Why Are Reporters So Opposed to "Free Speech"?

Invoking the First Amendment in content moderation debates is just good marketing for lax content moderation

Why are reporters so opposed to “free speech”?

This is a question that I get asked by Silicon Valley sources.

The media’s skepticism of Elon Musk’s free speech-inspired Twitter acquisition has further highlighted this apparent contradiction.

Venture capitalist Marc Andreessen captured the idea that the press has abandoned free speech with a tweet this week:

Marc Andreessen @pmarca

Entire swaths of the laptop class, including virtually the entire mainstream press, have made a 180-degree reversal on free speech, within a decade, without any memory at all that they once held the opposite view. With perfect synchronization, as one.

So why are reporters apparently opposed to “free speech”?

I can’t speak for all journalists, but I think I have the answer:

Because reporters are easily baited into adopting unfavorable argument frames.

In this case, the anti-moderation camp has positioned themselves as defenders of free speech and the First Amendment: See investor David Sack’s argument about reforming Section 230 to align with the First Amendment, Coinbase’s content moderation policies, and Substack’s policy.

Elon Musk @elonmusk

By “free speech”, I simply mean that which matches the law. I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people.

There’s a self-sabotaging temptation among the media class to just accept the “free speech” framing and argue the issue on the merits, inevitably confusing a lot of people who aren’t following the debate closely and leaving ourselves vulnerable to bad faith caricatures of our position.

This is the “defund the police” of the content moderation wars.

Rolling your eyes at “free speech” in the context of content moderation conveys antipathy for facetious arguments about unmoderated online speech. But it fails to reassure people that the eye-roller still believes in shared universal values around open debate on the internet. Just as most people who said “defund the police” thought it was obvious that they still cared about safety and security, people who are willing to embrace an anti-“free speech” stance feel that it’s obvious they still believe in free substantive public debate.

So to be absolutely clear, I am 100% behind both the legal protections afforded by the First Amendment and the related American cultural value of free speech — I just don’t think it’s a particularly helpful framework when talking about how to moderate private social media platforms.

So then what is the actual pro-moderation, anti-“free speech” position?

1. No centralized large-scale social media platform will actually restrict themselves to only banning content that is prohibited by First Amendment legal principles. Whether it’s graphic pornography, violent images, pro-terrorist content, harassment, racist content, or spam — social media companies inevitably decide to ban (or demote) all sorts of content that the U.S. government is legally required to allow on private property. Let me remind you that it is legal to publish pro-Nazi and pro-KKK content in the United States — but most popular platforms don’t want anti-Semitic or racist content on their platforms.

2. Given that platforms are inevitably going to police speech far beyond what is prohibited by the First Amendment, these platforms are setting their own content moderation policies based on their own values.

3. Invoking the First Amendment is a ploy to cast lax moderation policies in a more favorable light by obscuring the role a company plays in deciding what content to host and to promote on its platform.

That’s a complete argument but I will add a few more related points.

• There’s nothing in the First Amendment that dictates how social media companies should distribute speech to their users. Even totally chronological feeds are a subjective choice on the part of social media companies — and social media companies have largely abandoned non-algorithmic feeds, only adding to the subjectivity around what speech they decide to promote to users. Personally, I don’t really care what people can post on their individual Facebook wall or Twitter feed. I care what these companies are helping to go viral.

• Many advertisers and users — even many conservative ones — have an expressed preference for some form of moderation. For instance, Reddit communities are so appealing because moderators spend a lot of time curating what type of content is allowed in their communities. So just for pure strategic self-interest, companies feel compelled to keep their walled gardens tidy.

• Arguments about First Amendment-based moderation policies largely ignore harassment. If users feel that they’re so flooded with hateful replies that they don’t want to engage on a social media platform, then is that really promoting the core values of “free speech”? Isn’t the high-minded point of the First Amendment to protect thoughtful debate?

• No matter what moderation policies social media companies implement for feeds, it’s easier than ever in the United States to spread ideas and information. We have messaging apps, emails, ubiquitous cell phones, private groups, etc. And we have competing social networks. I don’t agree with anti-moderation forces that think we’re destined for a slippery slope that has censorship permeating all levels of our online speech. Like Ben Thompson has argued, it makes sense that there would be a hierarchy of moderation. Private messaging groups should be largely free from interference, while trending topics and other viral information multipliers should be thoughtfully moderated.

• One big area where conservatives seem to want to avoid speech restrictions is when it comes to discussions about trans people. Supporters of loose moderation policies on trans issues are certainly on much safer ground arguing for moderation policies rooted in the First Amendment than making an explicit case that they want to be allowed to misgender trans people.

• Andreessen, who has been one of the most vocal proponents of the First Amendment view of content moderation, fleshed out his position some this week. Notably, he drew the connection between his support for a framework based on the First Amendment and that legal principle’s lack of prohibitions on hate speech or misinformation:

  Marc Andreessen @pmarca

  And it is within that context that I find it so striking that, while First Amendment case law includes a significant number of abridgements of absolute free speech, it contains no abridgments of so-called "misinformation" or "hate speech". I don't think this is accidental.

  Even Sacks, when outlining how he might translate First Amendment principles to content moderation, was open to excluding hate speech. Sacks wrote, “Certainly, all racist, misogynist, homophobic, and other slurs could be folded into this category and prohibited by social media sites.”

Psychologically/sociologically, why are reporters so incensed about the content moderation issue and generally aligned with each other?

I do think there’s some genuine confusion as to why reporters — a class of people who rely on the First Amendment to do their jobs — are so aligned with the pro-moderation forces. Here’s what I think the answer is:

• The practice of newsgathering is deeply rooted in making judgments about what is accurate and appropriate to publish. Even the amount of play a story receives is hotly contested. Newsrooms debate passionately about what stories deserve the highest billing on their homepage. But social media companies have just been distributing whatever superficially appeals to readers. The idea that social media sites take so little responsibility for the quality of content that’s being pushed to millions or billions of people is endlessly frustrating to journalists who spend far more time worrying about what they publish to their much smaller audiences.

• Reporters, especially ones on the disinformation beat, have been drowning in the crocodile tears of bad faith internet trolls purporting to be interested in their speech rights for years. Whether it’s the birther movement, gamergate, pizzagate, QAnon, antivaxxers, or the attempted theft of the election, there has been an endless stream of bad faith claims that have derailed thoughtful debate in the United States. More speech does not seem to be the answer to something like QAnon because it is only drawing attention to the conspiracy, attracting new adherents.

Is there anywhere you agree with Musk and the “free speech” crowd?

• As I’ve said on Dead Cat, I’m genuinely excited by the idea of Musk running Twitter (though there’s still some outside chance it doesn’t happen). The platform certainly needs fresh ideas. I remain hopeful that his thinking on content moderation will develop if he actually spends time on the problem. (His tweets about Twitter so far have been worrying.) I’d love for Twitter to be more fun. There’s a part of me that would be happy to see conservatives suddenly culpable for Twitter’s many shortcomings. “Thanks, Elon” can be this decade’s version of “Thanks, Obama.”

• Certainly, I agree that it would be great if Musk brought some more transparency to Twitter’s moderation policies.

• There are two areas where conservatives have challenged Twitter’s moderation decisions where I think they have a compelling argument: (1) Twitter’s censorship of the Hunter Biden’s laptop story in the New York Post and (2) the crackdown early in the pandemic on the lab leak theory. But in both case I think they were good faith decisions where thoughtful people could come to different conclusions. Just stripping away any sort of oversight isn’t the answer to the fact that life is full of hard problems.