The Internet and Free Speech Calculus
The vast majority of countries around the globe have laws that prohibit hate speech. And even if the anti-Islamic film "Innocence of Muslims," which has sparked protests throughout the Arab world, would not have violated some hate-speech laws, most governments would still find ways to suppress the speech of those protesters who found the film so offensive. Compared with almost every country in the world, the United States is an outlier when it comes to free expression.
The United States is an outlier in many ways, particularly when it comes to the elevation of individual rights over the government's desire for control. Some of us see this as a virtue, and one already in jeopardy in a flat world and a nation in which the government has become empowered by fearful citizens to assert itself in the face of threats to our safety.
The internet raises the stakes of communication by allowing any fool to broadcast their foolish ideas to every other fool around the world. The greatest moderating factor is volume. There is just too much online that no one can notice it all. Most of the content fades immediately into obscurity, whether good or bad. At best, it captures a small audience. Once in a while, something goes viral and joins that tiny fraction of things on the internet anyone cares about.
Yet, it's the tiniest bit that drives Feldman to consider whether a fundamental right need revising.
Two years ago, Supreme Court Justice Stephen Breyer shocked free-speech lovers when, during an interview about a book he had just published, he suggested in passing that our free-speech laws might have to be changed in the era of instant global communications. Breyer's prophetic comments were inspired by anger in the Muslim world about possible Quran burning in the United States.
Today, in the wake of attacks on U.S. embassies and the killing of a U.S. ambassador and three other Americans in Libya, Breyer's offhand observations need to be taken seriously.
Correctly noting that this video wouldn't invoke the "fighting words" exception to the First Amendment, Feldman nonetheless ponders whether it would have been different had it been delivered in person rather than online.
In principle, it should not be more difficult to predict the likelihood that an audience abroad will respond violently to a given statement than it should be to predict that a crowd gathered in front of the speaker will respond violently. At present, we rely on the informed judgment of law-enforcement officers who are on the scene, watching both the speaker and the audience that is on the verge of exploding. It seems possible that law-enforcement officers who were sufficiently well-informed about conditions elsewhere could make a similar judgment about a YouTube video.
This sort of post-hoc reasoning, scrutinizing a video that meant nothing to anyone for the months it was online until, for whatever reason, it suddenly was blamed for lighting a fuse, combined with the blind acceptance of the "informed judgment of law enforcement officers," makes Feldman's ideas sound fairly harmless. Indeed, Feldman acknowledges that limiting speech merely because it will offend someone somewhere is disfavored.
Under these standards, speech that offends Muslims abroad — no matter how nasty and provocative — would be protected by the Constitution. Not only would violence be distant and of uncertain probability. It would also be directed against the speaker. Banning speech because of the danger of such a reaction would create what is sometimes called a "heckler's veto," highly disfavored by our law.
Yet, if it should erupt into violence, isn't the reason enough to add the additional layer of moderation? What's wrong with our trusted authorities scouring the internet in search of the next inflammatory video or statement to shut down speech has the potential to incite craziness somewhere in the world? Isn't it better to stop the hate before it manifests in violence and death? There is nothing about hate speech that makes it worth the death of good people, or even worth the risk.
Feldman notes that free speech is already subject to increasing limitation, as reflected in the Supreme Court's holding in Holder v. Humanitarian Law Project.
The court said that the law could prohibit speakers from advising terrorist groups on how to advocate peacefully in lieu of violence. To reach this conclusion, the Supreme Court simply sidestepped the traditional speech-protected rules for incitement. The implication was that speech supporting terrorism deserved its own legal regime.
So why not speech on the internet? Why not hate speech calculated to offend? Why not speech that the "informed judgment of law enforcement officers" suggests has the potential to incite people elsewhere in the world, but right next door on the internet, to violence?
Is free speech rhetoric "dated" in light of the "emerging realities of transnational responses"?
The fact that speech, the embodiment of ideas, can move a person to act is a testament to its power. As some persist in achieving their vision of Utopia, where no one is every harmed either physically or emotionally, and where we cede ever-increasing authority to the government to regulate our world to achieve perfection, it's possible that we can prevent the occasional incitement to violence.
And this is how the camel gets his nose under the tent.
The internet doesn't change the free speech calculus. Fear does. Of the billions of bits of content that appear on the internet, a few will offend. A few will offend many. And a few will illuminate. Once we hand over the power to the government to decide which is which, and which deserves to disappear under the "informed judgement" of law enforcement, the fundamental purpose of our American notion of free speech is lost.
I can appreciate that Noah Feldman doesn't want anyone else harmed as a result of hateful internet content. I don't either. But giving up free speech isn't the solution. Even if we are the outlier, do we really want to limit our freedom to the lowest common denominator? And if fundamental freedom has to take a hit when speech goes viral, isn't it worth the price? People die for far less.