Category Archives: Free Speech

An opinion column in the Times, like Tom Cottons last week, can have significant material consequences.Photograph by Julio Cortez / AP / Shutterstock

The September, 2015, issue of The Atlantic included reporting on New Orleans and Havana, essays about Jonathan Franzen and Joan Didion, and an excerpt from Ta-Nehisi Coatess soon-to-be-published book, Between the World and Me, a lyrical indictment of the endurance of American white supremacy (In America, it is traditional to destroy the black bodyit is heritage). At the time, the front-runner in the race for the Republican Presidential nomination, according to nearly every poll, was Donald Trump; yet almost no one was ready to reckon seriously with what a Trump Presidency might look like, and The Atlantic was no exception. The issue did, however, include a piece that warned of a dangerously hawkish turn among a new cohort of conservatives, including the most celebrated freshman Republican senator, a military veteran from Arkansas named Tom Cotton.

But the issues cover story was about none of those things. It was about safe spaces and trigger warnings. The Coddling of the American Mind, by the psychologist Jonathan Haidt and the academic-freedom advocate Greg Lukianoff, argued that a spectre was haunting American universitiesa misbegotten crusade to scrub campuses clean of words, ideas, and subjects that might cause discomfort or give offense. In the articleand, later, in a best-selling book of the same nameHaidt and Lukianoff posited a dichotomy. On one side were the defenders of free speech and open debate, the true heirs to the tradition of John Stuart Mill. On the other were those who, hoping to protect students delicate feelings, preferred policing speech and punishing speakers. The former were clearheaded about the fact that speech is speech and violence is violence. The latter were constantly conflating the two, confusing mere disagreements or jokes with actual threats. Contrary to what you might hear from some campus activists, Haidt and Lukianoff maintained, their safety was not literally at risk, because, in a classroom, a discussion of violence is unlikely to be followed by actual violence.

The Coddling of the American Mind has since been criticizedthe political scientist Jeffrey Adam Sachs, for example, has made a convincing case against several of its findingsbut much of the argument is fine, as far as it goes. And yet this is precisely the question: How far does it go? Haidt and Lukianoff have suggested that campus controversies are more important than they seem, because todays Oberlin sophomore may be tomorrows congressional aide, trained to treat dissenting opinions as affronts to her personal safety. But another potential problem runs in the opposite direction: What if Haidt and Lukianoffs framework is applied too broadly, far beyond the boundaries of the liberal-arts campus? If the free-speech stalwarts worry about the narrowing of debate, then their critics worry about a dogmatic and overzealous kind of broadening. These criticscall them contextualistsare interested not in dismantling the bedrock value of free expression but in weighing it against other values. What if the arbiters of national discourse are so determined to let a thousand flowers bloom, so insistent that the marketplace of ideas can solve any problem, that they will come to see everything, even unvarnished overtures toward fascism, as so much constructive disagreement? Open debate is a wonderful thing, but is it possible to be so predisposed toward openness that you can blind yourself to what is in fact a clear and present danger?

In September, 2015, the editor-in-chief of The Atlantic was James Bennet. The following year, Bennet left The Atlantic to run the editorial section of the Times. His tenure there was contentious from the start. One of Bennets marquee hires was Bret Stephens, an anti-Trump conservative, whose first column for the paper implied that total certainty about the severity of climate change was comparable to thought policing under Stalinism. Some free-speech stalwarts saw this as a delightful provocation, just one more contribution to the marketplace of ideas. The contextualists were less sanguine. Unlike, say, a poetry reading at a campus caf, an opinion column in the Times can have significant material consequences, consequences that are not limited to emotional discomfort. In this case, the material objection was not that Stephens was enraging the sensibilities of liberal snowflakes but that he was giving some amount of intellectual succor to the people and companies engaged in the rapid destruction of the planet, a very real problem that the marketplace of ideas, not to mention the non-metaphorical marketplace, has come nowhere close to solving.

Last week, the Times published an Op-Ed by Tom Cotton, the hawkish senator from Arkansas, called Send in the Troops. In an incendiary tone, Cotton wrote that nihilist criminals are simply out for loot and the thrill of destruction, with cadres of left-wing radicals like antifa infiltrating protest marches to exploit [George] Floyds death for their own anarchic purposes. This claimwhich has been largely discredited, including in the Times own pageswas the basis for Cottons argument that President Trump should invoke the Insurrection Act and use the U.S. military to crush dissidents by force. On Twitter and elsewhere, the free-speech stalwarts treated Cottons column as yet another interesting thought exercise. But the contextualists saw it as a specific and actionable threat. Cotton was not a professor assigning The Bell Jar without a trigger warning. He was imploring a man he knows, a man who happens to control the worlds most powerful military, to physically subdue untold numbers of his own citizens. Nor was this purely hypothetical. Trump has often repeated his admiration for vicious strongmen around the world, his desire for unchecked power, and his belief that street protests should be met with overwhelming force.

There was a national uproar over the column, and a backlash to the backlash. Much of it took a familiar form. The free-speech stalwarts accused the contextualists of being coddled snowflakes who couldnt handle the rough and tumble of debate. But things have gone too far in this country for an old script about campus culture wars to be of much use. Cottons piece was published two days after federal officers used batons and pepper balls to disperse peaceful demonstrators outside the White House, clearing a path for Trump to glower in front of a boarded-up church. In a classroom, a discussion of violence is unlikely to be followed by actual violence. But in a republic on the brink of a legitimacy crisis, a country where the highest office is held by a brute and would-be authoritarian, state violence is not an academic abstraction but a constantly looming menace.

Bennet resigned on Sunday, but his successor will surely face similar dilemmas in the near future. In theory, the Times aims to reflect the breadth of the national discourse. It also aims to remain faithful to its bedrock valuesupholding democracy, decrying racism, and pursuing truth, to name a few. In practice, its not always possible to achieve both goals at once. Its easy for observers to call out the Times, or any paper of record, for this or that misstep; its harder to come up with a consistent set of principles that would determine which opinions are fit to print. The dilemma is especially pronounced in the age of Trump, because Trumps values, to the extent that they exist, are antithetical to many of the Times values. As the Times columnist Michelle Goldberg pointed out, any good newspaper should strive to avoid bigotry or dishonesty, but theres generally no way to defend the administration without being either bigoted or dishonest. Cotton, in his Op-Ed, attempted to justify his argument by citing a recent poll suggesting that most Americans agree with him. Critics later questioned this poll result, or at least contextualized it. Should a national newspaper be willing to publish any opinion that is shared by at least half of the country? If the Times simply aims to be a barometer of popular opinion, then a poll would be sufficient. If the paper wants to be something more, though, then some opinions will have to fall beneath its standards.

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The Tom Cotton Op-Ed and the Tired Old Snowflake Defense - The New Yorker

President Trump's war with Twitter is confronting social media platforms with a hard dilemma: whether to take fuller responsibility for what people say on their services, or to step back and assume a more quasi-governmental role.

The big picture: Facebook is trying to be more like a government committing to impartiality and protecting free speech and building mechanisms for arbitration. Twitter, pushed by Trump's inflammatory messages, is opting to more aggressively enforce conduct rules on its private property, like a mall owner enforcing rules inside the gates.

Be smart: The escalating battle between President Trump and Twitter is now splaying this dynamic out on the stage of national politics, during a pandemic, at a moment of high tension over police violence. That's forcing Twitter and Facebook, which have long enjoyed the fruits of their ambiguous status as private companies with public roles, to make hard choices.

Why it matters: For better and worse, Twitter and Facebook have become versions of the town square: They're where we conduct public life. But they're also privately owned and operated platforms governed by the laws of business.

The U.S.'s cherished First Amendment aims to block the government from limiting what citizens can say.

Free speech has been a rallying cry for the internet ever since the Supreme Court struck down the Communications Decency Act of 1996, which sought to ban online pornography.

Yes, but: Conservatives have long opposed limits on the freedom of private companies, and the notion that corporations are people with the same free speech rights as individuals sits at the heart of the right's legal doctrine.

Trump is now forcing a different question: Whether we're happy with corporations assuming government-style First Amendment responsibilities to tolerate even offensive speech.

The bottom line: When the laws governing social media content were set in the '90s, the biggest fear in the minds of internet activists was a power-grabbing government telling people what they could and couldn't say online.

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Trump forces fateful choices on Twitter and Facebook - Axios

Twitter Inc. and President Donald Trump are generating headlines this week over a dispute tied to social networks attempts to moderate what users post.

But its hardly the first time that the San Francisco-based company has tangled with Washington over free-speech issues.

Twitter TWTR, -1.99% has lobbied this year and last year on a Senate bill called the Ending Support for Internet Censorship Act, according to an analysis of disclosures by OpenSecrets.org, a website run by the nonpartisan Center for Responsive Politics.

The measure, rolled out last June by Republican Sen. Josh Hawley of Missouri, would lead to Federal Trade Commission audits of big social-media companies for political bias. As Hawley introduced the legislation, the senator said it states that if tech giants want to keep their government-granted immunity from traditional publisher liability, the companies must bring transparency and accountability to their editorial processes and prove that they dont discriminate.

Trump praised Hawleys bill last July, saying the senator is doing some very important legislation, because we have to do something about what is happening. Hawley talked up his bill on Wednesday in the wake of the presidents latest fight with social-media platforms.

They get this special immunity from suits and from liability thats worth billions of dollars to them every year. Why are they getting subsidized by federal taxpayers to censor conservatives? he told Fox News on Wednesday.

Read more:Trump threatens to close social-media platforms as he fights with Twitter

Twitter and other social-media companies, on the other hand, have criticized the legislation through statements issued by their trade associations.

NetChoice, whose members include Twitter, Facebook Inc. FB, -0.16% , Alphabet Inc.s GOOG, +0.86% GOOGL, +1.07% Google and Paypal Holdings Inc. PYPL, +4.18% , said last June that the bill prevents social media websites from removing dangerous and hateful content, since that could make them liable for lawsuits over any users posting. The trade group also said Republicans should be very worried about Sen. Hawley giving control of the internet to the FTC, since it empowers a future Democratic administration to suppress conservative speech online.

The Internet Association said the measure forces platforms to make an impossible choice: either host reprehensible, but First Amendment protected speech, or lose legal protections that allow them to moderate illegal content like human trafficking and violent extremism. That shouldnt be a tradeoff.

Twitter has spent $350,000 this year on its Washington lobbying efforts as of March 31, according to OpenSecrets.org figures. Thats after the company spent $1.48 million last year its biggest annual outlay on lobbying ever, but far less than the $16.7 million that Facebook Inc. FB, -0.16% shelled out in 2019.

Besides lobbying on Hawleys Ending Support for Internet Censorship Act, Twitter has disclosed lobbying in the past year and a half on the Save the Internet Act, a Democratic measure related to net neutrality, and the EARN IT Act, a bipartisan bill targeting online child sexual exploitation. A company spokesperson said Wednesday that its Public Policy team advocates on behalf of our company, our employees and the people who use Twitter.

Analysts have said that there are so many different bills aimed Big Tech that the chaos likely will prevent Congress from making progress on any one issue.

On Tuesday, Twitter marked tweets by Trump with a fact-check warning label for the first time. The president then tweeted that Twitter is completely stifling FREE SPEECH, and he promised big action against the company.

See:Totally absurd Harvard law prof on Trumps charge Twitter is stifling free speech

Also read:Twitter deeply sorry as widower asks that Trumps Scarborough tweets be deleted but wont remove them

Twitters stock was down about 3% on Wednesday, as the broad S&P 500 index SPX, +0.48% gained 1%. The companys shares have lost 12% over the past 12 months, while the S&P has advanced 7%.

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Heres how Twitter has lobbied on free-speech issues as Trump threatens company - MarketWatch

During a Patriot Day and 2nd Amendment rally, Governor Andy Beshear was hanged in effigy from a tree on Capitol grounds.

FRANKFORT, Ky. Multiple groups of protesters participated in rallies in Frankfort during the Memorial Day weekend.

Protesters claimed Governor Andy Beshear denied them their constitutional rights, some called on the governor to reopen the state and others said they want better conditions for those incarcerated in the state.

A moment captured during Sunday's Patriot Day and 2nd Amendment rally has garnered national attention.

An effigy of the governor was hanged from a tree on Capitol grounds and quickly went viral on social media.

Many in and outside of Kentucky called for those responsible to face charges.

WHAS11's Kristin Goodwillie talked to a professor and legal expert with University of Louisville Brandeis School of Law to find out if a crime was committed by hanging an effigy of the governor or if the act is a freedom of speech?

"The government would have to show that it was intended as a threat. Not just that it was perceived as a threat by other people," professor Sam Marcosson says.

Marcosson says it would have to be either a threat situation or incitement situation to be considered a crime.

Download the WHAS11 News app now for the latest information and updates.

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Threat or free speech? Effigy of Kentucky Gov. Andy Beshear - WHAS11.com

For years, Donald Trump and the conservative world in generalhave been in an uproar over what they claim is a left-wingassault on "free speech."Actual instances of conservatives having their First Amendment rights constrained by government censorshiphave been thin on the ground, of course, if not nonexistent. So conservatives have had to improvise, expanding the bounds of"free speech" to encompass theirvagueright not to be criticized, their right to harass other people without consequences, and theirright to hijack the resources of private companies in order to blast hateful or false ideas as far and wide as possible.

Classics of the genre of "free speech" whining: Conservative columnist Bret Stephens declaredthat it wasan assault on"free speech" for liberalsto criticize the way the New York Times portrays Nazis. Stephens'Times colleagueBari Weiss portrayeda group of pseudo-intellectual right-wingers as free-speech martyrs because meanie leftists make fun of them. Trump held a "free speech" event at the White House featuring no actual victims of government censorship, but a guest list heavy with people who are frequently accusedof lying, spreading conspiracy theoriesand outright racism. Trump signeda "campus free speech" executive order surrounded by conservative activists whose main complaint was that other students and professors speak freelyin ways that make them feel ashamed or uncomfortable.

It's always been obvious that for Trump and other conservatives who whine about "political correctness,"the entire concept of freedom of speechhad nothing to do with the constitutional bar on government censorship. It was always about asserting their presumedprivilege to say bigoted, stupidor false things with nopushback or correction from other people using their own free-speech rights. In case you've feltany doubt about the depth of right-wing hypocrisy on this issue, the past week should erase it.

Trump has been on a lengthy tantrum all week because Twitter using not just itsfree-speech rights but itsright, as a private company, to control who uses itsplatform has decided, after all this time, to add some gentle context to the president's increasingly derangedtweets. There's been a growing uproar over Trump using Twitter to accuse MSNBC host Joe Scarborough of murder, culminating in the widower of the alleged victim (who actually died in a tragic accident) writing a letterasking Twitter to ban Trump because of the pain these false accusations are causing.

Apparently in response, Twitter officials havestarted adding warning labels on some Trump's tweets in which he overtly lies or encourages violence. Of coursethey haven't done this to all tweets of this nature, or the presidentialfeed would be nothing but warning labels.But Twitter did addlinks totwo of Trump's tweets spreading lies about mail-in ballots, pointing usersto factual information about voting. In the early hours of Friday morning, Twitter also addeda warning toa Trump tweet in which he apparently encouragedpolice to kill civilians in Minneapolis, where protests against police violence have escalated into widespread unrest that has included some reporteddamage to private businesses.

Twitter is only doing what free-speech advocates real ones, not the fake right-wing ones have always offered as the best way to counter hate speech and lies: The way to fight bad speech is with more speech. Trump was not "censored," and since Twitter isn't the government, whatever decisions it makes can't violate the First Amendment in any case.On the contrary, the company is using itsfree-speech rights to add context and information, which are critical for robust political debate in a democracy.

Trump responded by signing an incoherent executive order threateningto shut down Twitter or any other social media platforms that offer such fact checks. He issued ahigh-minded statementabout "free speech,"but the reality here is that he is literally threatening government censorship a textbook First Amendment violation to keep a company from freely offering information to the public.Thisperfectly distills whatright-wingers mean when they talk about "free speech" their privilege to speak without criticism or correction,a privilege that can only be secured by silencing others.

While this is all going betweenSilicon Valley and Washington, out in middle America, we're getting an eyeful of how little free speech actually matters to conservatives, as police in Minneapolis have shut down the ability of citizensto protest police violence and have even attacked the free press for covering what's going on.

Things kicked off on Tuesday, when police used a few broken windows and spray paint as a pretext to fire canisters of tear gas at peaceful protesters, sending them scattering in all directions. The protesters were there to express anger over the death of George Floyd at the hands ofa now-fired Minneapolis police officer named Derek Chauvin, who knelton Floyd's neck until he died while Floyd himself, and a crowd of onlookers, pleaded for hislife.

There can be no doubt about what happened on Tuesday: The police didn't approve of the protest and seized on the thinnest of excuses to shut it downwith violence. Sothings are spiraling out of control in Minneapolis, where people were actually denied their First Amendment right to free assembly and peaceful protest and areunderstandablyfurious.

On Friday, the actual assault on free speech by police was crystallized furtheras police arrested a CNN reporter named Omar Jimenez, live and on air. Jimenez was doing nothingillegal, but wastrying to cover the no-longer-peaceful protests, whichis his job. In fact, in the video you can hear Jimenez telling police that he and his crew willgo whereverpolice tell them to, aslong as they can keep thecameras rolling. But the police arrested Jimenez, along withproducer Bill Kirkos and photojournalist Leonel Mendez, for no apparent reason other than to suppress coverage they didn't like.

Between Trump's tantrum and the brutal suppression of free speech by police in Minneapolis, we're getting a clear picture of howthe American right really feels aboutfree speech. Protests are shut down, journalists are arrested. The president is gleefully fantasizing about using property damage as an excuse to kill protesters, and then flipping around and threatening to shut down a tech company for the sin of countering his lies with truth. (Which is truly the least they can do, after all this time.) Taken together, what we see is an American right that is happy to bringstate power to bear in order to silence people who speak out against racism or who correct right-wing misinformation.

So when you hear conservatives waxing poetic about "free speech" and the supposed evils of "political correctness,"know this: It's total bullshit.They're asserting a made-up special right to spew noxious lies and hate speech, totallyfree of criticism or consequences, while everyone elseis obligedto shut the hell up. That was always true, but looking at this terrible week in America, itshould be undeniable.

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For Trump and his man-baby fans, "free speech" is the right to act out with no consequences - Salon

Ahrar AhmadJune 01, 2020

It is almost axiomatic that free speech is indispensable to democracy.

It is also obvious that almost all human progress depends upon an environment of free thought and free expression. Scientific advances would not be possible without challenging and revising received wisdom and provoking new explanations based on logic and evidence. Human creativity would not be possible without allowing the audacity of imagination to extend aesthetic tastes and frontiers. Intellectual growth would not be possible without the willingness to tolerate diverse, sometimes contradictory, answers to life's enduring questions.

Human existence may be possible without these freedoms, but the human condition would be bereft of beauty or joy or meaning.

However, it is important to point out that the notion of "free speech" may be problematic, and generate awkward questions.

Can speech be absolute, universal, unconditional? Are there no limits or boundaries or responsibilities regarding the exercise of free speech that we must acknowledge? Shouldn't historical contexts, cultural dynamics and social norms determine the quality or level of free speech that may be practiced?

Moreover, should we allow the leakage of state secrets that may jeopardise national security? Pornography that objectifies and degrades women? Hate speech that not only disparages minorities, but may make them unsafe? Information that is demonstrably false, confusing and dangerous to public welfare, or may hurt the sentiments of some, particularly on matters of race, identity and religion?

Also, what happens when two rights collide when one's right to free speech goes against someone else's right to a fair trial (which may be jeopardised by media reporting), or against someone else's right not to be defamed, or against someone else's right to conduct daily life without disruptions?

These concerns are all legitimate, but are neither unique nor novel. There is a long and lively jurisprudential tradition that has evolved around such questions. There have been doctrines that have been established, tests devised, definitions provided, guidelines presented, and reasonable conditions clarified. These may well serve as the basis to approach, if not resolve, some of these problems.

Moreover, it is most reassuring that the trajectory of free speech, considered in this essay essentially as "political speech", has almost always been upward. Its ambit and authority have expanded steadily. This evolution will be discussed here with reference to court cases in the US judicial system.

During WWI and the Red Scare days that followed, the US Supreme Court interpreted "free speech" very narrowly and upheld the conviction of citizens for distributing leaflets to oppose the draft (Schenck v. US, 1919), calling a strike to oppose US efforts to overthrow the Communist regime in the USSR (Abrams v US, 1919), publishing a "left-wing manifesto" in which the author had advocated the overthrow of the government (Gitlow v NY, 1925), or just being associated with the Communist Party (Whitney v CA, 1927).

In these cases the Court used the "clear and present danger test" where the exercise of free speech could supposedly endanger the public in some way, or the "bad tendency test" where it could possibly lead to "evil" consequences in the future. Incidentally, it was in Schenck that Justice Oliver Wendell Holmes had famously remarked that one cannot be allowed to "falsely shout fire in a crowded theatre" (and elsewhere, is reported to have said that "the right to swing your arm ends where my face begins"). Ironically, Justice Holmes became one of the fiercest defenders of free speech later.

By the 1930s, when the Red Scare had abated (the US recognised the USSR in 1933), the Depression was creating economic havoc, President Franklin D. Roosevelt had his majority in the Court by the late 30s, and the orientation towards free speech shifted.

Justice Cardozo instituted the "preferred position" doctrine (Connecticut v Palko, 1937), which held that there was a "hierarchy of constitutional rights" in which free speech would always be privileged over others. Justice Harlan Stone (US v Carolene Products, 1938), in probably the most famous footnote in constitutional history, invoked the standards of "strict scrutiny" to apply to laws that sought to limit rights under the constitution. Even the requirement to salute the national flag, mandated in many States, was invalidated as an infringement of First Amendment rights (West Virginia State Board of Education v Barnette, 1942).

The Warren Court (1953-1969) advanced free speech aggressively. In Yates v. US (1957) the Court made the crucial distinction between advocacy of an idea and incitement to action, and ensured the protection of the first (a belief cannot be a crime). Based on this ruling, many imprisoned members of leftist parties who had been jailed under the Smith Act (1940), or because of anti-communist hysteria following WWII (McCarthyism), were released.

This principle was further sharpened in Brandenburg v Ohio (1969), when the conviction of a Klan leader for an ugly racist rant, was declared unconstitutional because while his speech was inherently offensive and inflammatory, it did not advocate "imminent lawless action", the Court's only condition for limiting speech. All previous "tests" for political speech were thus rendered moot under this stringent standard.

Thus, it became perfectly legal to criticise, satirise, or condemn any law or leader, any historical event or ideological position, any people or policy, or propagate anything utterly silly (after all, as the Courts pointed out, citizens have the right to be stupid), as long as a specific criminal act was not being directly encouraged. Citizens can agitate to "throw the bums out", or mobilise to "destroy capitalism", or demand to "end the lock-down", or denounce "gays, or Muslims, or vegetarians, or abortion defenders, or Senator X, or a book, etc. as evil", but one cannot provoke public harm by saying "hit that person" or "rob that bank" or "vandalize that building".

The Courts also expanded free speech rights through the "vagueness" and "over-breadth" doctrines which stipulated that unless the language of laws that limit speech is clear and specific, they would be over-thrown. On this basis, it supported the right of school children to wear black arm bands to oppose the Vietnam War as "symbolic speech" (Tinker v. Des Moines, 1967), which was also invoked to allow the burning of the US flag as political opinion (Texas v Johnson, 1989); established the three conditions (actual malice, knowledge of falsity and reckless disregard of facts) to justify a libel suit (New York Times v Sullivan, 1964); and clarified that "no prior restraint" can be imposed on the press by the government, and thus permitted the publication of the Pentagon Papers (New York Times v US, 1971). The one issue on which the Court dithered involved national security including protection to "whistle-blowers".

Undoubtedly, there has been a persistent expansion of free speech in the US. This pattern is obvious in most democratic countries. Unfortunately, Bangladesh defies that trend.

Three kinds of evidence may be presented in support of that last contention.

First, Bangladesh fares poorly in measures which compare the robustness of freedom in various countries. Bangladesh was ranked 151 out of 178 countries by Reporters without Borders, with Sri Lanka at 127, India 142 and Pakistan 145. In the Human Freedom Index of the Cato Institute, Bangladesh was ranked 138 out of 162 countries, slightly ahead of Pakistan at 140, but behind Sri Lanka at 110, and India at 94. Freedom House classified Bangladesh in 2020 as only "partly free" with a total score of 39, slightly better than Pakistan with 38, but much below Sri Lanka with 56 or India with 71.

What is even more troubling is the fact that in most of these rankings, Bangladesh's position appears to be worsening. For Reporters without Borders, its position slipped by one over the previous year, in the Cato Institute index it came down by .08 from 2019, and in the rank ordering of Freedom House, Bangladesh was clustered with countries which had significant deteriorations in composite scores.

Second, the Information, Communication and Technology Act (ICT, 2006, amended 2013), and the Digital Security Act (DSA, 2018) appear to problematise the right of free speech granted in several provisions, but most explicitly in article 39, of the constitution of Bangladesh.

Section 57 of the ICT Act criminalises any "material that is false or obscene" which may influence the reader "to become dishonest or corrupt", causes "to deteriorate or the possibility to deteriorate law and order, prejudice the image of the state, or person" or "may hurt religious beliefs instigated against any person or organization".

Similarly, Section 21 of the DSA indicates that any person who carries out "any propaganda or campaign against the liberation war of Bangladesh, cognition of liberation war, Father of the Nation, national anthem or national flag", or Section 25 which suggests that any person who "sends such information which is offensive or fear inducing (and intends) to annoy insult, humiliate, or denigrate a person or tarnishing the image of the nation, or spread confusion" will all be considered to be criminally liable.

Allowing the sweeping generalities and ambiguities inherent in these acts as the basis for criminally prosecuting people would probably have embarrassed even Emperor Draco (from whom the word Draconian is derived). Moreover, giving police almost unlimited power of search, seizure and arrest without warrant, imposing severe punishment regimes, and making some offences non-bailable, made the Acts even more menacing.

Third, it was hoped that these Acts were "ones for the book" and would not be used much. Jyotirmoy Barua indicated that between 2006 and 2013 no cases were prosecuted under Section 57. However, after that, the numbers began to increase exponentially and between 2013 and April 2018, Human Rights Watch calculated that 1,271 charge sheets had been submitted under this Section.

Under the DSA, which superseded Section 57, The Daily Star reported that there were 34 cases filed in 2018, 63 in 2019, and by May 6 of 2020, almost 60 involving about 100 people. Newspapers regularly carry the names and pictures of people (some in handcuffs) charged under this Act.

Politicians of the ruling party and the police have used these Acts primarily to file cases against editors, reporters, photographers, bloggers, baul/sufi artistes, writers and even cartoonists. It is noteworthy that, as Shahdin Malik has pointed out, while "spreading rumours" or "criticising the government" are not specifically mentioned in the DSA, people ARE being arrested on those grounds.

It would seem that the entire exercise was really intended to limit historical enquiry, critical thinking, political satire, policy disagreement, journalistic investigation or personal expression. More than a "chilling effect" on free speech, these laws hang like the sword of Damocles over the population waiting to drop on any hapless citizen at the slightest provocation.

There are three reasons why this is SO frustrating. first, bangladeshis pursued their ideals and earned their independence through a long and intense struggle in which many suffered and millions died. it must be remembered that our national consciousness was rooted in the resistance of the people against those seeking to take away our bhasa (speech) from us. it was not merely a movement to reclaim our beloved language, an essential marker of our identity, but also, in a philosophical sense, it was a metaphor for the freedoms and rights that speech entails.

Second, many of the cases filed today are by people who were allegedly "offended" by someone's exercise of free speech. As Justice Warren had pointed out, the right of free speech means NOTHING if it does not protect speech that someone may find offensive (nice, sweet, agreeable speech does not need protection).

Socrates chose suicide over imposed silence. Khona (famous for her pithy "bochons") had her tongue cut off. Giardano Bruno, a brilliant scientist, was burned at the stake. Galileo was forced to endure house arrest and cease all research and writing, all because what they proposed or taught had offended established beliefs and institutions. Bangabandhu, our Father of the Nation, spent almost half his adult life in prison because the ruling elite had felt mightily offended by his criticisms and demands.

Similarly, every Prophet in the Abrahamic tradition faced persecution because their teachings had offended dominant ideas and practices. The first had to flee his country barely ahead of the Pharaoh's forces and was left wandering in the desert for 40 years, the second was brutally crucified, the last, our very own Hazrat Muhammad (SAW), was hounded out of his beloved city under extremely dire and desperate circumstances. Doesn't history teach us anything?

It must be remembered that the State has NO responsibility to protect the sentiments of hyper-sensitive people and shield them from being "hurt" or offended. These people must educate themselves, grow up, and become tougher. Otherwise it would not only lead to the trivialisation of political discourse, it would also lead inescapably to the "tyranny of the minority" where any small group of people could simply complain of being "hurt", and use it as a pretext to take away people's rights.

Third, such efforts commit the fallacy of "absolutes". It assumes that the ruling establishment has absolute power to do anything it wants; that it possesses absolute knowledge and its official narrative is supreme and permanent; and that the conflation of party, government and State, will give it absolute protection from all challenges. History neither supports, nor forgives, such absolute arrogance.

Limiting free speech may create an atmosphere of threat and intimidation that may provide current rulers (regardless of party) with a sense of smug assurance, and may even contribute to prolonging a particular regime. But this is illusory and always temporary.

When they are no longer in power, they will themselves face, with extreme prejudice, the same environment of intolerance, bullying and arbitrariness that they have visited on others. In the same way they had criminalised anyone questioning their version of history, that version itself will be criminalised. This logic is immutable, this cycle of events inevitable.

We must remember that leaders are never glorified for the number of years they have remained in power, but for the legacy they leave behind. Our leaders must decide whether they want to construct an inclusive, accountable, and democratic future for us, or whether they are merely interested in holding on to power as long as they can. The first will confer greatness on them, the second will bring them dishonour.

In this context, it may be pointed out that it is counter-intuitive for the current government to restrict speech. Its achievements are impressive remarkable economic growth, respect in the international arena, successful trial of war criminals, containment of fundamentalist activism, and so on. It faces no political challenges whatsoever. Given all this, it can easily demonstrate its graciousness and confidence, and regain the high moral ground, simply by expanding the public space for debate, discussion and criticism.

Limiting speech does not indicate a regime's strength, but only its insecurities, its doubts, its pettiness. When leaders can afford to hold their heads high like the Kings of the Jungle, why should they behave like frightened alley cats?

The success of democracy rests on tolerance. The only answer to a bad idea is not to stifle it, but to present a better idea. When any regime does the first, it proves that it lacks the ability to do the second. No democracy can, or should, function under that shadow.

Ahrar Ahmad is the Director General of Gyantapas Abdur Razzaq Foundation, Dhaka.

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On Free Speech and the Imperatives of Democracy - The Daily Star

Opinion | LetterEveryone who wants to see our freedom of civil discourse continue must speak out

By Matt Regier // May 31, 2020

One of the elements at the heart of the First Amendment is a deep respect for the people. It is the public that has the great responsibility of listening to free speech and determining the validity of that speech. We were entrusted by the framers of our nation to have the discernment to judge for ourselves. That is why I was very concerned to read the Flathead Beacon article, Pressure Intensifies on County to Remove Health Board Member. It quotes the Whitefish City Council saying Dr. Bukaceks right to engage in free speech ends where the publics right to be safe from COVID-19 begins.

A quick search to learn more revealed Dr. Birx (an Obama appointed U.S. AIDS coordinator and White House coronavirus task force appointee) stated, There is nothing from the CDC that I can trust. She also said she was worried the CDC was inflating the COVID-19 death rate by as much as 25% (Washington Post, May 9). No matter where you land on the topic of death rates, CDC, government response etc., should we not be able to have the discussion on these topics?

Health board members or Dr. Birx are not my point in writing. This pandemic will pass and we will be on to something else. What will not pass is a city council that is so scared of the First Amendment and the power that it gives to the people that they feel the need to silence the conversation.

I have many friends that are liberal in their thinking. It is fun to grab a pint with them and chat about government roles and personal freedoms. At times we agree, sometimes minds are changed but most of the time we walk away having had a rousing conversation and a good IPA. The same happens with my conservative friends. However, a leftist does not want to even have the conversation. They make accusations like being a danger to the citizens. This of course is according to them. The underlying notion is they dont trust the publics intelligence enough to think for themselves. They skip the dialog and say things like right to engage in free speech ends where the publics right to be safe from COVID-19 begins.

What is ironic is that the Whitefish City Council does have the First Amendment right to express speech that degrades and limits that very same First Amendment right. It is up to us, the people, to stand up for our rights against those that express anti-constitutional views. There are those that enjoy a good conversation; liberal, conservative, independent or even if you are one who could not care less about politics. Everyone who wants to see our freedom of civil discourse continue must speak out. We can change minds, change votes, and change leadership of those around us. Bottom line is have the conversation. President Ronald Reagan was right when he said Freedom is never more than one generation away from extinction It must be fought for, protected, and handed on for them to do the same.

Rep. Matt RegierR-Columbia Falls

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Stand Up for the First Amendment - Flathead Beacon

from the privacy-and-interoperability-go-hand-in-hand dept

When people mention the digital divide, often theyre referring to the divide between people who have access to the internet and those who do not. However, we can also visualize it as the divide between those who benefit from free expression on social media and other digital platformsand those who dont.

In order to get ahead of this burgeoning digital divide, policymakers will need to preserve the values of privacy and consumer choice in a way that one does not undermine the other.

This past February, the New York Times profiled Jalaiah Harmon, the creator of the viral TikTok dance, The Renegade. But Harmon didnt create the dance on TikTok; she used a smaller app, Funimate, and crossed-posted her video to Instagram. Instagram is where other popular TikTok creators first learned of the dance. TikTok, like many platforms, doesnt encourage posters to give credit to creators.

Instead of Jalaiah benefiting from the virality of her own dance, other TikTok users did. Those benefits include brand deals, media opportunities, and the chance to connect with the professional dance world. If Jalaiah had been able to easily cross-post from Funimate to TikTok, she may have been able to benefit from The Renegade right from the start.

Apps like Funimate, Dubsmash, and Likee offer smaller, vibrant communities, often popular with users of color and other marginalized communities. These smaller platforms may provide functionality that other apps dont, or they may just foster community in a way that appeals more to users that are not considered mainstream who want to preserve their unique culture. Apps like TikTok may not provide that opportunity, and that is okay when consumers have choices in the marketplace.

However, because these communities are smaller, users have fewer opportunities to monetize their creativity. These smaller applications also have a harder time benefiting from the creativity of their users. In the case of Jalaiah, instead of new users flocking to Funimate to check out Jalaiahs other videos, TikTok benefited from the dance and probably grew its user base because of it.

In Washington, conversations about interoperability (the technical capability of different platforms to communicate with each other and work together) have become one of several pro-competition, pro-consumer choice policy solutions to gain notice.

In the TikTok/Funimate case, interoperability would allow users to create videos on Funimate but have them viewable on TikTok. This functionality would also make it easier for TikTok users to leave TikTok if they thought another video sharing app would provide them with better content, better usability, or just a better community.

One of the most common excuses by tech companies to avoid engaging in interoperability, or even basic data sharing at the users request, is that doing so may violate concerns about preserving users privacy. This excuse is meant to force policymakers to give platforms a reprieve from either more stringent privacy protections, or, if Congress must pass comprehensive privacy rules, to lock in existing platforms and online companies with a competitive advantage. That is a false choice.

Most platforms get a lot of data from their users. Whether its for personalizing the user experience, targeting ads, or both, internet companies collect so much personal information that they know a lot about what the user wants, who their user is, what the user does, whom the user connects with, what the user likes, and where the user moves.

As a result, it is often hard to stop using a platform or leave for its competition. We call this concept the cost of exclusion. If leaving a platform equals leaving memories, artistic works, or friends behind, or even abandoning a digital-self that represents us in ways that we cant offline, then very few people are going to do it. The social cost is too high.

Without a growing user base, newer platforms often cant compete with older, dominant players. This is especially problematic for platforms that cater to marginalized groups like people of color, queer people, or people with disabilities.

Interoperability can help new platforms build up a store of data they can use to improve their services, because when they gain a new user, that user can also bring access to their data and portions of their social graph from the old service. This can increase the power of users voting with their feet by leaving one service to switch to another. If users data becomes shared across services, then the new service theyve chosen can doubly benefit: It gets a new user and a new source of data.

But while sharing data can be useful to both users and platforms alike, how do we preserve users privacy? And how can we prevent the data from being exploited?

First, we need a comprehensive privacy law. A comprehensive law would set a baseline expectation for preserving user privacy, regardless of the size of an online service or platform. Baseline expectations between platforms give all users, regardless of what platform they choose, protection against data discrimination or other privacy violations.

Second, we need interoperability rules that govern internet platforms to be a part of the privacy conversation. These rules wouldnt just govern how platforms are made interoperable, but would also give users additional privacy protections. As a baseline, interoperability rules could limit how platforms use the data they get from interoperable systems. The rules could also prevent platforms from using that data for advertising or any other purpose not explicitly requested by the user.

With combined privacy and interoperability protections, an individual user will remain protected and as their data moves from one platform to the next, with the freedom to share and benefit from their creativity without accepting weaker privacy or giving into the cost of exclusion from a dominant platform. If a user does decide to use an interoperable system, then that users friends or followers data could be available to the new platform if the consent is given by the users friends for interoperable sharing.

The internet is a powerful tool for free expression and, as such, we must preserve spaces where marginalized groups congregate, create, and interact as a community. Niche communities may not represent your individual viewpoint, and some may be outright hateful, but if we are to preserve consumer choices for free expression for some communities, we cannot deny it for others.

If larger platforms are essentially stealing the content, work, and ideas of users on smaller platforms, then that harms not only the individual who created the content, but the original platform that housed the content. Privacy-preserving interoperability could be the solution to preserving spaces for marginalized communities, while still allowing them to benefit from their work.

Filed Under: competition, digital divide, free speech, greenhouse, interoperability, privacyCompanies: funimate, tiktok

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Fighting The Free Speech Digital Divide Requires Interoperability and Privacy Protection - Techdirt

A feature of public life in Tamil Nadu in the last three decades has been the indiscriminate institution of criminal defamation proceedings against Opposition leaders and the media. It is no surprise, then, that the most comprehensive judgment on the limits of the States power to prosecute members of the press for defamation should come from the Madras High Court. The verdict of Justice Abdul Quddhose, quashing a series of defamation complaints filed since 2011-12, is remarkable for applying a set of principles that would firmly deter the hasty and ill-advised resort to State-funded prosecution on behalf of public servants. The first principle is that the State should not impulsively invoke provisions in the CrPC to get its public prosecutor to file defamation complaints in response to every report that contains criticism. The court deems such impulsive actions as amounting to throttling democracy. It advises the government to have a higher threshold for invoking defamation provisions. It notes that each time a public servant feels defamed by a press report, it does not automatically give rise to a cause for asking the public prosecutor to initiate proceedings on her behalf. The statutory distinction between defaming a public servant as a person and as the State itself being defamed has to be maintained.

Justice Quddhose goes on to fault the government for according sanction to the initiation of cases through the prosecutors without explaining how the State has been defamed. He cautions prosecutors against acting like a post office, noting that their role is to scrutinise the material independently to see if the offence has been made out, and if so, whether it relates to a public servants conduct in the course of discharging official functions or not before filing a complaint. So, the court finds that many were cases in which public servants ought to have filed individual cases. An earlier Madras High Court ruling noted that an essential ingredient of criminal defamation must be that an imputation was actuated by malice, or with reckless disregard for the truth. A recent judgment by Justice G.R. Swaminathan enunciated what is known in the United States as the Sullivan rule of actual malice. While quashing a private complaint against a journalist and a newspaper, the judge said two of the exceptions to defamation given in Section 499 pertained to public conduct of public servants and conduct of any person on any public question. This implied that the legislature itself believed that unless it is demonstrated that reporting on a public servants conduct or on a public question was vitiated by malice, the question of defamation does not arise and that even inaccuracies in reporting need not occasion a prosecution for defamation. Within a matter of days, the HC has struck two blows for free speech and press freedom.

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Batting for free speech: On filing of defamation cases against press - The Hindu

The president and Twitter are in a battle over content moderation.

Olivier Douliery/Getty Images

Although the First Amendment doesnt apply to private companies, Twitter was once known as the free speech arm of the free speech party. Besides clearly illegal content like child pornography, Twitter was originally loath to moderate tweets. That has changed gradually, as the platform has tightened policies around violent extremism, abuse, etc.

This year, in response to misinformation related to the 2020 election and the coronavirus pandemic, the company has started to flag and remove harmful content at unprecedented rates. A turning point seemed to come Tuesday, when Twitter finally slapped warning labels on two of President Donald Trumps tweets, which falsely claimed that mail-in voting would lead to widespread voter fraud. That move came after a few days of yet another Trump tweetstorm controversy. On Thursday, Trump retaliated by signing an executive order of questionable legality that could punish social media companies for regulating content.

Its a windingand frankly exhaustingsaga, but indulgent Trump spectacles aside, one of the main tensions here is the question of what responsibilities Twitter has as a medium of discourse and whether it might be changing its core principles to adjust to the role its assumed in the public sphere.

In order to understand how a private company largely built on the idea of freedom of expression has found itself embroiled in a national free speech controversy, I spoke with Blaine Cook, Twitters former lead developer, who worked at the company from 2006, during its founding, through 2008. During the course of our conversation, which has been edited and condensed for clarity, we discussed Twitters founding principles, the importance of moderating online communities, and Cooks take on the companys latest move.

Chloe Hadavas: When Twitter was just getting off the ground, how did you guys think about speech on the platform? Was the idea of free speech central to Twitters founding?

Blaine Cook: Yeah, I mean, there were different communities within the company, even though it was obviously quite small. Evan [Williams], and to a lesser extent Jack [Dorsey], came from the tech blogger world and had that sort of background. I had done a bunch of activist work and had worked on tools like TxtMob in the years before. We really looked at Twitter and the tools that we were building as new media platforms that enabled voices of people that wouldnt have had representation up until that point. So the idea was that there was the established corporate media and that the internet presented the opportunity to have different venues that werent controlled by the establishment, as it were.

Were you always so optimistic about it? I mean, could you have foreseen the ways in which an open platform might eventually be weaponized?

I think its complicated because in many ways we were hoping that it would be weaponizednot by Trump, but by progressive forces. And I think we do see quite a lot of that. You know, its interesting watching the Minneapolis protests and the conversations that are happening around that in parallel with Trump having a hissy fit. The Minneapolis conversations wouldnt have been possible, either, without Twitter. So I think it has played out the way that we kind of expected.

What about the idea of the platform being the free speech wing of the free speech party, as Twitter executives called it in the early 2010s? Was that a part of Twitters identity in the mid-2000s?

Theres a lot of nuance there thats important. I think thats true to a point, but the framing of the free speech wing of the free speech party is something that came laterfrankly, after I left, during some of the early interactions around harassment and the content moderation questions that came up in 2008. Ariel Waldman was one of the very early people who experienced harassment on Twitter [in May 2008], and Twitter declined to get involved, which was after I left. And I think thats maybe where a lot of these libertarian-leaning free speech party ideas came from.

From my perspective, that framing isnt far off from what we were trying to do in terms of opening up communication spaces and whatnot. But I personally have always felt like moderation, community management, and having responsibility over culture is actually really important, and I think thats one of the reasons that I ended up leaving Twitter so earlyit was just a fundamental difference about the approach to those things. I think so much emphasis was placed on scaling and going after the celebrity crew and all that kind of stuff in the early days that they kind of lost sight of what it meant to run and have a community. In the really early days, there werent too many social networks around, and we definitely looked to communities like Flickr, which had a strong position on moderation and on community guidelines. For me, that was always really important.

Do you think that Twitters policies have changed drastically since you left over a decade ago? Especially this year, not even just with Trumps latest feud but also with coronavirus misinformation and the 2020 presidential campaign?

I think its stayed the same more than it should have. They should have been a lot more proactive, especially with the scale and the resources that they have. I would have loved to see a lot more effort placed into figuring out community questions. Theyve been doing experimentssome hopefulbut the recent reply feature [where a user can limit replies], they launched by trolling people, and that was just really disappointing. [Cook is referring to these tweets from the @Twitter and @Twittercomms accounts.] It feels like a lot of that stuff just isnt as fleshed out as it should be.

I think it comes down to that they basically dont have any competition. We need different communities with different editorial and community standards. So if Trump wants to go and have a conspiracy theory Twitter, like a separate MAGA-land, that would be fine.* The rest of us could largely ignore it, and itd basically wither and die. But because Trumps tweets are mixed in with all of this other important conversation, its hard to reconcile those things.

What was your immediate reaction to Twitters decision to slap those warning labels on Trumps tweets? Did you see that as a landmark move for the company, or did you think that perhaps its not as important as onlookers are making it out to be?

Its a good step, but it doesnt go far enough. Twitter is a private company and has every right to kill his account. That doesnt limit his free speech at all. Hes the president of the United Stateshes got whatever platform he wants. I would like to actually see quite a lot more strong action. With the Joe Scarborough conspiracy, if it was any other person than Trump making threats and creating a dangerous situation for a private person, their account would be disabled right away. So I guess Id like to see more of that, and more fact-checking in general, and moderation.

I really strongly believe that the culture of the community is set by its acceptable parameters. So if you have a community where abusive behavior is acceptable, then people will go there to abuse other people. And if you moderate and you actually have some community standards, then they wont. I think thats true in all parts of life, and because Twitter is such an important public space, it would be nice if we had stronger community standards that reflect the sort of society that we actually want to live innot just some sort of free-but-harmful-speech-protecting space.

For more on Twitters fact-checking of Trump, listen to What Next: TBD.

Correction, May 29, 2020: This article originally misquoted Blaine Cook as saying that an alternative platform to Twitter could be a mega-land. He said it could be a MAGA-land.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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What Twitter Should Have Done Differently From the Very Beginning - Slate