What's On the Shelf?

New book explores the spread and hazards of 'bad speech' on the internet and its risk to democracy

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With the ubiquity of hate speech, disinformation campaigns, incitement to violence and other “bad speech” across the internet, some argue that, left unchecked, the very existence of democracy is at risk.

In their upcoming book, Social Media, Freedom of Speech and the Future of Our Democracy (August; Oxford University Press), two of America’s leading First Amendment scholars tap a high-profile cast of contributors to explore whether there is anything we can—or should—do about the proliferation of problematic speech online. We asked Columbia University President Lee C. Bollinger and his co-author, University of Chicago Professor Geoffrey R. Stone, about some of the findings, ideas and solutions from their book.

What options are out there currently for victims of “bad speech,” and have platforms done enough to protect individuals and the public?

Section 230 of the Federal Communications Act provides that—unlike newspapers, magazines, radio and television stations and cable providers—social media platforms generally cannot be held liable for unlawful or otherwise actionable material on their sites. Thus, if someone posts material on a social media platform that defames a person or threatens a person or invades a person’s privacy, the individual who made the post can be held liable, but Facebook, Twitter or other social media platforms cannot be held liable. Although various platforms have taken a range of measures to remove various forms of “bad” speech from their platforms, there is a general consensus that this has offered a relatively selective and inadequate means to protect the victims of such speech. Moreover, the use of algorithms by social media platforms to send information to users that reaffirms their own views is not actionable under existing law, even though this practice, although in the company’s financial interest, poses a serious danger of polarizing the American people even further over time.

Although you gathered a variety of perspectives on the issue, was there any consensus on the fact that something needs to be done, and that the government, not courts, should take the lead? Or should this be self-regulated by the private sector?

A broad range of experts contributed to our effort to explore these issues, ranging from government officials such as Hillary Clinton and Amy Klobuchar to journalists such as Marty Baron and Emily Bazelon. We have social media experts, including Katherine Adams and Kate Starbird; and constitutional scholars, such as Cass Sunstein and Erwin Chemerinsky. Predictably, they often had very different perspectives on the best ways to address this challenge.

There was substantial agreement, though, on the need to reform Section 230 immunity for social media platforms. Specifically, there was a general consensus that Congress should make Section 230 immunity contingent on the notice-and-takedown of unlawful content and the limitation of Section 230 immunity only to those social media platforms that agree to participate in a self-regulatory organization that would be subject to oversight by a federal agency. In addition, there was consensus that the self-regulatory organization must require platforms to adopt terms of use that disclose how they intend to handle such issues as content moderation and the influence of foreign money and actors on U.S. politics, and that require platforms to provide increased transparency regarding such matters as the goals of the platform’s algorithms and the collection and use of users’ data. In addition, the self-regulatory organization should be authorized to issue fines or other penalties in the event of such actions as violation of its policies or failure to implement risk-mitigation measures. These penalties would have to be meaningful enough to have a deterrent effect, including the loss of Section 230 immunity for significant violations. These are only a few of the many recommendations in the book for improving the current state of affairs.

What are some of the standout thoughts and ideas from the wide range of experts who contributed to your book?

“The flip side of freedom of expression is a right to information. The public has a right to be informed about what is happening on these large internet platforms. However one might characterize these new, powerful entities for purposes of constitutional law, these platforms have lost their right to secrecy. Congress can and should require that they open themselves up to outside scrutiny.” —Nathaniel Persily, professor, Stanford Law School

“We all want American companies to succeed and prosper, but even the most successful, innovative and popular companies have to play by the rules. The goods and services provided may change pretty drastically over time, but the threats to competition from monopolies remain the same. And if we continue as a country to ignore those threats, it will be consumers, workers, businesses and our economic growth that will suffer. That is why we must reinvigorate American antitrust enforcement across our economy by funding our enforcement agencies and updating our antitrust laws for the 21st century economy. Maintaining that status quo is no longer an option.” —Sen. Amy Klobuchar, D-Minn.

“There is a path forward toward a healthier information ecosystem that balances freedom of expression and democratic ideals while minimizing harms and unintended consequences—but it involves re- envisioning the roles that algorithms, affordances and agency each play in our information landscape. There are levers at our disposal for this reformation: policy, education and design. There are also multiple stakeholders with the power to drive and implement reforms: the tech platforms, governments and regulators, civil society, media and even the empowered public.” —Renée DiResta, research manager, Stanford Internet Observatory

“Every now and then in the history of the First Amendment, an issue comes along that poses not just a perplexing and challenging question about some aspect of First Amendment doctrine or some incremental move but calls into question the whole edifice of freedom of speech and press as we have come to know it in the United States. The current debates about the threats to free speech and even to democracy itself triggered by the evolution of our newest technology of communication—the internet, and especially social media platforms—constitute such an occasion.” —Lee C. Bollinger and Geoffrey R. Stone

This story was originally published in the June/July 2022 issue of the ABA Journal under the headline: “Rein It In, or Let It Flow? New book explores the spread and hazards of ‘bad speech’ on the internet and its risk to democracy.”

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