Closing down access to 'free speech' is not a joking matter

December 17, 2015

By Gene Policinski
Inside the First Amendment

If this were a joke, it would have to start out: "So, three censors and a Senate committee walk into a bar..."

Except that it's no joking matter when those calling for private or public censoring of the Internet include the two leading candidates for leader of the Free World, the head of the largest search engine and information company on the planet, and several members of a U.S. Senate committee.

The free flow of information and communication of ideas — even repugnant ones — is a hallmark of American democracy. Even "hate speech" has constitutional protection when it offends, insults or attacks.

The U.S. Supreme Court has a long string of decisions defending speech and speakers that many Americans would like to shut off or shut down. But within a just a few days of each other:

  • Eric Schmidt, the executive chairman of Google, said in an Op-ed piece for The New York Times that his company and others should create algorithmic "tools to help de-escalate tensions on social media — sort of like spell-checkers, but for hate and harassment."
  • Democratic frontrunner Hillary Clinton called on Web companies to "disrupt" terror groups' ability to use social media for recruitment and communication, to "deprive jihadists of virtual territory."
  • GOP poll leader Donald Trump said at a South Carolina rally that "in certain areas" we should just shut down the Internet.

Clinton and Trump took clear aim at the First Amendment. Trump said, "Somebody will say, 'Oh freedom of speech, freedom of speech.' These are foolish people." And Clinton said, "You'll hear all the usual complaints — freedom of speech. But if we truly are in a war against terrorism and we are truly looking for ways to shut off their funding and shut off the flow of foreign fighters, we have to shut off their means of communicating."

But as FBI Director James B. Comey said in a program Dec. 9 at the Newseum, the old model of a Web site "watering hole" where terror operations and communications were centralized is gone — replaced by a world-wide, diverse set of points of contact and communication that defy simple counter-terrorist moves.

Schmidt may be on better legal ground with his robotic-powered battle plan, since the First Amendment protects only against government censorship, not the decisions of private companies. Already, in response to ISIS posts involving savage violence and the beheadings in 2014 of American journalists and others, social media outlets such as Facebook, Google, and Twitter have moved to quickly take down such posts as quickly as they are spotted.

But should the Google chief's plan gains any traction, it surely will revive talk of bringing such massively powerful private information companies under the First Amendment — and thus, their content decisions — as quasi-governmental entities, much as we view electric, water and other public utilities.

Other Web battlegrounds include the provision of government "back-doors" to encryption of Web messages, and an active proposal in the U.S. Senate Intelligence Committee that would require private internet firms to report suspicious terror activity to government authorities.

Such easy-to-the-eyes tools have major flaws. Critics of giving government the keys to decipher communication say it will also pave the way for skilled terrorists to undermine Web security, and will allow repressive regimes to track down dissidents and thwart press attempts to uncover corruption and human rights violations. Opponents of the Senate legislation requiring private companies to monitor and report is more likely to have two negative effects: Some companies to turn away from current levels of surveillance to avoid liability, or to flood police with all manner of "suspicious" e-mails so as not to be blamed for missing a critical note.

Left unsaid is what many deem the most-effective counter to terrorist propaganda and to attempts to recruit new advocates: The First Amendment's guiding principle that the best counter to speech you don't like is more, not less, speech.

Brave people like the Syrian online freedom fighters "Raqqa is being Slaughtered Silently" effectively use news and information gathered at the risk of death from inside their nation to show there's no "paradise on Earth" in ISIS-held territory, and to discredit the notion that there's salvation in harming others.

There's nothing "foolish" in that.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at Follow him on Twitter: @genefac.

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