How to Begin to Think About Freedom of Expression Issues
The problem has a few though layers to navigate through
In 399 B.C., the Greek philosopher Socrates was sentenced to kill himself by drinking poison for “corrupting the Athenian youth.”
How did Socrates corrupt the Athenian youth?
Did he lead an insurrection?
No.
He thought them how to question authority through dialectic questioning.
According to the Athenian court of the time, Socrates committed the crime of expressing his thoughts and teaching a thinking method (the famous “Socratic method”) that the ruling class of his day did not like.
Since then, freedom of expression questions never ended.
SIDEBAR: There had always been and will always be a freedom of expression. No one can police how one thinks inside one’s head.
The issue is with expressing those thoughts and sharing them with others in public.
Thus the topic is not “freedom of thought” but “freedom of expression.”
In our time the same Shakespearean dilemma “to talk or not to talk” is still the burning question.
Twitter has permanently suspended President Trump’s account as these lines are written and we are back to the old question: who should talk where and when and who should have the right to approve or deny that “facility”?
In other words, is expressing something a right or a privilege?
The First Dimension of the Issue
Even though freedom of expression is enshrined in the U.S. First Amendment, we cannot answer this question apart from the concepts of “public” and “private.”
According to Prof. Geoffrey Stone of the University of Chicago Law School, a first amendment scholar, the first amendment is guaranteed for public platforms and not for private businesses.
That’s an amazing revelation to me that I haven't considered earlier.
You can for example pick up the megaphone in a public park and say anything you want except for inciting to violence or libeling someone. That is guaranteed and protected by the First Amendment. Your right to talk in such public spaces is protected by the Federal government.
But CNN or Washington Post are private enterprises that offer no such rights.
As Prof. Stone has explained on Michael Smerconish’s CNN Sunday talk show program (Jan 9, 2020), no one in the world has the right to talk on CNN or publish an op-ed in New York Times. Those are privileges offered or not, and they are not protected by the First Amendment.
Interesting to say the least.
The Second Dimension
A second dimension of the discussion revolves around “Section 230” of the U.S. Communication Decency Act which treats social media companies like Twitter and Facebook not as a publication but more like a telephone company.
Social media companies do not create their own content; they just provide the means for others to create their own content. Hence, they are not liable for their content just like a phone company cannot be held liable for what two phone subscribers say to one another by using the phone network. They cannot be held liable for the content, the argument goes.
But since they are at the same time private companies, they can also deny any content that they think violates their corporate principles. They can always justify their decision by saying “it’s not good for our business” and that would be the end of that.
Three Layers of the Problem
This is a complex problem as you can see.
On the one hand, there are limits to our actions, depending on the consequences. Just like you cannot shout “Fire!” in a crowded theater when there is no fire, you cannot storm the Capitol building in the name of free speech.
Let’s say your words are well within the limits of proper and allowable speech.
It doesn’t stop there.
Then there is the issue of whether you are expressing your words in a private or public domain. In the public domain, you have rights protected by the government for all citizens in good order. In the private domain, you have privileges that are accorded or denied by the owners of the company.
Even if all you are writing is a soup recipe, you do not have the “right” to have it published in the New York Times.
After that, we still have the issue of whether the thought is expressed on a platform without any inherent content (like a telephone or a social media website) or a content generator (like CNN or NYT).
These three dimensions of the issue create a multi-layered decision matrix that is not always easy to parse and draw conclusions from.
Questions to Think About
For example, what is the limit of expression on Medium, does anyone know?
What are the responsibilities and liabilities of Medium publications? What are the relative liabilities and freedoms of individual writers (like myself) versus the publication “owners,” if we can call them owners?
Even though I’m not a lawyer, I’m sure that the freedom of expression covered by the First Amendment does not extend to “incitement to insurrection,” for example.
But on many other First Amendment issues, I’m still scratching my head and trying to find the right answers to this complex problem.
Grandma is (Almost) Always Right
Perhaps the old adage is as good as any law on the books:
“Treat others like you’d treat yourself.”
My grandma used to recommend that to me and in my book, her guidance is still pretty good.
But again, the question remains.
Yes, we don’t want to muzzle Socrates in 2021.
Yet, what if someone who wants to overthrow a government decides to treat all others as his fellow government-thrower buddies and expresses his intentions on a private or public platform?
Then what grandma?
