Due Process and Free Speech – Part 3

Challenges to free speech under American slavery, Hitler’s Germany, and social media.

History is replete with examples of historical periods in which the more outlandish the prevailing opinion, the more draconian are restrictions on speech.  For example, during the American era of slavery, as Jacob Mchangama writes in his book Free Speech: A History from Socrates to Social Media:

Southern legislators, congressmen, and mobs enforced a “Slaver’s Veto,” adopting some of the most draconian laws against free speech in American history … In 1835, abolitionists began an organized campaign of targeting Southerners -- including women and children -- with antislavery literature in the mail. In response, more Southern states followed Georgia and adopted or doubled down on existing laws banning “incendiary” literature, with punishments including flogging and even death. The rank hypocrisy of such laws was striking. In 1776, Virginia had approved the first and most famous state declaration of rights affirming that press freedom was restrained only by “despotic governments.” Virginia had also led the fight against the Sedition Act. But a sweeping Virginia law from 1836 criminalized publications intent on “persuading persons of colour… to rebel, or denying the right of masters to property in their slaves, and inculcating the duty of resistance to such right.”

As even former slave Frederick Douglass argued, people should be free to discuss anything unhindered, saying in a speech called “A Plea for Free Speech in Boston” that

free speech [was] “the dread of tyrants,” without which “liberty is meaningless.” All oppressive systems, he argued, were built on the denial of the right to think and speak freely, and slavery was no exception: “Slavery cannot tolerate free speech. Five years of its exercise would banish the auction block and break every chain in the South.” Free speech served as a “moral renovator,” but the full potential of this right rested on both the right to speak and to listen. Accordingly, “To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.”

The Republican Party was the first political party whose platform opposed slavery, and that opposition to slavery was closely entwined with support for free speech, and its members suffered under the same sort of “cancel culture” Republicans (and some others) on college campuses face today:

Free speech on the subject of slavery became a key issue for the new Republican Party, which listed opposition to slavery as one of its central platforms when founded in 1854. In the 1856 presidential election, Republicans campaigned for their nominee, John C. Frémont, with the slogan “Free Speech, Free Press, Free Men, Free Labor, Free Territory, and Frémont.” The Republican antislavery platform was furiously opposed by a Slaver’s Veto. In 1856, an editorial in the North Carolina Standard responded to rumors of Frémont supporters in the state by declaring that “the expression of black Republican opinions in our midst, is incompatible with our honor and safety as a people.” An anonymous reply to the editorial claimed that a professor at the University of North Carolina was a Frémont supporter. Benjamin Hedrick, a professor of chemistry at the university, penned his own response to the editor, in which he openly declared that he was the Frémont supporter in question and explained in detail the reasons for his political opinions. The reaction was fast and furious. Hendrick was condemned by the school’s students, faculty, and trustees. He was even burned in effigy on campus. Local newspapers thundered against him. Under intense pressure, the university decided to terminate Hedrick’s employment. The Standard wrote triumphantly: “Our object was to rid the University and the State of an avowed Fremont man; and we have succeeded … No man who is avowedly for John C. Fremont for President, ought to be allowed to breathe the air or to tread the soil of North Carolina.”

Mchangama goes on to describe how language itself can be reduced to minimalist slogans, and any deviations from those rote mantras used as evidence of “bad thoughts”:

The German-Jewish linguist Victor Klemperer survived the Holocaust and famously observed that the “the most powerful Hitlerian propaganda tool” was not speeches, posters, or flags. It was the gradual erosion of the German language: “Nazism permeated the flesh and blood of the people through single words, idioms and sentence structures which were imposed on them in a million repetitions and taken on board mechanically and unconsciously.… Words can be like tiny doses of arsenic: they are swallowed unnoticed, appear to have no effect, and then after a little time the toxic reaction sets in after all.”

(Today, such “single words, idioms and sentence structures” which are imposed “in a million repetitions and taken on board mechanically and unconsciously” might include the modern catchphrase “equity,” which is repeated endlessly and rarely defined, because when it is defined its racialist core is exposed.  Such catchphrases are particularly attractive to younger people, who might not have experience enough to appreciate wider context.  As Mchangama writes, “Studies have shown that Nazi propaganda was most effective on young Germans -- more impressionable, with little experience of living in a free society and subject to institutional indoctrination in schools and Hitler Youth organizations -- and in districts where anti-Semitism was already prevalent before the Nazi takeover.”)

As Mchangama writes, today, what could otherwise be a torrential flow of speech on the internet is bottlenecked by private social media companies who look over their shoulder at government regulators:

Potentially, [online] centralized platforms could even end up serving as the private enforcers of government censorship, entirely inverting the initial promise of egalitarian and unmediated free speech … Facebook and Twitter originally displayed a strong civil-libertarian impulse inspired by First Amendment ideals. As late as 2012, Twitter only half-jokingly described itself as the “free speech wing of the free speech party.” But as the scrutiny grew more intense and the calls for increasing content removal and regulation grew ever louder, the platforms changed their tunes and started emphasizing the values of “safety” and preventing “harm.” In a 2017 hearing before a hostile British Parliament, a Twitter VP waved the white flag and announced that the platform was ditching its “John Stuart Mill-style philosophy.” And in 2019, Facebook’s Mark Zuckerberg called for stronger regulation of the internet …

Editorial discretion has been turned over to automated systems:

More than 97 percent of the purged hate speech in Q4 of 2020 was proactively identified by AI [artificial intelligence computer programs]. Twitter and YouTube also removed record levels of content in 2019 and 2020, respectively. No government in history has ever been able to exert such extensive control over what is being said, read, and shared by so many people across the world and in real time …

And in many ways, the government is feeding these private companies their company lines on speech:

[G]iven the enormous pressure and legal sanctions applied by governments, the idea that the current state of content moderation relies entirely on voluntary principles is more than strained. And as US tech firms adopt increasingly restrictive terms of service to comply with European laws, global social media users are being subjected to moderation without representation. Perhaps more consequential is the potential habituation of social media users to community standards that are significantly less speech protective than what follows under constitutional and human rights law, with the danger that the former will ultimately influence interpretation of the latter rather than the other way around. Regardless of whether one thinks that social media platforms remove too much or too little content, the lack of transparency about the moderation and algorithmic distribution of content is deeply problematic. As noted by the Centre for Democracy and Technology, automated content moderation is bad at understanding context and nuance, like humor or racist language employed to expose and document racism. Inherently vague and subjective definitions of hate speech and offense also pose a challenge to automated content moderation. These shortcomings may result in extensive collateral damage to permissible speech.

Mchangama adds that

Twitter has defined its ban on “hateful conduct” to include “misgendering” and has banned users for statements such as, “only females get cervical cancer.”  Reddit banned a subgroup of feminists for “hate speech” because of their belief that a person’s biological sex is fixed.

(Interestingly, John V. Orth, in his book “Due Process of Law: A Brief History,” notes that “In the first volume of his famous Commentaries on the Laws of England (1765), Blackstone listed ten rules for statutory construction [including] ‘acts of parliament that are impossible to be performed are of no validity.’”  Orth adds in a footnote that “The classic example of an “impossible” statute was one that purported to “make a woman a man, and a man a woman.”)

Social media companies have squelched significant, true news stories right before presidential elections:

In October 2020, Twitter blocked all users -- including reporters -- from sharing or discussing a story from the New York Post that exposed incriminating emails allegedly originating from a laptop belonging to presidential candidate Joe Biden’s son. Twitter even blocked the account of the New York Post, the fifth-largest and oldest continually published newspaper in the US, only to subsequently admit to having made a mistake, thus limiting access to potentially relevant information in the run-up to a presidential election.

This, when the United States Supreme Court held in 1943 in West Virginia State Bd. Of Educ. v. Barnette that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

As University of Chicago law professor Philip Hamburger has written:

Amid growing revelations about government involvement in social-media censorship, it’s no longer enough to talk simply about tech censorship. The problem should be understood as gov-tech censorship. The Biden White House has threatened tech companies and federal agencies have pressed them to censor disfavored opinions and users. So it’s time to ask about accountability … Cooperation between government officials and private parties to suppress speech could be considered a criminal conspiracy to violate civil rights.

Government interference with private means of communication recalls the notorious Stamp Act that helped spur the American Revolution by imposing a tax on many printed materials, but at least in that case the tax on speech applied across the board, to all speech on any subject, and didn’t target any particular topics for adverse treatment.  As Mchangama writes:

In an article printed in the Boston Gazette, John Adams attacked the Stamp Act as a calculated attack on the colonists’ freedom of speech and information. It seemed “very manifest from the [Stamp Act] itself, that a design is form’d to strip us in a great measure of the means of knowledge, by loading the Press, the Colleges, and even an Almanack and a News-Paper, with restraints and duties.”

This concludes this series of essays on due process and free speech.

Links to all essays in this series: Part 1; Part 2; Part 3.