The Problem with Free Speech is Us

Bettina Krause March/April 2024

There’s more than enough hypocrisy to go around whenever questions of free speech come before the U.S. Supreme Court—and I include myself in that indictment. When the facts of a case involve speech that fits with my own religious or political convictions, my commitment to First Amendment free speech principles is unwavering. But opinions or viewpoints I don’t particularly like? Legal arguments supporting government interference can be strangely persuasive.

Last year, many within the religious freedom advocacy community celebrated the Court’s ruling in favor of a Christian website designer. In 303 Creative v. Elenis, the Court said that Colorado can’t compel Lorie Smith to speak in ways that violate her religious convictions by requiring her to design a website for a same-sex marriage.

Ironically, this year some of those who celebrated 303 Creative will be rooting for the Court to swing the other way on the question of compelled speech. The attorneys general of Florida and Texas say that social media algorithms discriminate against conservative political viewpoints. They’re unapologetically asking the Court to uphold state laws compelling social media companies to carry messages that conflict with the companies’ own editorial or content moderation policies.

Then, in yet another free speech tech case currently before the Court, the Biden administration is defending its behind-the-scenes attempts to have social media platforms remove some of the COVID disinformation that flooded our social media feeds during the pandemic. Depending on the lens through which you view this case, Biden officials were either engaged in constitutionally allowed “persuasion” or impermissible “coercion.”

These are all complex, legally nuanced cases. But nevertheless, I suspect how each of us reacts to these cases reflects a larger problem: the sneaking belief we all have that “my speech is generally more worthy of constitutional protection than your speech.”

Sliding Scale

I remember the moment when the idea of free speech became less of a legal proposition for me and something far more visceral. At the time, I was advocating for a church member in Pakistan who was serving a life sentence for the crime of blasphemy. I googled “conditions in maximum security prison Pakistan” and landed on a report from an international watchdog agency that painted a horrifying portrait of overcrowding, filth, vermin, inadequate nutrition, and lack of access to medical care. The church member in question was just a young man—27 years old when he was arrested after being falsely accused of sending a text message blaspheming Islam’s prophet.

Within the international community, protection of free speech exists on a sliding scale. Occupying positions at the bottom of the scale are countries such as China, Iran, Saudi Arabia, and North Korea, which ruthlessly suppress dissenting voices. Then, toward the other end, there’s western Europe and elsewhere with strong liberal legal traditions protecting free speech. But these protections sometimes come with caveats, especially when it comes to limiting hate speech, a notoriously difficult thing to define. A member of parliament in Finland, for instance, is currently facing another round of hate speech prosecution for voicing her religious views about marriage. Or in Denmark, Muslim outrage over instances of Quran burning has led parliament to ban the vague offense of “improperly treating” religious texts in public.

And then there’s America, with its uniquely broad approach to free speech rights. It’s an approach that says: Let Nazis march through a small Illinois town, as the Court held in a 1977 ruling. Or, let the KKK in Ohio hold a public rally, as the Court held in 1969. But at the same time, give the same unstinting speech protection to those arguing against such corrosive ideologies.

Supreme Court Justice Louis Brandeis summed up this approach best in 1927 when he wrote, when faced with bad speech, “the remedy to be applied is more speech.” (As the first Jew appointed to the Court in an era of rampant antisemitism, Justice Brandeis was no stranger to “bad speech.”)

But in our social media age, can we still assume that good speech will ultimately prevail over bad?

Goodbye Reason

For a founding father, James Madison had a remarkably clear understanding of how social media works. In 1788 he wrote: “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

What Madison couldn’t have foreseen, however, is the twist that makes social media uniquely subversive to reasoned discussion; and that’s the technical brilliance with which it exploits the “passion” of a mob for profit.

The faceless Facebook algorithm doesn’t care whether the post you just made is factually correct or incorrect; thoughtfully argued or a word salad of discontent; whether you’re speaking in good faith or intentionally misleading. Instead, the value of your online speech is measured largely by the emotion it generates—the number of likes, comments, or shares it collects. If your post produces enough emotion, the algorithm embraces and boosts it for more people to see.

In the social media context, “more speech” isn’t necessarily a great remedy for bad speech.

Moreover, as Texas and Florida alleged in their recent arguments before the Supreme Court, social media algorithms do seem to favor some viewpoints over others. And it’s not just political viewpoints. I corresponded recently with someone who started a Christian music ministry on Facebook to bring people together during the COVID pandemic. Last year, her page was suspended without warning or explanation. And I’ve heard many similar stories from those who express religious views on social media.

What Not to Do

There’s a long road ahead as courts and legislatures grapple with the challenges social media presents and consider regulatory approaches. But reaching for simple solutions, involving direct government involvement in the editorial policies of social media companies, isn’t the answer.

Yes, our public discourse is weaker for the type of speech social media fosters. Yes, the largely unaccountable power that social media wields over vast swathes of our nation’s communication landscape isn’t healthy. But as with everything, there’s nuance. Not all contributions of social media have been destructive to free speech.

I spoke a few weeks ago with a lawyer from Nigeria representing a young musician accused of blasphemy against Islam (whose story will appear in the next issue of Liberty). I asked him if there’s anything individuals can do to help as he fights this case. “Pray for us,” he said. “But also tweet. It was my tweets about this case that first attracted international attention, so please, use your voice on social media. Do anything you can to raise awareness about blasphemy laws and remind the Nigerian government of its responsibilities under international law.”

Persuasive arguments for chipping away at America’s historically strong free speech protection will continue to come from both the political left and right. To acquiesce, though, would be a mistake. It would leave us all more vulnerable to our shared human assumption that “my speech is more worthy of protection than yours.”

Article Author: Bettina Krause

Bettina Krause is the editor of Liberty magazine.