video showing himself chanting “America First!” outside the U.S. Capitol on Jan. 6.)
The university declined to expel McNeil, saying his tweet was protected under the First Amendment. “While these messages are disrespectful and abhorrent, we cannot violate the law,” K-State President Richard Myers told the campus community.
K-State athletes returned to the playing field. But Black students expressed disappointment. “We don’t need to wait for a student of color to be either hurt or killed, or for a student to incite so much fear on campus that a race war happens, for them to do something,” Tori Swanson, a K-State student who had organized BLM protests, told The Kansas City Star.
These incidents scramble easy left-right categorizations of hate speech allegations and action against them.
“Censoriousness knows no ideological boundaries,” says Adam Steinbaugh, an official with the Foundation for Individual Rights in Education, an advocacy group that argues for free expression on college campuses. The organization weighed in on the K-State controversy in McNeil’s defense.
But in free speech battles across the country, a dividing line has often emerged between conservatives, who say they’re being stifled from espousing their beliefs on predominantly liberal campuses, and racial and ethnic minorities and members of the LGBTQ community, who say they should be protected from harmful, intimidating or hurtful speech at colleges with a history of excluding them.
The United States is unusual among advanced democracies when it comes to the concept of free speech. In Germany, Holocaust denial is outlawed, and many other countries – across Europe, in Canada and elsewhere – have restrictions on speech that denigrates ethnic, religious and sexual minorities.
“‘Extreme’ is kind of an extreme word, but it is the American system that takes an extreme view on freedom of speech and draws the line much further down to one end of the spectrum than any other system when it comes to trying to find a balance between the rights of those who might be harmed by speech and the rights of those to express themselves,” says Craig Martin, a law professor at Washburn University who has written in favor of stronger protections against hate speech.
These discussions aren’t abstract. Real human beings are involved, not just culture war props.
In 2017, Joseph Shepard, then the outgoing student body president at Wichita State University, drew public attention when he said a racial slur had been directed at him by the parents of his successor. The incident was investigated, and the Sedgwick County district attorney declined to bring charges.
Shepard, now the director of multicultural engagement and campus life at Newman University in Wichita, speaks carefully these days about the matter. “As I look back on that particular situation, I really do believe that there was a level of miscommunication at all levels,” he says. But he says that as a Black, bisexual man, “I think I’ve experienced slurs my entire life.”
He added: “It makes me feel ‘less than,’ right? I think it makes me feel not valued. But I also have to be honest with you and say that it ignites this passion in me that wants to fight to make a difference.”
Balancing free speech and diversity can be difficult. In 2017, amid a campus outcry over racial issues, KU’s University Senate formed an ad hoc committee to propose a free speech policy – one that would preserve public debate while also promoting values of racial diversity and inclusion. The effort failed. That was partly due to logistics – it was difficult to get everybody together for meetings – but also because the task was so challenging.
“The issues surrounding freedom of speech on campus are extraordinarily complex and highly contentious,” the committee noted in its final report. “From the outset, some committee members doubted the wisdom and utility of adopting a statement of principles at all. … Ultimately, developing a policy statement that can address these complex issues in a manner on which all constituencies can agree may not be possible.”
Shepard understands that complexity.
“Do I believe hate speech is OK? Absolutely not. Do I believe it should be legal? Absolutely not. Do I know that it is legal, though, and that more often than not, people get away with it? Absolutely,” he says.
But he suspects trying to outlaw hate speech might create a slippery slope – that some people, for example, might see advocacy for the Black Lives Matter movement as hate speech against police officers.
“It’s one of those issues that, it’s very complex in nature and … the only right answer is that we all should know collectively in our hearts that hate speech is wrong,” Shepard says. “But I don’t know that the answer to addressing hate speech is to get rid of freedom of speech.”
Is free speech undermining or sustaining democracy?
The First Amendment of the U.S. Constitution says, among other things, that “Congress shall make no law … abridging the freedom of speech.” Seems straightforward. The reality has always been more complicated.
Very early in American history, President John Adams signed into law the Alien and Sedition Acts, one of which criminalized making “false, scandalous, and malicious writing” critical of the federal government – a law that resulted in actual arrests of accused violators. Before the Civil War, states across the South adopted laws essentially gagging anti-slavery activists. During the war, President Abraham Lincoln briefly had two newspapers shut down after they published forged presidential proclamations announcing an expanded military draft. Later on, Socialist presidential candidate Eugene Debs was imprisoned for speeches opposing World War I. During World War II, President Franklin Roosevelt created an Office of Censorship. Such examples are plentiful.
Nadine Strossen, former president of the American Civil Liberties Union, says that battles over free speech have been constant throughout the country’s history.
“It’s incessant, no matter what the latest crisis of the day is. Speech is always scapegoated as the alleged cause, and censoring speech is always cited as a purported panacea,” she says.
If free speech battles have been an ongoing feature of American politics – particularly during wartime, when the country’s national security has been threatened – there has also been a broad sense that unfettered expression is an essential component of democracy, a belief that the “marketplace of ideas” would help Americans doing the messy business of self government arrive at necessary truths, that (as established in Supreme Court Justice Louis Brandeis’ 1927 counterspeech doctrine) the best remedy for bad speech is more speech.
“In this country, every single movement for equality, for increasing equality, starting with the abolitionists, going through the suffragists, the civil rights movement, the LGBTQ rights movement, all of these movements have been subject to censorship under whatever laws existed at the time, whether they were as hate speech laws, whether they were a breach of the peace laws, whether they were defamation laws, you name it,” Strossen says. “Especially for groups that are minorities, whether political dissidents or racial or other demographic minorities, (they) absolutely depend on robust free speech and are smothered by censorship.”
Yet some observers say it is no longer the case that more speech can defeat bad speech. The internet allows bad actors to circulate misinformation around the globe at the speed of light, augmented by “troll armies” and automated bots that amplify untruths and drown out truth. The web creates a tidal wave of lies in an era in which many Americans are already swamped with more information than they can possibly process.
“The most important change in the expressive environment can be boiled down to one idea: it is no longer speech itself that is scarce, but the attention of listeners,” Columbia University law professor Tim Wu wrote in an influential 2017 article, “Is the First Amendment Obsolete?”
The University of Colorado’s Norton echoes this perspective.
“For most of the 20th century and before, speech was relatively scarce. In other words, you had to have a printing press or access to a radio or TV station if you wanted to reach a large audience,” Norton says. “And because large-scale speech then was relatively limited, listeners’ attention was relatively abundant. Now, in contrast, 21st century technologies mean that speech is cheaper and more abundant than ever before.”
She added: “The bad news is that this cheap, abundant speech can be and is exploited by both government and by private, powerful private actors to silence and otherwise control other folks’ speech and to frustrate healthy democracy through things like the widespread and instantaneous distribution of falsehoods – through manipulative commercial interfaces, through trolling and more so. In other words, speech can obviously be used for terrific purposes, but speech can be and also is used to deceive, attack, silence and manipulate others.”
The result, she argued in a University of California Davis Law Review article co-authored with Toni Massaro of the University of Arizona, is that “left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project.”
That danger manifested itself on Jan. 6.
Does big tech have too much control?
Strossen, however, argues that such concerns arise just about anytime new technologies come along that make it easier for people to share ideas and information.
“It would have been revolutionary if the internet and then social media were not greeted with calls for censorship,” she says. “It has certainly happened to the printing press. Scholars of ancient history say it happened with papyrus. Anything that makes it easier and faster and cheaper to reach a mass audience is seen as very liberating and empowering and inspiring by some, and very threatening and dangerous by others.”
That makes sense to Towns, who remembers the early 1980s, when a western Kansas radio station, KTTL-FM, drew national attention at the dawn of modern talk radio for broadcasting racist, anti-Semitic and conspiracy-minded commentary. The Federal Communications Commission – with the support of Sen. Bob Dole – investigated the station’s license, but the controversy eventually faded when the station’s husband-and-wife owners divorced.
“The FCC fight over KTTL’s license mimics debate over free speech versus Twitter and other social media that is occurring today,” Towns wrote for the Kansas Reflector in January. He concluded: “As recent events make clear, history is prelude.”
If the internet can amplify and accelerate the spread of misinformation, tech companies proved in the aftermath of the Capitol insurrection that they have remarkable power to shut down discourse. A range of social media companies shut down Trump’s accounts. When many of Trump’s supporters fled for Parler, a right-wing alternative to Twitter, Apple kicked Parler off its app store – and Amazon Web Services said it would no longer host the website, citing calls for violence on the platform by Parler’s users. It took a month for Parler to find a new host and come back online.
One study showed that in the week after Trump was dumped from Twitter, the amount of disinformation online declined by 73%. But many observers – including, but not limited to, conservatives – were alarmed that tech companies have so much power over what and how Americans communicate their ideas to each other.
Kansas Attorney General Derek Schmidt mentioned the issue in a video announcing his candidacy for governor. “The intolerant left with its cancel culture and big tech censorship is trying to shame and silence conservative voices.” U.S. Rep. Ron Estes, a Republican who represents Kansas’ 4th District, has called on Congress to investigate the power of Big Tech.
Those companies “have free rein to do whatever they want,” says Steffen, author of the social media bill in the Kansas Senate. While he generally opposes regulating private enterprise, “I’m going to take it down to the individual rights – and I’m going to put the greater good in the hands of the individual, rather than the big company.”
Norton shares such concerns about the power of technology companies.
“What Twitter does with respect to speech is a free speech issue – not a First Amendment issue, but a free speech issue – because as a functional matter, Twitter and certain other private entities have all sorts of power over speech,” Norton says. “And we should be concerned about and attentive to the ways that private entities like Twitter and Facebook and other platforms control speech.”
But Norton also had little problem with Twitter’s decision to permanently silence Trump. Such actions should be rare, she says, but “I think it was an appropriate exercise of Twitter’s considerable power because Trump’s falsehoods and his normalization of hateful conspiracy theories without basis and facts threatened our democracy.”
Others are less sanguine.
“I think that (Facebook founder) Mark Zuckerberg and the titans of Silicon Valley are a greater danger to free speech” than government censorship, Strossen says. The federal government at least has checks and balances and is accountable to voters, she says, but Zuckerberg is accountable only to himself.
Should government change the rules of the internet?
America already limits free speech, observers say. Libel and defamation laws allow for lawsuits against speakers and publishers who stray too far from truth and fairness, and it is illegal for speakers to incite riots or utter “fighting words” that lead to violence. And many states have prohibitions on campaign activities, including passing out brochures near polling places.
Those precedents could be at the heart of future battles over expression.
“So my co-author and I feel that the primary purpose the Constitution protects speech when push comes to shove is to ensure a healthy democracy. This is why, for example, we protect political dissent while we protect criticism of government officials, because that speech is necessary to a thriving, healthy democracy,” Norton says. “We think that in many of those cases, the tiebreaker should be the choice that protects democracy, that maximizes democracy.”
Rather than completely overhaul America’s free speech traditions (an impossible task, given how entrenched those traditions are in the law and culture), Norton suggests that tweaks might be both possible and necessary – for example, permitting the government to make it illegal to lie about who is eligible to vote, where and when.
Rather than restrict speech, Towns says, the right move might be to require more accountability. Right now, tech companies are immune from lawsuits for the content that appears on their platforms – they face no liabilities, for example, for the threats of violence that popped up online after the election.
“I see no reason they shouldn’t be responsible for what they publish. I know that would put a big strain on social media, but social media is really becoming a publishing platform and they ought to be on equal footing with, say, The Kansas City Star or anybody else,” he says. “I think that would go an awfully long way to shut some of it down, because if Twitter knew that they could be held liable in a lawsuit for defamation, for whatever goes on their platform, I think they’re going to police it just like a newspaper does.”
Section 230, part of a 1996 law that shaped the 21st century internet, is being scrutinized by both liberals and conservatives wanting to rein in the power of big tech, albeit for different reasons.
Some, like Trump, saw the regulation as a shield for tech companies to side with Democrats. Other critics see it as a free pass for companies to be a conduit for hate speech and disinformation. Still others think repealing Section 230 would have sweeping ramifications for not just Facebook, Twitter and YouTube but could also diminish the viability of start-ups attempting to compete with them. Strossen thinks governments should focus instead on reining in the power tech companies have over discourse.
“I think they are analogous to public utilities and common carriers, such as the landline telephone companies a century ago that have been subject to regulation, going back to an old common law theory that if you are providing an essential function, then you may not deny it to any user,” she says. “You have to treat all users equally, fairly and reasonably. And I think that’s something that should definitely be seriously examined. It may be complicated. The devil’s in the details, but I think that basic concept is very sound.”
What is free speech really good for?
Niam Yaraghi, a fellow at the Brookings Institution’s Center for Technology Innovation, is skeptical of any talk of regulation – either of free expression or involving tech companies’ power. When Parler shut down for a month, he noted, many of its users went to another platform oriented to conservatives, Gab. Ideas and technology will both race ahead of attempts to shut them down, he says.
“It has become more and more difficult to restrict freedom of expression because communication tools have become more democratized,” he says. “So my argument here is: It really doesn’t matter what is right or what is wrong or what we want or what we do not want.”
Even if those regulations are possible, Strossen believes the messiness of democracy, including free speech, is better than the alternatives.
“A lot of people will just look at free speech in the abstract and say: Well, it’s not perfect and there’s a lot of dangerous speech and there’s a lot of harmful speech,” she says. “Who can disagree with that? But the alternative is censorship.”
Norton says getting the answers right means grappling with hard questions.
“Why does the Constitution protect speech?” she asks. “I’ve said I think the most important reason is that speech is necessary to a healthy democracy. But you can very quickly identify additional reasons as well, right? The marketplace of ideas – the more speech, the more opinion, the more ideas, maybe the more likely we will make the right decisions. Another reason we might protect speech is we might be thinking, regardless of whether it’s useful to anybody else, … it’s part of my humanity to express myself the way I want to express it.
“I agree that those are also important values underlying the First Amendment, and hard First Amendment problems are those where we have to choose what’s more important – protecting the democracy or allowing every speaker to say exactly what they want to say, regardless of its possible harms? I think those are hard choices that make me pause. I’m interested in working through them, but I don’t think that they’re easy questions at all.”
A version of this article appears in the Spring 2021 issue of The Journal, a publication of the Kansas Leadership Center. To learn more about KLC, visit http://kansasleadershipcenter.org. Order your copy of the magazine at the KLC Store or subscribe to the print edition.
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