Strategic Capitulation to Speech Threats at Great Public Expense

Never in my 45-year career in telecommunications law and policy, have I witnessed a cascade of public and private tactics and stunts that collectively chill lawful speech and the robust rights of free speech and expression for both public officials and private citizens. Major broadcast networks have agreed to pay millions for the termination of litigation, and impeding, but unspecified, government “investigations.” 

These payments might amount to a small insurance premium guaranteeing necessary government approvals of a multi-billion dollar acquisition, or termination of black sheep status.  However, they severely dilute the value of our First Amendment right of free expression and what a civil society must tolerate. Bear in mind that hateful words and deeds qualify for First Amendment protection, even if many of us would consider such them deplorable and extremely inappropriate.  

I see nothing in what Jimmy Kimmel and other popular commentators have uttered coming close to unlawful “true threat” speech likely to trigger, near term violence. Our government, including the Federal Communications Commission, has no lawful authority to thwart, sanction, censor, chill, and threaten costly investigations of speech that many of us might find hateful, inappropriate, and in poor taste. 

An employer can lawfully terminate someone who makes such expressions in the context of her employment, but who among us wants a government able to intervene in employment and substantive content preparation by private parties? How would the right wing handle more than “regulation by lifted eyebrow” by a Democratic FCC Chairman?  

How close to an official governmental shake down would it take to cry foul? President Obama’s keen interest in network neutrality regulation and President Biden’s concern about Big Tech self-censorship do not come close. 

Now we have private and public censorship masquerading as a demand for fairness and viewpoint diversity.  ABC has to assuage a disgruntled network affiliate demanding financial contributions and other reparations for perceived unacceptable, but clearly legal speech of an “at will” employee.  

What do you make of the millions demanded and paid in cash and billable hours to draw down threats and withholding already congressionally allocated research funds? When does a strategic lawsuit dampen public participation in governance and enrich public and private players?

I understand how uncivil society has become. There are many culprits and not a clear path to civility, humility, and agreeing to disagree.  But demanding financial reparations, firing employees expressing personal viewpoints, and shaming to the point of cancelling discourse is not the way forward.

Just last year, a unanimous Supreme Court endorsed a decision written by Justice Sotomayor, in NRA v. Vullo; https://www.supremecourt.gov/opinions/23pdf/22-842_6kg7.pdf.

The Court unanimously rejected threats of regulatory sanctions and investigations by a New York state governmental official against lawful Second Amendment advocacy by the National Rifle Association. Sadly, I do not have confidence that when the shoe is on the other foot, currently at the FCC and elsewhere, the Court unanimously would apply its newly minted precedent that builds on decades of universally supported First Amendment jurisprudence.

Sad.

Freedom of Speech Hypocrites

Conservatives’ whining about a liberal bias in social media strikes me as hypocritical.  When Fox et al receive criticism about a conservative bias, defenders rally around the First Amendment and libertarianism.  Fox can be as biased and censorious as it wants to be.  Fox can serve as a conduit for Russian disinformation so long as the company does not act maliciously, or grossly negligent.  Fox can target, vilify and disparage.  The New York Post can come up with a questionable “October Surprise,” clearly intending to help re-elect President Trump.

These very same First Amendment advocates expect social networks like Facebook and Twitter to serve as neutral conduits, without any “right” to censor, curate or manage uploaded content from subscribers.  Really?  Conservatives loath efforts by a Democrat-led Federal Communications Commission to impose “network neutrality” obligations on Internet Service Providers.  The Republican majority at the FCC championed deregulation as “Restoring Internet Freedom.”

Now, conservatives want to impose a fairness mandate on social networks who apparently have no First Amendment rights in curating, filtering and algorithmic monitoring.  Settled “SUPER PRECEDENT” recognizes a First Amendment right to curate, filter and monitor content.  Librarians do that,  so do web-based news aggregators and surely Fox, the New York Post and yes, the New York Times as well, do that when they deviate from a commitment to  best practices in journalism.  Additionally, a nonpartisan majority provided web carriers and content distributors significant immunity from liability when providing a conduit for harmful content.  This “safe harbor” helped incubate the Internet, particularly when it was technologically infeasible to monitor the torrent of traffic.

In prior blog entries, I have noted that algorithms make mistakes, including the refusal to issue me a credit card in light of my “insufficient credit experience.”  I will readily acknowledge that the algorithms and staff assessments of social networks may overshoot, or undershoot the mark in curation.

I will never accept the view—conservative or liberal—that ISPs, social networks and telecommunications networks have to assess the political consequences of allowing, or blocking specific content.  Do we really want a regulator or judge to second guess decisions made to allow or block content without allowing the conduit operator to assess the veracity and compliance with the terms of service?  

Have conservatives lost respect for the “sanctity of contract”?  Do they really think the Constitution supports revocation of social networks’ management of the content they disseminate?

Chilling.