📚 Fearless Speech

I recently finished reading Fearless Speech: Breaking Free from the First Amendment by Mary Anne Franks. There’s a lot in this book. The central thesis is the author reframing the concept of ‘free speech’ into:

Fearless speech, where a person speaking ’truth to power’, despite risks to themselves from doing so, and

Reckless speech, where the person speaking puts other people in danger, typically those with less power than themselves.

Franks looks at two key texts that are often referred to in today’s world by people who claim to be ‘defending free speech’. The first and most famous example is the First Amendment to the United States Constitution. Here’s the full text:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment restricts what the Government can do to curtail freedom of speech. It has absolutely nothing to do with public or private companies, and doesn’t dictate what they can and cannot do. When we look at social media platforms, for example, there is no obligation under the First Amendment to allow their users to post anything they like without moderation in order to preserve their ‘free speech rights’.

In fact, the law says that these platforms can moderate their content. The second key text referred to in the book is Section 230 of the Communications Act of 1934, enacted as part of the Communications Decency Act of 1996. People who have heard of ‘Section 230’ may generally be aware that it stops platforms from being treated as publishers. Platforms are not responsible for anything horrible that their users post. This is in contrast to traditional media. Newspaper owners, for example, are liable for the content on their pages. However, Section 230 also includes a ‘Good Samaritan clause’. In the same way that someone acting in good faith to try to resuscitate a stranger who has had a suspected cardiac arrest is not liable if they break that person’s rib when they administer CPR, platforms are immune from liability if they act in good faith by removing harmful or obscene content from their platform. The relevant text is here:

47 U.S. Code § 230 – Protection for private blocking and screening of offensive material

…

(b) Policy
It is the policy of the United States—
…
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
…

So, not only do corporations not have an obligation to let people say whatever they like on their platforms, there is even legal protection for them to remove ‘bad’ content. Hosting hate speech is therefore a choice, not an obligation under some notion of ‘free speech’.

The book was published in October 2024, prior to the most recent Presidential election. Events from Trump’s first term as president are referred to throughout the book, and I suspect that there could easily be a bumper second edition just based on what has happened in the six months since publication.

In January, Mark Zuckerberg announced that Meta will scale back their content moderation on Facebook and Instagram, leaving much of the work of fact-checking and flagging objectionable content to their users. It’s very convenient and beneficial for Meta to have more ‘free speech’ and less moderation on their platform as it drives engagement. From the book:

Doing nothing is always cheaper than helping, and harmful content can be very profitable. As long as tech platforms are allowed to enjoy the benefits of doing business without any of the burdens, they will have little incentive to take care and every incentive to be reckless in their pursuit of profit.
…
It must first be noted that whether an online platform leaves content up or takes it down, it makes a choice—there is no neutral position. Platforms already make choices about whether to leave content up or take it down, and they make that choice primarily based on their corporate bottom line.

Trump’s election victory, and the administration’s rhetoric on ‘free speech’, has given Zuckerberg the cover he needs to dial down the moderation and dial up the angry exchanges on his platforms. More eyeballs, more clicks, more monetisation, all under the cover of being a champion of free speech. But the action of a private company has nothing to do with the First Amendment as defined in the constitution. Franks calls it ‘consumerist constitutionalism’:

This consumerist constitutionalism—the conflation of a commercial product with a constitutional right—serves corporate interests in multiple ways. First, given the deep emotional attachment Americans have to their constitutional rights, convincing them that they need a particular product in order to exercise those rights is sure to be a lucrative enterprise. This is especially true if the public believes that they are always on the verge of losing those rights and that the only way to avert this crisis is to consume more of the product. Consumerist constitutionalism leads individuals to not only acquire but also to identify with certain products and services, creating an endowment effect that makes any interference with access feel like an existential threat.

Not all ‘free speech’ is equal in the eyes of the Trump administration. Peaceful protests on university campuses about the war in Gaza are a form of free speech that are clearly protected in the First Amendment. Government intervention to shut them down is the opposite. Members and supporters of the administration preach free speech but this is blatant hypocrisy, as this recent Jon Stewart piece on The Daily Show illustrates. Watch from 3m11s in:

The book’s distinction between ‘fearless speech’ and ‘reckless speech’ is incredibly insightful, and has stayed with me as a way of looking at the actions of people speaking out. Every year, on International Women’s Day (IWD), I look forward to reading Sharon O’Dea’s comments on LinkedIn. She comments on posts from well-known organisations where they celebrate IWD in some fashion, calling them out with data and facts about how they are really doing. Sharon has a form where people can submit stories about their companies anonymously so that she can follow up with research ahead of their IWD posts.

Here she is responding to Foxtons, Metro Bank, and Rio Tinto. This year, I found myself thinking about these comments for longer than usual. Shamefully, perhaps, one of my first thoughts when I read them was something along the lines of, “Doesn’t Sharon sell her freelance services to companies like these?” It makes what she’s doing even more poignant. This is fearless speech. I’m not as brave as she is.

I’ve barely scratched the surface in this post of what is covered by this book. I’m going to be thinking about it for a very long time.