The Cost of Free Speech

Michael D. Peabody July/August 2021

Illustration by Jon Krause

It was not too long ago that Americans were wholeheartedly defined by a dedication to concepts of freedom of speech and the equal availability of knowledge—and many still recoil at the idea that somebody else should tell them what to think and might control what they can say to each other.

The origins of this attitude are not hard to find. “The priesthood of all believers” was a bedrock principle of the sixteenth-century Protestant Reformation—all Christians were equal before God, and clergy no longer had a monopoly on the understanding and exposition of sacred writ.

Throughout human history, in most parts of the world, freedom of speech has been an anomaly. During the Middle Ages only the ordained clergy could represent a congregation, interpret Scripture, or administer sacraments. It took a radical “reformation” of thinking to change that. If clergy had no greater standing before God than anybody else, then all could serve equally, and all could approach God in prayer directly. This concept had implications far beyond the spiritual world: setting in motion changes to encompass politics, science, and even economics.

Today the distribution of Bibles is nearly ubiquitous, with Bibles available online if not in the physical space. But in those pre-Reformation days the printing of Bibles was strictly illegal, and even in England to have a Bible without the proper license could even lead to the death penalty. This was because not only was the Bible clearly a spiritual document, but it could be used to question the power of the church to rule the state. Individuals were not trusted to interpret Scripture for themselves—and this was not only to protect the people, but more likely to protect the hierarchy.

John Wycliffe, who translated the Latin Vulgate Bible into English and called the Catholic Church’s hierarchy into question, was blamed for the Peasants’ Revolt of 1381, and his writings were banned. Thirty years after he died of a stroke in 1384, the Council of Constance declared him a heretic and ordered his body exhumed and burned and the ashes thrown into a nearby river. Dangerous man indeed!

William Tyndale, who translated the Bible into English in the early 1520s, was also seen as a threat to the hierarchy: his writings are said to have influenced King Henry VIII to separate the Church of England from the Roman Catholic Church. Of course, Tyndale, being a man of many words, also published a book against Henry’s annulment of his marriage. Sandwiched between the ire of the Catholic Church and Henry VIII, Tyndale fled to Brussels, where he was arrested. In 1536 he was convicted of heresy and executed by strangulation, and his body was burned at the stake.

The hierarchical control of information was not just with religion or politics. In 1633 the Inquisition came to scientist and astronomer Galileo, who dared question the church’s teachings that the earth was the center of the solar system. He was found “vehemently suspect of heresy” and sentenced to house arrest for the rest of his life, and his books were banned.

While Europe maintained vestiges of the Divine Right of Kings and the primacy of particular clergy, the United States began with an open platform that upheld, however imperfectly, the ideas of the free flow of information, religious independence, and economic self-determination. Vestiges of Old World hierarchies remained in the slavery that characterized most of the first century of the nation and the racial disparities that existed on the books and in practice for at least the century after the Civil War. But the United States at the federal level prided itself on its dedication to principles of free speech and self-determination. It did not bestow honorific titles based on some kind of social ranking or develop permanent and imposed caste systems.

For most of human history, however, it took great effort to provide information to a wide range of people. Edicts went out at the speed of a man on horseback. With the availability of paper, the news and laws might be posted on a church door. But since few could read, it was the vocal proclamation to assembled subjects or the update from the town crier that informed—and compelled! Books, when they finally became available, had to be printed and published at great cost. Newsletters were mailed, adding handling and postage expense. Until very recently even long-distance phone calls were costly and conversations limited to small groups of people. Distributing a video beyond a few people required substantial funding and distribution skill. The few who broke through the barriers and hosted television shows, wrote books, or served as journalists to magazines and newspapers were generally regarded as “the experts,” and the most the average person could do to contribute to the flow of ideas was to get a “letter to the editor” selected for publication.

But 25 years ago the Internet introduced the concept of the “priesthood of all believers” to every subject imaginable on the Internet. Sure, the media continued to control most print, radio, and television outlets, but as laptop computers and cell phones took over the planet, and social media giants facilitated massive international conversations between thousands of people, it was not long until anybody could become an “expert” complete with publication or video production. Most people reading this are within an arm’s reach of broadcasting a live video to the rest of the world—the only limit being how many viewers they can attract.

Just as the printing press was welcomed as a great innovation until it was used to publish things the ruling elite did not appreciate, the Internet, hailed as the “information superhighway,” has been applauded until recently, as armchair “experts” share their opinions from their kitchen tables.

The Inquisition, which first sought to reason with the wayward theologians centuries ago, turned deadly when troubling speech grew out of control. That’s human nature. In those days the Reformers often had to seek refuge in the recesses of the castles of friendly royals. It is human nature to crack down on speech that challenges the status quo and can be identified as “dangerous” to certain power centers or institutions. In the United States those whose speech is challenged by the elites can find their refuge in the First Amendment of the U.S. Constitution. But what about the vast majority of social media websites where the U.S. Constitution is seemingly more distant?

Free speech online is facing a major crackdown. Arguably, limits on freedom of speech may have more to do with protecting the interests of the party doing the limiting than the protection of others; usually under a pretext of preserving public safety or preventing “misinformation.” Americans are typically repulsed by the idea that some social media “priest” can interpose between them and the pursuit of knowledge and expression of ideas. But the Internet is not confined to the United States—major media companies in the U.S. can be driven by international forces that do not value individual freedoms.

For instance, in order to access lucrative theaters in China, American filmmakers have made major changes to films to ensure that they do not offend government officials. Last June the actor Richard Gere testified before the U.S. Senate to warn about the dangers of allowing China to control the content of films. He said, “The combination of Chinese censorship, coupled with American film studios’ desire to access China’s market, can lead to self-censorship and overlooking social issues that great American films once addressed.¹

In January 2021 thousands of retail investors, many who met on the Reddit website, grouped together to drive up prices of stocks that major hedge funds had shorted. While retail investors collectively made billions of dollars, and prices increased more than 2,000 percent at one point, the hedge funds lost billions as they had to come up with money to cover their market positions. When “experts” on the major financial cable networks complained that the individual investors were working together to drive up the stock price and punish the short positions, the Reddit website hid the WallStreetBets group from public view, sending share prices plummeting—despite the fact that their behavior mimicked the action of the hedge fund brokers, just on a much bigger scale.

In early 2020, when the United States and many other nations essentially “shut down” to “flatten the curve” to prevent the spread of COVID-19 and ensure the availability of medical resources, millions of people had to worry about how they were going to make a living, whether they would die from the virus, and ponder on why it was all happening. Conflicting medical advice and a general sense that the media had a bias against the administration at the time caused many to look to alternative news outlets to find out what was “really happening.”

On April 22 two doctors from a Bakersfield urgent-care facility, Dr. Dan Erickson and Dr. Artin Massihi, held a press conference claiming that COVID-19 was no worse than influenza and that its death rates were low, and that restrictions from work and school were not appropriate. California state senator Richard Pan, himself a pediatrician, complained that the doctors were being “disingenuous” and said, “We have to push back on any media that promotes this information.”²

While the Internet has long been the home to all kinds of health theories, ranging from questionable ideas to outright quackery, COVID-19 ushered in a new level of health conspiracy. In May 2020 a 26-minute video called Plandemic exploded across the Internet: it claimed that a group of people was using the virus and also the vaccine to gain money and power. Within a week Facebook, Twitter, YouTube, and Instagram counted at least 8 million views and people shared it across their networks.

Mainstream media reports labeling Plandemic a “falsehood” and “discredited” increased curiosity about the video; which alarmed many who felt that the video would cause viewers to improperly cast blame for the pandemic on certain individuals; or perhaps take risks with their own health. The video was removed from most Internet networks and is now viewable only on independent websites.

Since then, major social media networks have posted warnings on most posts promoting alternative theories about COVID-19 that either hide posts completely and require a click-through to read them, or imply that the person posting them is spreading untrustworthy information.

Freedom of the Press

As if COVID-19 was not enough, 2020 began with an impeachment proceeding against President Donald Trump involving his request for a leader of a foreign government to help investigate claims against a competing presidential candidate. Much of that discussion involved whether or not Joe Biden’s son Hunter Biden had acted improperly.

In October 2020 the New York Post, a conservative-leaning newspaper founded by Alexander Hamilton in 1801, published an article discussing a laptop purportedly belonging to Hunter Biden. Facebook and Twitter hid the Post story and deleted it whenever users posted it on their own accounts; even though it would not directly affect the health or well-being of those who read the article.

However egregious such an attempt to hide a story from the public may seem, President Trump was hardly a champion of a free press. Soon after launching his 2016 campaign, Trump began threatening to sue media organizations that he felt were unfair to him. He threatened to sue the New York Times for a report on his business dealings, and frequently called cable news companies “fake news” and “the enemy of the people.” The White House famously suspended CNN correspondent Jim Acosta’s press credentials after an alleged altercation between Acosta and a White House intern. The press access was later restored after CNN filed a lawsuit claiming that the suspension violated the network’s constitutional rights. CNN reported that Trump’s campaign had paid more than $200 million in two years to a law firm that sued media companies on his behalf.³ Trump’s history of lawsuits against media critics went back to 1984, when he sued the Chicago Tribune.

In 1964 the Supreme Court ruled in New York Times v. Sullivan that if public official, or person running for public office, is a plaintiff in a defamation lawsuit, he or she must not only prove the basic elements of defamation, which is publication of a false defamatory statement to a third party, but must also prove that the statement was made with “actual malice.” In other words, the defendant would have had to know the statement was false, or recklessly disregarded whether or not it was true.⁴

In the Sullivan case the New York Times had published a full-page advertisement by supporters of Martin Luther King, Jr., that criticized the police in Montgomery, Alabama, for mistreatment of civil rights protestors. There were some factual inconsistencies involving the number of times that King had been arrested during protests, what songs were sung at protests, and whether or not students were expelled from school if they participated. This was part of a pattern of multiple lawsuits in which Southern public officials had sued newspapers for defamation, for a total of about $300 million in outstanding libel actions. The Montgomery police commissioner followed this pattern and sued the New York Times for defamation and prevailed at the trial court level; but then the Supreme Court unanimously reversed the decision, and as a result made it difficult for public officials who had been using these lawsuits to suppress media criticism of their actions that had violated civil rights.

In January 2021 outgoing President Trump’s entire Twitter account was removed by the service for violating Twitter’s internal policies. While the rights of journalists to speak openly about public officials was established, the rights of individuals to say things online remained unclear. Two early online services had very different approaches to handling what users say. CompuServe made it clear that they did not regulate what customers communicated on their services, but their competition, Prodigy, actually employed a team of moderators to validate customer-posted content.

In 1990 a newsletter on CompuServe called Rumorville USA published “defamatory content” about Cubby, Inc., a competing online newsletter. Cubby sued CompuServe, but was unable to prove that CompuServe knew, or should have known, that somebody had posted the defamatory conduct. An appellate court found that “CompuServe has no more editorial control over such a publication than does a public library, bookstore, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.”⁵

CompuServe’s hands-off approach saved it, but Prodigy’s active involvement did nothing to shield it from liability. In 1994 an unknown user of a Prodigy online bulletin board posted that an investment firm, Stratton Oakmont, had committed criminal and fraudulent acts in connection with an initial public offering of a stock. Stratton Oakmont sued Prodigy and the anonymous user. Prodigy tried to assert the rationale in the CompuServe case, to argue that it could not be held liable for user-posted content. The court disagreed. Wrote the court: “Prodigy’s conscious choice, to gain the benefits of editorial control, has opened it up to a greater liability than CompuServe and other computer networks that make no such choice.”⁶

The following year, in order to protect the Internet from constant lawsuits, Congress passed the Communications Decency Act, codified in 47 U.S. Code § 230 (“Section 230”), which states in part, that “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” and shields them from civil liability.

However, the rule does not restrict the ability of online services to restrict content. It exempts the services from liability if they work 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.” This does not protect services from liability in case there are materials that are prohibited by federal law, such as sexual exploitation of children or obscenity.

In the text of Section 230 itself Congress stated that “it is the policy of the United States . . . to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services.”

Free Speech in a Private Forum

There are no easy solutions to the issue of maximizing free speech and responsibility while limiting legal liability. Currently social media companies are allowed to moderate and remove content for any reason and still avoid legal liability for statements made by users.

In response to apparent partisan censorship, some politicians have talked about removing Section 230 protections from online services. However, this would likely have a chilling effect on speech, since it would again make social media companies liable for defamatory statements, as we saw in the Prodigy case.

Another solution would be to impose an updated version of the Fairness Doctrine, which required companies that held broadcast licenses to present both sides of controversial issues in an equitable manner. The Fairness Doctrine per se would not apply to the Internet since it was a creature of the FCC and in 1987 was abolished by the commission, which found that “the intrusion by government into the content of programming occasioned by the enforcement of the Fairness Doctrine restricts the journalistic freedom of broadcasters and actually inhibits the presentation of controversial issues of public concern to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists.”⁷

In addition, there is an interest of social media companies to operate in a manner that they believe to be reasonable and profitable to them and their shareholders. Attempts by a governing authority to monitor the degree of freedom they offer to users beyond protecting users from material that is already prohibited by federal law would raise its own constitutional concerns.

Americans cannot trust that social media companies will have their best interests in mind when it comes to limits on free speech. As time goes along, and more speech is funneled through nongovernmental technology, the government’s ability to promote freedom of speech will likely decrease, and people will need to find alternatives to major social media companies if they wish to share opinions. It may well be time for parallel networks that are truly dedicated to principles of equality of ideas and free speech.

One thing is sure: without free speech, the tyranny of ideas will emerge. Without free speech, faith proclamation will wither and retreat to the catacombs. But with the viral explosion of both information and disinformation we risk the biblical warning of “always learning, but never able to come to a knowledge of the truth” (2 Timothy 3:7, NIV).⁸

1 See testimony of Richard Gere, Subcommittee on International Trade, Custom, and Global Competitiveness, June 30, 2020, https://www.finance.senate.gov/imo/media/doc/30JUN2020GERESTMNT.pdf.

2 Barbara Feder Ostrov, “Cue the Debunking: Two Bakersfield Doctors Go Viral With Dubious COVID Test Conclusions,” CalMatters.org (https://calmatters.org/health/2020/04/debunking-bakersfield-doctors-covid-spread-conclusions/), retrieved January 22, 2021.

3 Katelyn Pollantz, Sara Murray, and Ellie Kaufman, “Trump Campaign’s Biggest Legal Costs Are to Firm That Sues and Threatens Media,” CNN, February 28, 2020, https://www.cnn.com/2020/02/28/politics/charles-harder-trump-lawsuits/index.html, retrieved January 22, 2021.

4 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

5 Cubby, Inc., v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).

6 Stratton Oakmont, Inc., v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995).

7 Robert D. Hershey, Jr., “F.C.C. Votes Down Fairness Doctrine in a 4-0 Decision,”. FCC Video (FCC 1987),. NBCUniversal,. New York Times, August 5, 1987.

Article Author: Michael D. Peabody

Michael D. Peabody is an attorney in Los Angeles, California. He has practiced in the fields of workers compensation and employment law, including workplace discrimination and wrongful termination. He is a frequent contributor to Liberty magazine and editsReligiousLiberty.TV, an independent website dedicated to celebrating liberty of conscience. Mr. Peabody is a favorite guest on Liberty’s weekly radio show, “Lifequest Liberty.”