American Enterprise Institute

Web event — Free speech in the digital age: Assessing the values and consequences of free expression

Opening remarks: Mark Jamison, Visiting Scholar, AEI

Panel discussion

Panelists: David Freiheit, Attorney, Freiheit Legal Pamela B. Paresky, Visiting Senior Research Associate, Stevanovich Institute on the Formation of Knowledge, University of Chicago Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School

Moderator: Mark Jamison, Visiting Scholar, AEI

Monday, March 29, 2021 10:00–11:00 a.m.

Event page: https://www.aei.org/events/free-speech-in-the-digital-age- assessing-the-values-and-consequences-of-free-expression/

Mark Jamison: Hi, everyone, and welcome to this event by the American Enterprise Institute on free speech in the digital age. I’m Mark Jamison. I’m a visiting scholar with AEI, and I direct two research centers at the University of Florida. Today, we’re going to focus on the principles of free speech — not the legal definition — because we want to understand what free expression means and its consequences. These seem to be in flux in our digital age.

We have with us three very distinguished panelists that I’ll now introduce. Nadine Strossen is the John Marshall Harlan II Professor of Law, Emerita, at the New York Law School. She served as president of the American Civil Liberties Union from 1991 to 2008, the first woman in the history to lead the ACLU. The National Law Journal has named her one of America’s 100 most influential lawyers, and several other publications have named her one of the country’s most influential civil liberties advocates. She’s made thousands of public presentations before diverse audiences, including on more than 500 campuses and in many foreign countries. And she comments frequently on legal issues including free speech in the national media.

Pamela Paresky is a visiting senior research associate at the University of Chicago Stevanovich Institute on the Formation of Knowledge. Her current project, “Habits of the Free Mind,” is a toolkit for engaging across lines of difference without feeling traumatized and without dehumanizing others. It served as a centerpiece for an academic course at the University of Chicago in 2020, and it will eventually become a book. Her work aims to guide readers and students to develop the practices and mental habits necessary to engage in constructive dialogue and disagreement, embrace our common humanity, and thrive in a pluralist liberal democracy.

David Freiheit is a Canadian attorney-at-law turned famous YouTuber under the pseudonym Viva Frei. That’s where I came across him. David produces videos on free speech, politics, and sociocultural issues both in the US and Canada. And as YouTube has doubled down on its content moderation, David spends a lot of his days on the front lines of the free speech debate. As a lawyer, he’s presented cases before judges in both the Superior Court and appellate level courts in Canada, all while becoming a rising star on the internet. David’s legal expertise has equipped him well for the world of online politics, and we’re excited to have him with us today.

So, Nadine, Pamela, and David, welcome.

Nadine Strossen: Thank you for having us.

Mark Jamison: Well, let me begin with just a brief context. When this country — and David, I’m going to refer to the US as this country — when it was founded, there was broad consensus that government should not infringe on freedom of speech. Indeed, the First Amendment to the Constitution reads, and I quote, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press.” Fast forward to the 1950s, ’60s, and ’70s; this right to freedom of speech comes under fire. But the courts speak, and they take the First Amendment quite literally.

Let’s fast forward to today. Nadine, I’m going to ask you: My sense is that college students, faculty, members of Congress, heads of social media, and a lot of other people, they say they’re in favor of freedom of speech, but there seems to be an asterisk. And the asterisk

says: “Well, here are the exceptions,” and that list of exceptions just seems to be growing longer, and that worries me. But what’s your assessment of the status of free speech today in our digital age?

Nadine Strossen: Well, thank you so much, Mark, for that very helpful introduction. In terms of legal protection for free speech, as you indicated, the United States Supreme Court, starting around the 1960s, has continued to vigorously enforce robust protection against government suppression of speech, which is what the First Amendment protects us against. So, famously, or infamously, the Supreme Court has protected a whole range of very controversial, unpopular speech: everything from hate speech, including burning crosses, to animal crush videos, to funeral protests by the Westboro Baptist Church that are denouncing gay people and military people and Catholics and basically anybody who’s not a member of the church.

On and on and on, the Supreme Court basically has consistently enforced the notion that government may never suppress speech simply because its viewpoint, its idea, its message, or its content is either deeply despised or vaguely feared to be potentially dangerous. In a nutshell, the Supreme Court has said, “Government may restrict speech only if it can satisfy the very heavy burden of showing that the restriction is absolutely necessary to prevent some specific, imminent, serious danger such as intentionally inciting imminent violence that’s likely to happen imminently,” an example that’s been touched upon a lot lately.

However, to protect us against government suppression of speech is not enough to secure meaningful free speech when so many powerful private-sector individuals and institutions are exercising speech-suppressive power as a practical matter that is beyond constitutional constraints.

Moreover, many of these powerful private-sector actors, including social media platforms, far from having any duties under the First Amendment to non-discriminatorily allow access to controversial speech as government must do — to the contrary, they have their own First Amendment rights, which permit them to pick and choose in whatever fashion they want; it can be arbitrary, it can even be flagrantly discriminatory. And I do believe that they should have these free speech rights with a potential caveat that we may get to later on. So, the question is: What can we do to secure meaningful free speech?

And many of us like to use the term, Mark, a “free speech culture” as well as free speech law. And that includes a culture that would persuade powerful companies, but also individuals and groups of individuals such as social media mobs who are also exercising their free speech rights when they call for deplatforming other speakers. But the net effect on our free speech culture and the opportunity to express ideas, even — indeed, especially — when they are controversial or unpopular is very much under siege.

Mark Jamison: Well, thank you. Pamela, she just stepped into a space where you’re a real expert on: What are the implications of free speech or restricted speech on how societies develop, how individuals develop? What are your thoughts on the state of things today and what the underlying principles are?

Pamela B. Paresky: Well, first of all, thank you for having me. This is such a great opportunity to talk about a very important issue. I think what we’re seeing now is a shift from a general sort of understanding that we had, culturally, that free speech was a way for

the disempowered to have a voice, to a sort of misunderstanding that it’s the people in power who are benefiting from freedom of speech. I think that what we’ve sort of lost in teaching our children and certainly on college campuses is the understanding that it’s only people in power who can censor, so if you want to look for who really has power, you want to look for who is looking to silence people — who is asking for censorship. So, that’s one of the areas that I think our education system has done not a very good job.

If you ask students in high school, in particular, and even in college, they are not really very well aware of how freedom of speech and our free speech culture had such a powerful and helpful effect on our civil rights, on the civil rights movement. It wouldn’t have been possible without freedom of speech. So, the main thing is that people really need to start a new sort of movement of understanding that the disempowered are who are empowered by freedom of speech. So, that’s the first thing.

The second is that all of the efforts for social media platforms to reduce disinformation and misinformation by censoring has potentially had the opposite effect. For one thing, people have moved off of the mainstream platforms onto the less visible or even “dark” web. At the Network Contagion Research Institute where I do some research, we found that, for example, QAnon and other conspiracy theories have moved into the dark web, and that makes them harder to detect. It makes it harder to see what they’re doing. But then they also are able to create less detectable means that then spread on mainstream media platforms, encouraging people to take on these not credible ideas, and that’s a problem in our information system.

There’s an idea of “friction” that Tobias Rose-Stockwell and Renee DiResta spoke about in an article in Wired, which I think is a very smart way of thinking about this issue: that there’s a tension between speed and accuracy, and false news on social media that makes its way faster and more widely through our system than accurate news does. So, friction is the idea that you need to slow down, there needs to be stopgaps, there needs to be obstacles to getting things out in that way. I don’t know how we create those, but I think we need to create them culturally rather than creating them from a regulatory sort of system.

Mark Jamison: Okay, well thank you. David, you come at this — so you bring to this conversation — something that’s different, that: One, you’re from Canada, so the legal dimensions are a little bit different. But also, your business is speech, and a lack of freedom of speech really messes with commerce in some instances. So, tell us what your thoughts are, where we are, and how it’s going.

David Freiheit: So, first of all, thank you for having me, because I never would have thought I’d be here 1.5–2 years ago. This is an accidental journey. I started making these YouTube videos breaking down legal stuff, never thinking I would get into the culture wars or the war on freedom of speech. And I never really fully appreciated the fundamental difference between freedom of speech in the United States and Canada. You know, hate speech is not a concept that’s tolerated in the United States. As far as restrictions on freedom of speech go, you have the criteria of the true threat being the one reasonable limit, whereas in Canada, we have hate speech laws. We have human rights tribunals giving fines to stand- up comedians for making jokes about a handicapped celebrity kid (true case). So now, I fully appreciate where things go once you start going off that slippery slope.

And the issue is: People say, “Well, okay, it’s freedom of speech. Congress shall enact no laws, so long as private enterprise does it, I don’t have a problem with it, it’s not illegal, and

if it stops me from hearing things I don’t like, I like that today,” not appreciating what that might mean for them tomorrow. And you have private enterprise, which are effective monopolies that control the public square, exercising what would otherwise be unlawful conduct for the government without themselves being subjected to the checks and balances that would otherwise be imposed on government, which makes it even more dangerous.

And, you know, speaking to the friction issue and the reverse effect that all this has — and people appreciate it only in retrospect — when you have social media giants, the monopolies, censoring information, and people subsequently find out that that information which was censored two months ago is, in fact, accurate information, it causes them to be more suspicious of other more sinister stuff that might have been censored that might, in fact, be misinformation.

And so you have this Streisand effect on social media, which is to the effect that by censoring something, you bring more attention to it and you invariably lend more credibility to it by so censoring it. And so it does have this reverse effect on substantive matters that might be actual misinformation, but when you censor, for example, the Hunter Biden story, only to a couple of weeks later admit, “Yeah, it was a true story, we shouldn’t have done what we did,” well then when you have them censoring other more potentially serious issues, you have people reflexively going into the mode of: “Is this real censorship or is this politically motivated censorship?” And it causes — I’ve seen now in a year and in two years, it causes more harm than good.

Mark Jamison: All right, well, thank you. Nadine?

Nadine Strossen: Thank you. In my initial remarks, I said I wanted to mention one caveat to my generalization that social media censorship is protected by the First Amendment. And one caveat is this: If the social media companies are in fact engaging in their speech restrictions, including on so-called hate speech, I agree with you, David — it is an inherently subjective, vague concept. The same is true for disinformation or misinformation, which is why these concepts are so dangerous. They’re basically enforced according to the predilections of those who wield power or those they are responsive to. And we have real basis for fearing that the social media companies are in fact acting at Congress’ and other government officials’ demands, and the demands initially were quite veiled, but they are getting more and more explicit.

Just last week, the heads of Facebook, Google, and Twitter were hauled before Congress for the third time in less than five months, and members of Congress on both sides of the aisle, by the way, are basically saying, “You’d better restrict more of what we consider to be dangerous speech. If not, we’re going to do it for you,” or, “We’re going to do it to you.” And sensibly, the constitutional law doctrine that says, “Generally, private-sector actors are not held to a constitutional standard” has a commonsense exception, which is: When they are so entangled with the government — when, basically, the government is pressuring or inducing them to engage in conduct that would be illegal if the government did it itself directly — it should be equally illegal when it’s done through government coercion, and I think we’re getting closer and closer to that point — if we’re not already at it.

Pamela B. Paresky: And if I can add — the First Amendment limits on speech are a really wise set of principles to use for other entities as a limit with time, place, and manner restrictions. As Nadine can attest, there are restrictions within the First Amendment about

when people and where people and in what way people can exercise their First Amendment rights. For example, in a classroom, we can’t allow students to say anything and everything they want in whatever way they want in order for us to be able to teach. So, you know, as much as students like to think that they have freedom of speech in the classroom, they don’t have unrestricted freedom of speech in a classroom. And in a business, you can’t have people protesting or, you know, doing things that disrupt business inside your company.

So there are some restrictions that employers can place on their employees, that professors and administrations can place on their students. And those are actually really well suited for being used as a sort of guideline, like a mental map, for what ways people should think about how they exercise their freedom of speech. And what David was saying is really important: that the more these social media platforms engage in censorship, and the more the government — and what Nadine was talking about is especially important — the more that people see that the government and that these platforms are operating in tandem, the less people trust the social media platforms, and the less they trust what the social media platforms are saying is not credible information, and the more they search for and find less credible information. So, it has a deleterious effect.

Mark Jamison: Go ahead, David. Nadine. Pamela, I’m going to come back to you because you started out with the word “wise” and you talked about why these principles should matter broadly. I want you to tease that apart some more. But David, go ahead.

David Freiheit: I was just going to say: On the issue of the social media giants effectively acting as agents to the government, we’re seeing it now. And so then the question is: To the extent that they’re acting as agents to the government, should they not be held to the same standard? And if they’re not, and they’re actually exercising — now getting to the Section 230 issue; we call it “editorializing” their content on their platform — should they not then be held to, you know, some other lawful standards that would otherwise apply to other people who were making such editorial decisions as to what they’re going to publish, what they’re going to remove, who they’re going to brand as misinformation, and who they’re not?

And the amazing thing is: You have the corruption that you can have when these social media giants are acting as agents to the government, but when it becomes a business of itself, you have the corruption there as well. Candace Owens is suing Facebook now on the basis of defamation and other issues, but there becomes a business and it becomes profitable for Facebook to qualify certain things as misinformation and redirect to their trusted partners who are, in fact, partners in an economic sense as well.

And so people are not stupid, and the internet has democratized information to some extent. (It has democratized misinformation to some extent as well.) But when people start finding out the corrupt nature, you know, the incestuous relationship with government, or the economically corrupt nature of what social media is purporting to be good-faith fact- checking, good-faith censorship, it really causes a massive distrust, and it causes people to lend more legitimacy and credibility to what would otherwise be things that people might write off as conspiracy and do their own research and find out more on. So, I just wanted to add that.

Mark Jamison: Okay, very good. So, I want to spend more time on that trust issue because it seems that’s very important for the social fabric, but let me get back to why free speech

matters. It could be that we just don’t trust politicians and that’s what the First Amendment was all about, but I suspect there’s more to it, and Pamela, I think you alluded to it. Could you talk about why freedom of expression is important for social development and personal ideas? Because I know you’ve done some work and you have colleagues who have done work in that area.

Pamela B. Paresky: Yeah. So thankfully, I was able to teach at the University of Chicago, which is peerless in its protection of student expression rights and faculty expression rights and academic freedom. And I think what we sometimes fail to remember is that freedom of speech is a principle, it’s a philosophy, and, as Nadine said, a culture in which people have to sort of — friction, I think, is another good way to think about it in this realm too, is that we have to have some friction. We can’t surround ourselves with people who only say the things that we’d like. We have to be able to grapple with ideas and people and words that we find upsetting, that we find offensive, in order to challenge ourselves, to challenge our ideas in order to sharpen our arguments.

In Judaism, there’s a concept called Machloket L’shem Shemayim, which means “argument for the sake of heaven.” The idea is that your interlocutor who opposes you is your partner in your search for truth — and this is a noble endeavor. And it’s not just good for you; it’s also good for society. So you have to have the hardiness, the persistence, the resilience to be able to grapple with ideas that you find fundamentally abhorrent. Hence, the ACLU being able to defend neo-Nazis marching in Skokie because at the time, they understood the necessity of a free speech culture in which even that very upsetting, very emotionally injurious event was necessary for our society to thrive.

And people were able to deal with that. We have to have the ability to confront even the most horrifying ideas in order to defend our ideas, in order to overturn bad ones, in order to convince people or persuade people of the rightness of our ideas or change our minds. It all has to be possible. The more people are isolated and surrounded by people who agree with them and people who only say things that don’t upset us, the less we’re capable of thriving in a pluralist liberal democracy, and the more authoritarian the society becomes.

Mark Jamison: All right, thank you, Pamela. So, I’m going to turn to you, Nadine, because, you know, Pamela was telling us about this conflict of ideas is necessary for our mental resilience, our social resilience. I know you have a comment on that, but also, I want you to talk about a book you’ve written — which, if I’d been clever, I’d have it beside me, but I don’t, it’s on my desk over there — about: The way to battle hate speech is with free speech. And so tell us about this if you would, please.

Nadine Strossen: All right, yes, so thank you for calling out this book, in which I quote Pamela multiple times for a different but really important point: A lot of the censorship that’s going on of hate speech, including on college campuses, is allegedly to protect victims of — or intended victims, I should say — of disparaging, racist, and other hateful slurs to protect their mental and psychological and emotional well-being, right? We hear students regularly complaining about the trauma that these words caused them. And Pamela is herself an expert, and she quotes other experts in psychology and mental health who say, you know, “It may be well-intended to protect these students from hearing hurtful, offensive, insulting words, but actually, it does them more harm than good in terms of their psychic well-being, their emotional health.” I mean, we’ve got to prepare them for the real world where they’re going

to be subject to not only hateful, hurtful expression, but also actions. And so, I think that’s another really important point.

I wanted to add, Mark, to Pamela’s great explanation of some of the many virtues of free speech that in our democratic republic — this is as true for our friends in Canada as in the United States — that freedom of expression is important not only as a matter of individual and social well-being, as Pamela explained, but the United States Supreme Court said it so well: When it comes to speech about public officials or candidates or public affairs, it is more than a matter of individual liberty; it is a matter of self-government. Freedom of speech is essential to self-government. “We the people,” to quote the opening words in our Constitution, wield sovereign power.

How can we effectively do that unless we have the most robust, unfettered freedom to hear from those who are seeking to be our leaders or who are wielding political power, and the most robust freedom to criticize them, dissent from them, question them, which is why I’m very concerned about the social media platforms ousting democratically elected officials, right? Donald Trump was still president of the United States, commander in chief of the armed forces in this country — finger on the nuclear trigger. He had a lot of power. And when Facebook deplatformed him, what was at issue was not only his right to convey his ideas — and, you know, I’m not defending the content of his ideas any more than I defended the content of the Nazi ideas. It’s the principle that’s at stake.

But freedom of speech also means the right of willing audience members to hear the ideas and information. How can Trump’s critics effectively respond to him if they can’t hear what he’s saying? And incidentally, a number of political analysts believe that it was precisely his controversial tweets and other social media posts leading up to the election, his most incendiary or controversial posts, that helped to tilt the election against him. His opponents were galvanized by that. So there’s not a simple cause and effect between hearing ideas you may disagree with and therefore, “Oh, it will do good to censor them” — another way in which that could be counterproductive.

David Freiheit: I’ve got to say something, actually. An amazing point is: How can they respond to him if he’s not on the platform? This is a feature, not a bug. You know, when they ran the tests of whether or not they could “un-person” someone with Alex Jones and they got away with it, they saw what you can do is: You get a person off a platform so they can no longer defend themselves, so nobody can actually hear the actual words spoken by the person, so that they can then get away with saying whatever they want and no one can check the veracity of what they’re saying or hear the opposite side.

You know, my understanding or my feeling now, a lot of young people, especially in university settings, tolerate the censorship because they’re under the impression, you know, like, “Why do people need to say things I don’t like?” without appreciating that the freedom of speech is precisely the idea of having the freedom to say things that you don’t like because otherwise, it’s not freedom of speech; it’s already censored speech. And, you know, youth has its benefits, but it also has its pitfalls — one of which is lack of experience, and when you don’t yet understand and have not yet seen how it gets weaponized and politicized — you know, a prime example is: You don’t want hate speech on social media platforms. Facebook doesn’t want racist posts. And so then when you try to share politically oriented posts of, say, prime ministers or other leaders who are dressed up in offensive costumes a little while back and then they’ll start getting censored on the basis of hate speech, well, now

you actually have censorship, politically motivated censorship that is disguised as hate speech.

And I think a lot of people, once they realize that, they will realize the true value of uncensored freedom of speech — even if you find it utterly offensive, because it goes from the objective to the subjective to the politically motivated, and that is how you go from a free society to a tyrannical one.

Pamela B. Paresky: And also, there’s a level of misinformation about free speech in the US where I think a lot of students have the idea — and I think some of the surveys bear this out — have the idea that our laws are more like Canada’s laws, such that they’ll say things like “free speech, but not hate speech.” And that’s a basic misunderstanding of what our free speech laws protect, which is hate speech.

Nadine Strossen: And I think there’s a corresponding misunderstanding, which is that hate speech or all speech is absolutely protected in the United States. That’s not true. I think our law does draw very sensible distinctions between protected speech and unprotected speech, which is: It’s never unprotected solely because of content that is unpopular or controversial — only when in a particular context it directly poses an emergency, you know, specific imminent harm that can only be averted via censorship. So if hateful speech, you know, is said in a way that intends to instill a reasonable fear that you’re going to be subject to violence, that’s a punishable, true threat. Or if hateful speech is said in the context of intentional incitement of imminent violence, which is likely to happen, that can be punished.

So, I think, you know, there’s a misunderstanding. I totally agree with Pamela. The more people would understand about what our law actually does, the more supportive they would be of it. But, you know, if I can throw into the hopper — we’ve talked about various threats to free speech, but one that has not been expressly mentioned that I know we’re all concerned about is self-censorship.

And, you know, survey after survey continues to show that substantial majorities of people in this country — I assume it’s the same in Canada but I can’t say I’ve seen any studies about Canada. But in the United States, it doesn’t matter whether you’re talking about Republican/Democrat, conservative/liberal, young people/old people; all of us are saying that there are certain subjects that we will not address for fear of bringing down, at best, stigmatization, at worst, getting fired from our jobs or having some — you know, getting thrown out of a university, which are realistic fears, as we know. And those sensitive subjects are, of course, the most important ones: race and gender and so forth.

Mark Jamison: Right. So I failed at the very start to tell the audience that at about 10:45, we’ll open it to questions, and you’ve received instructions on how to send those in, so just to alert you to that.

We’ve talked about the way members of Congress are acting, the heads of social media are acting, etc. Let me just put you in the position of one of the heads of social media. You’ve just gone through Congress saying, “You will tighten down on what other people say or I’m going to do these kinds of things to you.” You know from watching other platforms that things can get out of hand and can destroy your business model.

One of the reasons that Facebook became as prominent as it is is because one of its rivals — I don’t remember exactly what the issue was, but it was in Brazil — it just became polluted with things that people couldn’t stand and so everybody dropped off and went someplace else. So if you’re a head of social media, what do you do, because you hear the importance of free speech but you understand the challenge to your business? David, you’re the closest to something like that, so what are your thoughts?

David Freiheit: Well, I mean, I would say that to the greatest extent possible, you have the least restrictions possible. But I think, actually, the bigger issue is not the restrictions that are in place; it’s just the selective application of those restrictions. I think if you had clear policy in place that was applied equally and without discrimination and without political discrimination, there would be very little problem. People would accept it as the rules of the game.

But when you have on Twitter and Facebook, for example, sanctions that appear to be politically motivated and there’s no other explanation for it, you know, one side gets away with what are objective threats and the other one gets deplatformed for what were, you know, arguably threats, it is the political weaponizing of these terms of service that become the issue — not necessarily the terms of service themselves. So I would ensure that I have the least invasive restrictions possible to remain a free-speech platform, and I would ensure that they’re applied without political distinction, which really does not seem to be the case and might be a dream-type wish, because it seems that these social media platforms are politically motivated at their core.

Mark Jamison: All right. Nadine, what are your thoughts? If you were one of the people testifying to Congress last week, what would be your approach?

Nadine Strossen: Well, I can’t put myself in their seat, but I think what I’m advocating should be conducive to their legitimate business concern, which is providing what the users want. And that completely coincides with my goal as a civil libertarian, which is to maximize individual user freedom of choice.

And how do you do that? You don’t do that through some top-down centralized gatekeeping, one system fits all. Instead, you would facilitate what the techies call “interoperability” and “delegability.” You would open up your platforms with sufficient privacy protections — I’m assured this can be done — to others to install various filtering options, and you as a user can delegate it.

You could say, for example, “I don’t want to see graphic violence” or “I don’t want to see nudity except in art,” “I don’t want to hear anti-Semitic speak.” Or you could say, you know, “I want to hear everything.” And there could be, you know, just an infinite range in between — the way we make our own choices about what library books would want to read, right?

And this is somewhat analogous to what was done, I understand — and you’re the expert here, Mark — with landline telephone companies when they were broken up in the United States: that they were made accessible to other companies to build upon their basic infrastructure to facilitate a range of user options.

Mark Jamison: Okay. So, Pamela, I’m going to get back to this issue of trust. You raised it earlier. David did as well. It seems that on the one hand, the social media companies have to

worry about trust in their platforms, but there’s also the issue of us trusting each other and trusting our politicians as well. How do you weave all that together?

Pamela B. Paresky: That’s a very small question. You know, I think the only thing that I can focus on is what individuals can do. I’m not a policy person; I’m a psychologist, so I think the first thing that individuals can do is do a little better job of verifying the things that they’re circulating.

For one thing — you know, I don’t know if you have this experience — but I get emails from people all the time with, you know, “This is so and so’s keynote speech,” or “So and so said something” or “There’s a story about this thing that happened. Did you know about these data?” And it doesn’t seem right, and so I look it up, and it turns out that this is just false information that’s been circulating and most people, I don’t think, look at that and then check it out before forwarding it. If it’s consistent with their ideas, if it forwards their belief, if it seems like it would be persuasive to other people to get them to believe what they do, they just go ahead and forward it.

That’s the kind of friction that Tobias Rose-Stockwell and Renee DiResta are talking about: on an individual level, to create this barrier between the smooth and frictionless dissemination of disinformation. We each have a responsibility as members of a society to be trustworthy in addition to having our institutions be trustworthy. We need to be trustworthy partners in our society, so we should do a better job individually of checking things out before we spread that misinformation unknowingly ourselves.

And Twitter has done something — I don’t know if Facebook has done this, but they’ve done something to try to help us do that — which is: Now, if you notice, if you want to forward a tweet that has an article in it, it will ask you, “Do you want to read the article first?” So that’s, I think, a useful thing. It’s annoying, right? It’s quite annoying, but then you get used to it, and I think it’s useful because it makes you stop. And I remember there was a young woman who — very young, maybe a teenager — who created an app or a plug-in or something that would ask you, “Do you really want to post this? It might offend somebody.”

And just that momentary pause had a significant effect on whether people would then go ahead and post that thing that might have been not a very nice thing to post. So those are the kinds of things that we’re not really set up — our brains are not used to this kind of very fast- paced, instantaneous kind of communication that goes viral to, you know, thousands or hundreds of thousands or millions of people.

So we need to really start acting in a way that’s different on social media than we do in person. In person, we can say something and then someone else will say, “That doesn’t sound right to me, are you sure?” And then you can say, “Oh, well, I really haven’t checked that out,” and it’s gone; it doesn’t have persistence. But if you tweet something or post something on Facebook, it has a life of its own, and that misinformation, we are all part of disseminating.

David Freiheit: You know, the funny thing is I like that notification better than the one Twitter was giving, for example, With the Hunter Biden story where it was not allowing you to physically share the link as a tweet or even as a DM, which I found shocking and scaring. But, yeah, people should verify their information, do a little bit of homework. People have

gotten lazy. I don’t think we’re going to change the intellectual laziness of a substantial portion of the population. I think what you do do is allow the discussion to happen.

And here, I was hesitant to even give the example because, you know, I still think I’m on YouTube where you can’t talk about the vaccine issues without getting into trouble. But one of the misinformation elements going around was, you know: The vaccine creates an antenna in your body for 5G and, you know, YouTube censors that. And I say, like, you know, that idea might get some traction and might get some views, but the discussion it’s going to elicit is going to get to the truth at the end of the day.

And, you know, viral information goes viral, it gets its clicks, but the internet and the aggregate knowledge of the internet has a way of calling out the misinformation and branding those who provide it as misinformation — that the marketplace of ideas eventually decides whose ideas are ultimately good and whose are to be discredited. Even if you have a post go viral every now and again, I think the discussion is, itself, more viral but just slower growing and longer lasting than the initial whatever misinformation might be of the day, but the discussion has to be allowed to happen.

Nadine Strossen: Even if people are too lazy or too pressed for time, which is often my reason to not check something out, at least we have to imbue them with a healthy skepticism. I understand: If you have deep distrust, that can become a problem, but I think a certain amount of skepticism about everything we read from every source. Dare I say: Even the most respected and widely read newspapers and television sources, we should all know that we have to take it with a grain of salt.

And in fairness, the internet does make it unprecedentedly easy and fast to do your own fact- checking, right? You can go to alternative sources. You can usually go to the original source quite easily. So as long as we drill it into people’s heads that just because — even if a good friend like Pamela sends it to you, if she hasn’t checked it, you know, maybe you shouldn’t rely on it.

Pamela B. Paresky: Yeah, absolutely. And if I can just note that the Network Contagion Research Institute’s most recent report is called “A Contagion of Institutional Distrust,” and it is about what happens when people don’t trust our institutions and don’t trust the media. And that is part of what’s happening with the vaccine conspiracies and the protests against vaccines and against COVID restrictions, etc. There is a one-sided narrative that’s being disseminated by institutions, and that creates a pendulum that has swung very far to the other side for a group of people who just don’t have any trust left.

When you look at what happened with that group of kids — I can’t remember, a couple of years ago — from Covington Catholic Academy or whatever it was called, and the mainstream media jumped on a narrative that was absolutely inaccurate. And it resulted in lawsuits. It resulted in settlements for this young man who was just completely unnecessarily defamed. And it’s great to see that we have those corrective measures such that it was possible for him to, in that case, sue and settle, which is, you know, it’s very difficult, as Nadine can say, to win a defamation lawsuit against a news organization. But we do have those guardrails in place. We should not have to use them that often, and that is a problem.

David Freiheit: I’ve got to tell you, you may or may not be aware of this, because I was in the Sandmann lawsuits analyzing them at the time and talking about how censorship gets

weaponized for political purposes. In the context of that discussion, YouTube amended its terms of service to add — it was either veteran heritage, aboriginal heritage, or veteran service as an element that you could not disparage of a person, because one of the issues in that case was: Nathan Phillips, the native elder, was actually not an elder and did not serve in Vietnam. And so people calling that out were, at the beginning, doing it successfully, but then YouTube amended its services to create a guideline that made it demonetizable or removable to address that issue on the basis of hate speech. And this is when you basically destroy the system. You destroy any trust in mainstream media, in social media platforms by weaponizing the censorship under the guise of the good. It was an amazing example with that case.

Mark Jamison: All right, so, thank you. We’re going to now go to the audience. I have at least one question, and if anybody has any others they want to submit, please do so.

The question I have is not directed at anyone in particular, so I’ll take volunteers to answer it. It says, “Sen. Elizabeth Warren tweeted at Amazon last week that she wanted to ‘fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets.’ Many of her followers cheered while free speech fans cringed. This is a step back for free speech culture, but does it also suggest that there are legal defenses against antitrust actions based on free speech principles?” And let me turn to one of our lawyers first on that. Nadine, would you talk about that?

Nadine Strossen: I’m not an antitrust expert, but I’m thinking of a wonderful organization in Washington, DC. I believe it was founded by — and certainly headed by — my longtime ACLU colleague Bert Foer. I can’t remember the exact name, but it’s something like the Antitrust and Free Speech Institute, and its whole focus is on using the principles of antitrust law and free speech law in a complementary way to protect the economic marketplace as well as the marketplace of ideas. And I think when you are talking about an undue concentration of economic power on the part of those who are engaged in the communications business, it necessarily is going to have a deleterious impact on free speech because their policies have such an overweening impact.

So I certainly don’t support the rhetoric behind that tweet at all because I think that media as well as individuals should have free speech rights, including to criticize politicians, including to criticize politicians unfairly, just as I defend politicians’ right to unfairly criticize the media entities, right? But I certainly do think that the antitrust investigations that are going on now should certainly be pursued to make sure that there is not an abuse of economic power.

But I will say this: My mind is open about that. It’s a very complex set of issues defining what the relevant markets are and what the market power is. It’s definitely something worth pursuing, but we should not have our conclusion before we do the analysis.

David Freiheit: I’ve got to add something.

Mark Jamison: Go ahead.

David Freiheit: I’ve got to add something because the hypocrisy in this tweet is mind- blowing. This is Elizabeth Warren — who is a senator who posted one of the defamatory tweets about Nicolas Sandmann — who is, as a senator, hiding behind sovereign immunity to

shield herself from liability for that defamation, now saying that the senators should have protection from snotty tweets from the general public to criticize them. This is exactly how censorship gets weaponized to empower the political class to the detriment of the lowly hoi polloi who lose their ability to criticize while the senators literally have the liberty to defame.

And her case is going into the Supreme Court, being represented by Robert Barnes who’s challenging this. But Elizabeth Warren literally invoked sovereign immunity to defend against her defamatory tweet against Nicholas Sandmann, which she refuses to delete from the internet, and it’s still there — all the while saying that senators need protection from snotty tweets? That’s what’s freedom of speech is about, and that’s what censorship would be about. That is putting the carriage in front of the horse literally and ideologically.

Nadine Strossen: That’s such a great point, David, and James Madison made the same point a couple of centuries ago when he said, “In the United States,” and let’s say in Canada, too, “The censorial power is in the people over the government, not in the government over the people.”

Mark Jamison: All right, let’s go to our next question. It asks, “Can the panelists address the cases where copyright infringement lawsuits and DMCA takedown requests that are used to censor important stories? The Bolivian government uses this approach to silence critics and political opponents, the Church of Scientology has used their copyright on their teachings to sue critics who quote them, etc. What happens when copyright law collides with the First Amendment?”

And I don’t have a sense of which of you would be the most likely to answer that.

David Freiheit: So I have seen the way copyright claims have been weaponized on YouTube, and there’s some less and more legitimate ways. This was one of the concerns about the EUCD implementing the new copyright policy for the European Union. And I said it at the time: One of the risks is that someone is going to acquire the copyright to a politically damaging video and then make claims to take it down from the internet, and that is what happens when you no longer respect the exceptions that we have in the United States and Canada (fair use exceptions).

It’s the risk, and it’s a real risk because even if it’s an abuse of copyright claim, as it happens on YouTube, you get three of them, you have your channel taken down, and if it’s for music in the background, if it’s for reciting the words of a song, etc., it can be easily weaponized as it is, and it’s one of the major dangers, and it’s what happens when the fair use exceptions are no longer respected, which is why you have to make sure that they are not only respected in the court of law, but respected on the social media platforms, because availing yourself of those rights is costly and expensive.

So, if they’re not imposed or enforced at the lowest levels, good luck trying to have the courts address them because nobody is going to do it.

Mark Jamison: All right. Okay, one more question from the audience: “I’m very interested in the effect of censorship/suppression of public discussion of scientific issues and on the practice of science itself on COVID-19, climate change, etc. Does not science require openness? To me, the competition of ideas seems crucial to science.” Pamela, you’re a scientist. What are your thoughts on this?

Pamela B. Paresky: I think that’s absolutely right. Yeah, I mean, there are questions about what kind of platform some flat Earth kind of arguments need to have, or creationist ideas. Do we need to have those represented in academia in order to defend against them? There are legitimate questions about whether you want to bring them into a classroom or ignore them.

But when we look at, for example, what happened at the beginning of the pandemic where very little was known, the first set of information that people got was: “Don’t wear a mask,” and then that got revised. It was initially perhaps not entirely honest, and that was a problem: that if it was the case that we were all told not to wear masks because the hospital workers, health care workers needed them and we were being told not to wear them because they weren’t effective, that’s a problem and people needed to be able to discuss that.

If the social media rules had been in place at the time that are in place now where anything that — and I can’t remember which platforms put this, David probably knows this — but the rules about: You are not allowed to, on social media, post information about COVID that does not conform to what the World Health Organization has put out, then people who, in the beginning, had been saying, “No, we should wear masks” would not have been able to do that.

And then there are questions about medications that were politically inconvenient to say that they were effective but they seem to be effective, and other things, you know, other information that doesn’t conform to the narrative. And then of course, having protests of thousands of people after public health officials had said that we should not be gathering even outside in such large numbers and, in fact, in New York, religious organizations were being told that the police would be involved if they had gatherings outside, but all of that went away for the politically appropriate protests that the public health officials were in favor of.

So that’s the sort of thing that — not only is it important for science, but it’s also important for institutional trust that we get information that’s accurate, that we’re able to disagree, that we’re able to articulate our disagreement with something that we either think is disinformation or that somebody else gets to push back on us if what we’re saying is not accurate. Anyway, David, I know you have a lot more information on this.

David Freiheit: The absurdity is that at the beginning, videos would get systematically demonetized if you even said the word “coronavirus” in them. And so the joke became on my channel: I refer to it as the “My Sharona Cyrus,” and it’s tongue in cheek, it’s just that you couldn’t — if you mentioned the word, you would get flagged by the bots, and then you’d have to, you know, all sorts of problems.

But yes, you know, I say this with respect as in like, “I respect religion,” and I’m not saying this to denigrate religion and there’s no but. The difference between science and religion is that you can question science, whereas you can question religion but in some parts, you can’t. The problem is that they’re fundamentally different, and when people start to treat science as a religion and not as the constantly evolving, constantly challenging system that it’s intended to be, you know, people will regard it as religion for good and for bad. And the issue is: Dogma today can be contradicted tomorrow and you cannot have — it’s no longer science when you can’t challenge the ideas that are being promoted.

Pamela B. Paresky: I would add that in academia, there’s a difference between education and indoctrination. And what you’re pointing to is that difference: that when you are educating, people are able to have arguments, they’re able to disagree, they’re able to push back, they’re able to oppose and dissent, and that is not possible when you’re indoctrinating. That is how I think you see the difference between education and indoctrination.

Mark Jamison: Okay, so there’s still some questions from the audience but we only have two minutes, and so my apologies to the people who have asked questions. We’re just not going to get to them all. To wrap up, what I would like is for each of you to give two pieces of advice. One is: What can or should not be done in law to address these issues? And then what should be done just for the private citizen acting, maybe in education, maybe in their discourse, or whatever that might be?

And David, I’ll start with you, then I’ll go Pamela, and Nadine, we’ll give you the last word.

David Freiheit: So I just finished listening to a book by Gad Saad. He’s a professor in Montreal at Concordia, he wrote “The Parasitic Mind,” and refers to ideas as “pathogens,” as viruses to some extent, and the only way you build up an immunity to the viruses is to expose yourself to dirt, to some extent. You know, shielding yourself in a bubble is going to weaken your physical immune system. Shielding yourself in an ideological bubble is going to weaken your ideological system — your ideological immune system. Expose yourself to the ideas, do not reflexively label anybody as a fundamental one thing or another based on the ideas they espouse. Discuss the ideas without discussing the people, and everyone will evolve.

But this takes training, and it takes a bit of psychological callus to do because in as much as we would challenge other people, other people are going to challenge us and it’s going to make us question our beliefs. That’s the practical advice.

The legal advice, you know: Whatever you do, whatever protest you do, do it legally, and do it respectfully, because nothing good comes of unlawful protest. That is exactly what the powers that be would want so that they can impose more restrictions.

Mark Jamison: Okay. Pamela, your advice?

Pamela B. Paresky: So I would say, following on to what David just said, which I agree with entirely: There’s a concept C. S. Lewis had of having a “second friend.” He said that, you know, your first friend, like your closest friend, typically agrees with you and, you know, you speak the same language. Your second friend is someone who speaks the same language but pronounces it wrong. This is somebody who opposes you. This is somebody who you don’t agree with, someone who is going to push back on you. Find a second friend is my advice.

And as far as — I don’t have legal advice, but I could say something about administrations. On college campuses, college administrations have to be the absolute stalwart protectors of academic freedom and freedom of speech — and we are losing that battle. And organizations like Heterodox Academy, FIRE, in particular, and there’s a free speech union now to protect professors and others who are attacked. So these are organizations that we all need to support, and we all need to be our own defenders of freedom of speech on campus and off.

Mark Jamison: All right, thank you. Nadine, final word?

Nadine Strossen: Great suggestions. In terms of legal regulation that I would support, I would cite the so-called Santa Clara Principles which were adopted by the Electronic Frontier Foundation and a range of civil society organizations and others a few years ago that focus on procedural issues. They are not calling for direct government regulation of the social media content moderation policies, but rather procedural protections of notice and transparency and accountability. Because when we have that information, sunlight is the best disinfectant, and when spotlights have been shown on what these companies’ practices are, they change those practices. But we the people have to be the ones that are bringing pressure, not only the powerful members of Congress with their self-interest.

In terms of what individuals can do, I had also put down a list of organizations including some that Pamela mentioned. I would add the Electronic Frontier Foundation, which is great on digital rights issues, and then to speak up, please. When somebody is being attacked for exercising freedom of speech, you know, it makes the biggest difference to show some support and some solidarity. Surveys show that it’s only the extremes of both ends of the political spectrum that are in favor of censorship and against discourse and robust debate, but the vast middle is simply not being outspoken enough.

So please have the courage of your convictions. It will make it easier for other people to do so and, hopefully, the silent majority will no longer exercise its right to remain silent. It will exercise the opposite: the right not to remain silent.

Mark Jamison: All right, well, very good. So, thank you all very much for all your contributions. I’ve run this a little bit over — my apologies, but I could go on for a long time. This has just been great. And thank you from the audience, and thank you for all the people at AEI that worked so hard to put all this together. We’re all very appreciative.

So, thank you again, and we’ll hopefully see you again soon.