What Kind of Control of Speech?

      Should the speech on social media be regulated? And, if yes, what form such a regulation should take? The controversies around Twitter refusing to take down President Trump’s false allegations involving a prominent news anchor in a murder, followed by the controversies, this time coming from the opposite direction, around Twitter commenting on some of Mr. Trump’s tweets, show just how contentious this question is. At issue here the specific problem concerned the permissibility of the moderator (Twitter) to let the audience know that the evidence does not substantiate Mr Trump’s claims (in the case of the claims about fraud related to mail-in ballots) or to warn the audience about the violence-inciting character of the claims (in the case of the tweets about the protests). But the question of the liberty of speech and proper scope of regulation can also take the more direct question of whether content should be banned entirely. A version of this question re-emerged again very recently with respect to the controversy around the “Cancel Culture”. But while this debate concerns individual action to a larger extent – should people ostracize those with offensive comments? – it reflects a larger worry about the rules of the system – should we prefer keeping a seemingly libertarian system of rules that enables unrestrained freedom of expression, including expression of viewpoints that might come across as insensitive, offensive, and, in some cases, even false?

     Those who argue against the regulation of speech on social media usually invoke the argument that society benefits by having unrestricted freedom of speech: even if some ideas are wrong, free debate can show why those ideas are wrong; if ideas, however, are correct, but some people – the government, the social media regulator, etc. – just think that they are false, and try to censor them, that is the end of the matter: since there is no debate, we could not know that they are actually true. We simply cannot know with certainty that something is true: we need to let our ideas to be challenged by others, to see whether our sound. There might be points of view and relevant bits of knowledge that we might have been ignorant of, or that we simply neglected to bring to bear in developing our ideas. The others’ participation to the conversation would compensate for this limitation. This holds even when our ideas and presuppositions are challenged by what we might take as racist or offensive comments. We have no way to know that our ideas are true. We have to accept the challenge, even if this might be emotionally discomforting, since this is the only way to know the truth.

      This argument for restricting regulation of speech has come to be known as the argument from the “marketplace of ideas”. First formulated by John Stuart Mill, it became the foundations, in US, of the jurisprudence of the First Amendment (which guarantees freedom of expression), with its articulation by Justice Oliver Wendell Holmes Jr. in dissent in Abrams v. United States: “The best test of truth is the power of the thought to get itself accepted in the competition of the market”. A debate could be seen as the competition on a market: those ideas that are accepted can be seen as the correct ideas, while those that are rejected can be seen as wrong. The “marketplace of ideas” metaphor makes salient what is at stake: it is the invisible hand of the market, rather than the government, that conduces to truth. If there is no state intervention and if the ideas are left to flow naturally, then we can come closer to truth than in the alternative in which some ideas and positions were settled in advance by the government.

       A way to unpack the “marketplace of ideas” metaphor is like this: on an ordinary market of goods, we do not seek to predetermine the outcome in favour of any firm, but we let the blind market process select as the winner that firm that offers the products at the best quality and the best price for consumers. Similarly, on a “marketplace of ideas”, we do not seek to impose on others what ideas to accept as true, while censoring anything else; rather, we let the process of debate to work its magic: whatever idea meets the most acceptance, after a debate in which all pro and con arguments have been aired, that idea is, if not the true one, than at least the closest to true. And there is more: on a well-functioning market, once a firm gets more profitable by selling products that consumers prefer to those of its competitors, new competitors emerge on the horizon, slashing the profits of the firm, but offering a better deal for the consumers. By analogy, just on the ordinary market of goods, there is (at least in theory) this unending cycle of contestation and challenge, which makes sure that no firm acquires monopoly, so on the “marketplace of ideas”, we can have unending debate which make sure that even those ideas that survived the first round of confrontation stand to be challenged by new competitors.

       I do not wish to contest this argument and the accompanying “marketplace of ideas” metaphor. What I will want to do, however, is to point out that this argument itself points to some sort of regulation of speech, while, admittedly, it rules out some other forms of speech regulations. This is because a marketplace of ideas, just as any ordinary market, cannot function in the absence of regulation.

      Take, for instance, the ordinary market in goods. For any such market to work properly, the property rights of the market participants must be secure, so that they can invest in, and trade, their property. This requires government intervention. Similarly, legislation concerning products’ quality assures that market participants could safely trade their goods. And, of course, there must be antitrust legislation, which prevents anti-competitive behaviour on the part of the firms. It seems, then, that, for markets to function properly, there be at least some government regulation.

      The same goes for the “marketplace of ideas”. Consider, for instance, the arguments in a trial. Both the defendant and the plaintiff could be in a competition of ideas of sorts. Nevertheless, for this competition to work properly, there must be a strict regulation, which prevents that any party monopolizes the time, or talks past the other party. Just as an ordinary market breaks down when there is no framework of rules that keeps in check the monopolistic tendencies of a firm, so a “marketplace of ideas” breaks down, and is no longer conducive to truth, when any party monopolizes the flow of ideas, or when the audience and the participants to the debate no longer hear, or when they ignore, what the other side’s point of view is.

      In the case of the social media, the problem of the fragmentation of audiences, with users sorted in echo chambers, or in universes of discourse in which they hear only that which they are already inclined to hear, is well known. But, even if this fragmentation of discourse, which hinders genuine debate, is consistent with freedom of expression, it is no longer a working example of a “marketplace of ideas”. It cannot be conducive to truth in the manner the “marketplace of ideas” is, and this is because the fragmented publics shield themselves and their ideas from any challenge that might come from each other. To make the “marketplace of ideas” to function, it seems that some regulation is required to ensure that as many and diverse points of view are available all social media users, making sure that all audiences confront ideas to which they are instinctively opposed.

       If we justify freedom of speech on the grounds that freedom of speech enables a marketplace of ideas, and if the marketplace of ideas cannot work in the absence of the regulation of speech, then it follows that freedom of speech can be subject to regulations (either by the government or by the social media themselves) which ensure that the competition of ideas works.

      Where does all this leave us? Let us return to the cases with which we began. It seems that what I said above justifies the kind of measures imposed by Twitter on Mr. Trump’s tweets, since they ensure that Mr. Trump’s audience has access to different points of view on the subject. This, however, should not be the practical limit of what I have argued above. If they do not self-regulate, social media should be regulated by the government to make the marketplace of ideas more competitive. Nevertheless, if freedom of speech is indeed justified as an enabler of the marketplace of ideas, then not all kinds of regulations are justified. For instance, regulations which remove content that might be considered offensive are unjustified.

© Simona Prilogan

Photo credit: Pixabay

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