Can Free Speech Survive the Internet?
Ask an Expert: Suzanne Nossel of PEN America on open expression in the Digital Age
Over centuries, writers and dissidents pieced together the ideals of free expression, recognizing them as the foundations of a healthy society. But these ideals sprung from an analog world that is largely gone. Today, speech includes rampant conspiracy theories, mass political manipulation and mob harassment campaigns—much of it taking place on tech platforms controlled by private companies.
Many of us who hold to free-speech ideals are unsure how to apply our principles in this new context. So, as part of the ongoing Persuasion feature “Ask an Expert,” we sought out someone with insight into questions we’ve been pondering. In this case, Suzanne Nossel, chief executive of PEN America and author of Dare to Speak: Defending Free Speech for All.
—Tom Rachman, Managing Editor of Persuasion
Persuasion: Is it naïve to think of free speech as we used to? Or should we hold to those existing principles more firmly?
Nossel: The rationales that motivated the protection of free speech—that free speech can be a catalyst for truth; that it is an enabler of creativity, artistic expression, innovation; that it can propel societies forward by surfacing human needs and demands and mobilizing action and change and social progress; that free speech is a spark for mass movements and an essential safeguard to enable dissenters to have voice and influence—all of that holds in the digital realm. But we have also seen a whole set of new dark sides to free speech, most of which existed in some form in the analog world but that have intensified. If the marketplace of ideas is flooded with disinformation, the quest for truth breaks down, impeding the ability to sort fact from falsehood, and even discern the best ideas. There’s also online harassment and conspiracy theories that are weaponized online. We’re coming to grips with these harms of speech that are intensified and worsened in the digital realm. But one of the benefits of free speech is that it’s a safety valve: If people feel they’re able to express themselves and engage in discourse, their propensity to resort to violence may be lessened, because they have that satisfaction of knowing that they’ve engaged an audience, and that their ideas are being wrestled with. If that is thwarted, the impulse to resort to other means can rise to the forefront. That’s the tension we’re dealing with, and there’s an open question about whether we can successfully confine the harms of speech in ways that still enable the benefits to be felt.
Persuasion: In 2019, you argued that Twitter should not ban Trump for violating its rules. You also said that, if he began using Twitter to implore his followers to carry out violence, that might be different. What’s clear is that his recent expulsion from social media has had an impact; he has largely gone silent. In retrospect, what was right in the case of Donald Trump? And what lessons does his case hold for policies on speech on social media?
Nossel: It was correct for Twitter to allow him to continue to use the service during the campaign. In the run-up to an election, the value of people being able to see and hear him for what he was, was significant. Some surveys suggest that his Twitter feed had a detrimental impact on political opinions of the former president, and that suburban voters who turned around in sufficiently large numbers to vote him out of office may have been influenced by the unfiltered, incendiary messages that he would spew forth. If you had shut down Trump and not Joe Biden during a general election campaign, it would have fed directly into his supporters’ claims that Silicon Valley behemoths are guilty of anti-conservative bias. Twitter did get better at contextualizing that speech and in some cases suppressing it algorithmically and blocking it, particularly false claims with respect to the election process. That was an appropriate approach, still allowing the public some access to the person who was running for president and wielded enormous power. After the election, the calculus was different, and that public good of enabling voters to see their president for what he was no longer held in the same way because they weren’t about to render this incredibly consequential judgment. His actions did go to exactly what I worried about in 2019, which was “Are we on the verge of incitement to a violent insurrection?” I’m glad that Facebook is having its oversight board examine the matter, and I hope they will give a detailed articulation of how this fits into international human rights standards—how the principles would apply in the case of authoritarian leaders around the world, in situations of emergency where autocrats seek to suppress the speech of others on the grounds that it constitutes domestic terrorism or is a threat to public safety. So, how can we draw the lines in ways that will minimize the impairment on free speech, and won’t create precedents that can be twisted to suppress dissent?
Persuasion: Much comes down to the question of having “the public square” in the hands of private companies.
Nossel: Well that’s a huge issue. All of our First Amendment jurisprudence, and most of the free-expression jurisprudence around the world deals with infringement on speech by governments. That was the only concern of the framers of the Constitution, and it’s been the overwhelming concern of court decisions. There’s very little dealing with impairments on free speech by private actors. That’s because, until now, the marketplace was so fragmented, and you just didn’t have these entities that collectively—one, two or three companies—accounted for such a vast swath of the public square. If you do think about the purposes for which we protect free speech, it’s absolutely the case that the actions of private companies can either advance or set back those goals. I don’t think it’s good enough to simply say, “Well, they’re private companies, they can do whatever they want.” That’s true as a legal matter. But what we’re seeing—we saw this in the context of Trump—is just how awesome their power is. We had the sitting president who, all of a sudden, went silent on his platforms of choice.
Persuasion: Much of the conversation about free speech pertains to the tech giants in the United States, so it revolves around First Amendment questions. But this is a global issue as well. You worked on human rights at the State Department, and in the leadership of Human Rights Watch and Amnesty International. What are your thoughts on how information in other countries should be considered?
Nossel: These are global platforms and there are global stakeholders who have a lot to say about how these decisions are rendered. The decision that Twitter or Facebook takes in relation to Trump may have implications for how they handle Vladimir Putin or Xi Jinping. That does make it complicated. The First Amendment, when it comes to government speech, is the most protective standard in the world. But as private companies rather than government entities, platforms like Facebook and Twitter are not constrained by the Constitution’s protections for free speech, so they don’t have to define incitement as narrowly as the First Amendment does, and they don’t. If you look at Facebook’s community standards, they ban all sorts of speech that the government could never prohibit. They have to, I think, for many categories of speech, whether it’s pornography or scams, or false information about health matters like Covid-19. There’s a kind of public consensus that a more aggressive approach to policing by these private companies is warranted. The question is how we deal with political speech, where decisions can have boomerang effects if particular groups feel silenced. The power to police speech historically, and in our own time, tends to be unbalanced and used to suppress the views of the dissenters, the marginalized, those out of power, and to reinforce the prerogatives of those who have the greatest control. How do we combat that propensity? Trying to answer this in a global context is difficult, and while the First Amendment doesn’t attach or bind these U.S.-based companies, it does frame the thinking of the lawyers and top executives who have at least a professed fealty to principles of free speech.
Persuasion: Six years ago, PEN America faced controversy over giving an award for courage to the French satirical newspaper Charlie Hebdo, following the January 2015 massacre of its editorial staff by two Islamists incensed over the publication of cartoons of the Prophet Mohammed. More than 200 people affiliated with PEN America, including prominent writers, objected to the award, arguing that power relations and inequality meant that the Charlie Hebdo defense of doling out “equal-opportunity offense” was unacceptable. Since that time, the debate over “harmful speech” has grown. What did you learn from this case? What lessons did you take regarding offensive speech and platforming?
Nossel: One lesson is the importance of intent and context when evaluating speech. Writers whom we very much respected came to us and said, “Look, we think you’re giving this award to a racist magazine.” So we started looking at that more closely. I was horrified when I saw one Charlie Hebdo cover image, and thought maybe we’d made a terrible mistake because it depicted a black woman shown in a caricature as an ape. It was the most offensive, incendiary iconography that you could imagine. I thought, “How could someone draw this, much less publish it?” But then I read on about what that cartoon was, and it turned out the image was of Christiane Taubira, a French cabinet minister who had been mocked by the right wing with the most overtly racist tropes. What the cartoonist was doing was pointing out how outrageous and blatant and deeply offensive that was. Taubira understood that—and we know this because, when the cartoonist who drew that image was murdered, she was the one who gave a eulogy at his funeral, and spoke very movingly about how important it had been that he had stood with her. At the same time, I learned something else, which is that intent and context don’t mean you can just dismiss that instinctive reaction that someone might have to a deeply offensive image like that. We have to recognize that it is the nature of satire that it is edgy, it pushes us, it’s often on the cusp of misinterpretation. Often at first, you’re not sure what you’re seeing. We should have space for those who push those outer boundaries, and are willing to go to the far precincts, and take the risks of speech that may upset others—but also be cognizant that intent and context, particularly online, is often divorced from the image itself, and that that image can be misunderstood, can cause people to feel deeply upset, can invoke past traumas.
Persuasion: The issue of free speech seems to be splitting along polarized political lines lately. Can you explain what’s going on there, and what we need to do to ensure that that free speech remains an issue that concerns all?
Nossel: That is a big concern that I have. Going around to college campuses and talking to young people, I came to worry that we were at risk of losing a rising generation when it comes to the principle of free speech. This is because progressive young people have come to see free speech invoked in relation to hateful speech as a smokescreen for racist or sexist ideas. If that’s the only context in which free speech comes up in your life, you may feel: “This is not something that has anything to do with the struggles that I’m waging. In fact, it’s pushing in the opposite direction; it’s protecting those who stand in the way of an inclusive and equal society.” Some free-speech defenders tend to be dismissive of that skepticism, and call young people “coddled snowflakes” if they object to hostile speech. I think that’s a misreading. A lot of what can manifest itself in censorious impulses among young people is born of a noble instinct, which is to protect people from harm, to drive forward a more equal, inclusive society. Our job as people who care about free speech is to explain how the ideals of a more diverse, inclusive, equal, racially-just society can and must coexist with robust protections for free speech. There’s a powerful case for the role of free speech in social justice movements—people lived this over the summer. Even during a pandemic, we saw this incredibly powerful racial justice movement take over streets all across the country. That wouldn’t have happened in a country that didn’t have a tradition of free speech protections. It was far from perfect—there were a lot of violations that we at PEN America documented, and disturbing revelations of the lack of familiarity that the police have with assembly and press-freedom rights. But nonetheless, the movement went forward, and has been so consequential. Free speech rights are essential to the causes that a lot of young people are waging. I also think on the right, there’s this idea I heard people at the Republican National Convention last summer claim, to be the party of free speech. That’s hypocritical if you look at the Trump administration’s record, its treatment of the press, and its efforts to muzzle certain ideas on college campuses, and a whole series of ways in which free-speech rights were trampled during that time. But I think it’s also an unhelpful framing, because it turns a lot of people off. Ultimately, we need free speech to be a cause that transcends party politics.
[Interview condensed and edited for clarity.]