The desire for civility in an age of digital communication shouldn’t require chipping away at the edifice of the First Amendment. Yet, the chisels and pickaxes are out, and advocates have donned themselves in the cloaks of Michelangelo. These reformers evidently want to remake the First Amendment in a new image, much as the sculptor said centuries ago: “It is already there, I just have to chisel away the superfluous material.”

The time may be right for a receptive audience. While support for free speech in the U.S. waxes and wanes over time, backing for free speech seems to be headed towards a nadir. According to Pew, Millennials are far more receptive than older generations towards using regulation to prevent people from making offensive statements about minority groups. College campuses have become places ruled by the heckler’s veto. And to tie all of this together, the free speech maximalism of Facebook seem to have lead to tampering by the Russians.

In a piece in Wired, Zeynep Tufekci rides this wave of illiberal sentiment and calls for changes to free speech law in the U.S. Where others haven’t, she tackles the root:

The freedom of speech is an important democratic value, but it’s not the only one. In the liberal tradition, free speech is usually understood as a vehicle—a necessary condition for achieving certain other societal ideals: for creating a knowledgeable public; for engendering healthy, rational, and informed debate; for holding powerful people and institutions accountable; for keeping communities lively and vibrant. What we are seeing now is that when free speech is treated as an end and not a means, it is all too possible to thwart and distort everything it is supposed to deliver.

Tufekci has become well known for her critiques of Facebook and Google, so her articles are worth considering. And, there’s a lot to be unpacked. First, Tufekci too quickly dismisses the liberal tradition and John Stuart Mill, who I think asks the right kinds of questions about free speech. Second, Tufekci doesn’t deal with the very serious legal impediments to her policy prescriptions. While the liberal tradition has long recognized tradeoffs with free speech, it hasn’t been between free speech and other societal ideals, but between free speech and other fundamental rights. Finally, this piece ends with a look at free speech regulation in Europe. In total, one thing is clear; Tufekci’s call for regulation is actually a broader call for changing Constitutional law.

What Mill has to say about Facebook

As Tufekci would argue, the core of the liberal tradition needs to be reconsidered:

Many more of the most noble old ideas about free speech simply don’t compute in the age of social media. John Stuart Mill’s notion that a “marketplace of ideas” will elevate the truth is flatly belied by the virality of fake news. And the famous American saying that “the best cure for bad speech is more speech”—a paraphrase of Supreme Court justice Louis Brandeis—loses all its meaning when speech is at once mass but also nonpublic.

Two quick comments are worth making here. For one, the term market doesn’t appear at all in Mill’s exploration On Liberty. That turn of phrase comes from Justice Oliver Wendell Holmes nearly 60 years later, in 1919, with his dissent in Abrams. Second, On Liberty came out in 1859, the same year Darwin published On The Origin of Species, and it wasn’t until economics became a discipline in the late 1800s that concepts of marketplace as a method of evolutionary competition took hold. It is tough to read Mill and find the metaphor of the marketplace, but in employing this anachronistic turn of phrase, Tufekci reminds us that markets aren’t perfect, necessitating regulations.

Speaking on this topic, David Cole of the ACLU explained, “But the marketplace is a metaphor. It describes not a scientific method for identifying truth but a choice among realistic options.” It is on this point that John Stuart Mill was concerned. Mill’s work advances a far more complex theory, and it is one that actually does open a line of questioning worth pursuing with regards to the platforms of today.

To begin, Mill wasn’t concerned so much with freedom of speech and the press as much as he was concerned with freedom of diverse thought. In Cole’s words, he was concerned with choice among realistic options. In the opening of Chapter 2, Mill dismisses arguments for freedom of expression “as one of the securities against corrupt or tyrannical government” and instead seeks to base freedom of expression in service of individual self-development, an argument made throughout the book. This is why he begins the book with a quote from Wilhelm Von Humboldt, which nicely summarizes the aim of the manuscript: “The grand, leading principle, towards which every argument unfolded in these pages directly converges, is the absolute and essential importance of human development in its richest diversity.”

Moreover, for Mill, free speech doesn’t always provide a method to elevate the truth. He was clear about this when he said:

Indeed, the dictum that truth always triumphs over persecution is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes. History teems with instances of truth put down by persecution.

Mill largely argued for freedom in thought as a means of human flourishing. But, to fully understand Mill’s project and what human flourishing meant, it is useful to understand that his essay addresses other classical liberal thinkers, and especially Jeremy Bentham, his mentor.

Mill writes:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion.

Tufekci’s pillorying of Mill seems off, since the line of questioning that Mill pursues is very similar to hers. Mill explores how public opinion can act as a coercive force on the individual. Tufekci does the same, but for platforms: “Online speech is no longer public in any traditional sense.” The public sphere has fragmented, she explains, becoming “a set of private conversations happening behind your back.” Mill echoes this sentiment: “the yoke of opinion is perhaps heavier, that of law is lighter.”

Mill and Tufekci parts ways in how this conflict is to be resolved. Mill, who lived through the Victorian times, worried that custom had become stifling, that people didn’t have “any inclination, except for what is customary.” He continues, “Thus the mind itself is bowed to the yoke: even in what people do for pleasure, conformity is the first thing thought of; they like in crowds; they exercise choice only among things commonly done.”

Tufekci, however, wants to create a new kind of custom, to move away from the “peculiarity of taste, eccentricity of conduct” that Mill was trying to spark. For her, what is needed for free speech in the digital age are new methods of social coercion. The choice quote on this comes at the end with emphasis added: “Fostering a healthy, rational, and informed debate in a mass society requires mechanisms that elevate opposing viewpoints, preferably their best versions.”

Counteracting mechanisms are needed. In a word, regulation.

The obviousness of free-speech regulation

To her credit, I think Tufekci is forthcoming in outlining what kinds of mechanisms would be needed to elevate opposing viewpoints. Indeed, she says it plainly: “There are few solutions to the problems of digital discourse that don’t involve huge trade-offs—and those are not choices for Mark Zuckerberg alone to make. These are deeply political decisions.” It is telling that to get to the place that she and others want would require massive costs. This isn’t a marginal change, as Facebook is doing now, but a fundamental shift.

But rooting these changes in U.S. law isn’t going to be easy. In the U.S., it isn’t the case that “free speech is usually understood as a vehicle—a necessary condition for achieving certain other societal ideals: for creating a knowledgeable public; for engendering healthy, rational, and informed debate; for holding powerful people and institutions accountable; for keeping communities lively and vibrant.” Rather, freedom of speech is subject to the most stringent form of judicial review by U.S. courts, known as strict scrutiny. For a policy to pass the courts, it has a high bar and must be “narrowly tailored to serve a compelling state interest.” Strict scrutiny doesn’t just apply to issues of free speech, it also drove the decisions in NAACP v. Alabama, Loving v. Virginia, Kramer v. Union Free School District, and Shapiro v. Thompson, which helped to expand constitutional protections for individual rights.

Given this background, I think Tufekci needs to deal with the very real legal problems that her ideas will face. What she suggests has been tried in various forms, only to fail when arriving at the highest court. As Eugene Volokh noted, the Supreme Court has held that there aren’t compelling government interests in “equalizing the relative ability of individuals and groups to influence the outcome of elections,” in “reducing the allegedly skyrocketing costs of political campaigns,” in “preserving party unity during a primary,” and in protecting speakers who “are incapable of deciding for themselves the most effective way to exercise their First Amendment rights.” The Supreme Court has long been unforgiving of these kinds of arguments, and there is no reason to think that has changed.

To put a fine point on this issue of being narrowly tailored, there isn’t a strong case to be made that social media platforms were the primary cause of all the deleterious things she points out. If these platforms were so coercive, there should be strong evidence of their ill effects. But the evidence is muddled. Social media is among the least likely places people get their news. People consume news from all kinds of sources, including newspapers, radio, local news, cable news, and online journalistic outlets. Surveys find that it is rare for users to discuss, comment, or post about politics online. And those that do go online to discuss politics are nearly guaranteed to be more partisan and thus unlikely to change their position. Fake news seems to have been concentrated among the most conservative users, who aren’t exactly swing voters. Still, social media networks aren’t as ideologically homogeneous as some have worried. The echo chamber effect is overstated. Most political conversations arise in casual settings with acquaintances. The list goes on.

This is why I part ways with Tufekci. One can take a hard stance against Russian meddling without deriding the entire enterprise of social media as the salt, sugar, and fat of human communities. One can be worried about civility online without suggesting a fundamental change in First Amendment law is needed. One can also see the fallibility of humanity, which is sometimes embodied in social media, without claiming that online networks are “far too compatible with authoritarianism, propaganda, misinformation, and polarization.”

Yes, there are problems with online spaces, but they aren’t fundamental. The punishment just doesn’t fit the crime, especially since the punishment calls for a wholesale rewrite of Constitutional law.

The European context

While the U.S. does have among the most permissive free speech laws in the world, European countries often restrict speech for the purposes that Tufekci lays out. Yet, one cannot help but find some of the results perplexing and troubling.

In France in 2015, the highest court upheld a lower court’s decision to fine promoters of a boycott against Israel $14,500. The decision rested on France’s Freedom of the Press law, which provides that those who “provoke discrimination, hatred or violence toward a person or group of people on grounds of their origin, their belonging or their not belonging to an ethnic group, a nation, a race or a certain religion” are subject to imprisonment or fines of up to $50,000. During 2016, France also shut down 20 mosques to combat extremism.

In Poland, under a new law, anyone suggesting that the country was complicit in the Holocaust could face fines or even imprisonment. The government has kept the language of the bill intentionally vague, allowing courts to classify a broad range of content as a danger to the “dignity of the Polish nation.”

And in Germany, to back up their hate speech laws, police action is needed. As the The New York Times reported last year, “In a coordinated campaign across 14 states, the German police on Tuesday raided the homes of 36 people accused of hateful postings over social media, including threats, coercion and incitement to racism.”

In the U.K., a young Muslim man was sentenced to 240 hours of community service for posting angry comments on Facebook about British soldiers in Afghanistan that “should die and go to hell.” He was convicted under section 127 of the Communications Act 2003 for making “grossly offensive comments.”

Given the troubles they faced in the 20th century, it shouldn’t be surprising that European countries have become militant democracies, vesting power in the judiciary to defend the liberal democratic order. Still, the reactions seem disproportionate to the offenses, as well as misdirected. In practice, ideal applications of the law are tough to find. That’s because governments need a wide latitude to prosecute vague threats.

The U.S. hardly has a sellar record here; in the past our government has been excessively parochial. The Sedition Act of 1918 made illegal the expression of opinion that was negative of the war effort, but it was used against union workers. The Communist Control Act outlawed the Communist Party of the United States. In 1996, the Communications Decency Act was passed, which prohibited a broad swatch of indecent online communication in an effort to uphold community standards. Everyone should be deeply skeptical of granting government wide latitude to bolster community cohesion.

As the ACLU’s general counsel David Cole put it, “It is virtually impossible to articulate a standard for suppression of speech that would not afford government officials dangerously broad discretion and invite discrimination against particular viewpoints.” To accomplish what Tufekci and others want, a full scale assault on the laws undergirding free speech needs to commence. I cannot help but think that the casualties of that war will be all minority opinions, not just the ones we are concerned with now.