Vol. 30 No. 11 (December 2020) pp. 165-169THE PERILOUS PUBLIC SQUARE: STRUCTURAL THREATS TO FREE EXPRESSION TODAY, by David E. Pozen (ed.). Columbia University Press. 408pp. Paper $30.00. ISBN: 9780231551991.
Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: RushM@wlu.edu.
THE PERILOUS PUBLIC SQUARE: STRUCTURAL THREATS TO FREE EXPRESSION TODAY by David Pozen is an important collection of essays—actually, they are essays grouped into seven discrete, but interrelated conversations—on how technology has transformed the scope and definition of speech rights. The principal conclusion one draws from the collection is that the advent of the internet, social media, cyberspace, etc. has precipitated a paradigm crisis akin to what Thomas Kuhn discusses in THE STRUCTURE OF SCIENTIFIC REVOLUTIONS. But, this paradigm crisis in science has caused a separate one in the law. Technology’s democratization of access to and the capacity to produce information has rendered traditional, “terrestrial” notions of liberty and rights less useful if not outright antiquated. Human interactions on terra firma are more limited and easily measurable than they are in the essentially infinite “confines” of cyberspace.
THE PERILOUS PUBLIC SQUARE is, therefore, somewhat mis-titled. The discussions do not simply address threats to free expression. In addition, it is clear that technology has amplified the damage that speech can cause and has altered the traditional manner in which freedom of speech is studied. Speech conflicts are frequently (or, perhaps, have traditionally been) cast in terms of vertical confrontations between the generic dissenter and a government wishing to control the dissenter’s speech and horizontal ones in which the government is called upon to referee conflicts between speakers and those they have harmed through libel, fraud, etc. The conversations in THE PERILOUS PUBLIC SQUARE demonstrate that governmental suppression of dissent is much less of an issue in a cyberworld populated by countless, anonymous sources of fake news and deep fakes. Instead, government is clearly outgunned despite that fact that its role as referee is more necessary as a result of the incalculable, instantaneous damage that those countless, anonymous actors can inflict.
This challenge is addressed especially well in the discussion of Frederick Schauer’s “The Hostile Audience Revisited” in Chapter 2 (“From the Heckler’s Veto to the Provocateur’s Privilege”). Managing such confrontations on terra firma requires grace and good judgment on the part of government officials. In cyberspace, it requires potentially infinite resources since the scope of a cyberconflict is, potentially…infinite.
So, a short review of THE PERILOUS PUBLIC SQUARE could be reduced to a statement as simple as something to the effect of: “Surprise! The utopia envisioned [*166] by John Perry Barlow in his “Declaration of the Independence of Cyberspace” (1996) has deteriorated into dystopia just as quickly and unceremoniously as any other utopia.” The contributors in THE PERILOUS PUBLIC SQUARE look to address (but really do not yet come close to answering) the followup question: “What are we going to do about it?”
In the space of a review, it is neither helpful nor possible to offer a synopsis of each of the seven conversations. Nor is it possible to do justice to the contributions made by some three dozen thinkers who represent a sizable part of the cutting edge of scholarship in this area. Instead, I offer an overview of the principal themes that animate and unite the collection. Perhaps the most common theme addresses whether the First Amendment is obsolete in cybertimes. This is the topic of the opening discussion between Geoffrey Stone and Rebecca Tushnet. Their exchange reads like a scorecard of the new battles confronting scholars of, practitioners of and in, and innocent bystanders and sufferers of collateral damage in and from cyberspace and social media.
We see that the traditional distinction between private and public figures for the purposes of libel analysis no longer holds up well in a cyberworld where anyone can be rendered public involuntarily. This topic informs the final exchanges between Kate Klonick (“Facebook v. Sullivan” and her respondents in Chapter 7 (“Authoritarian Constitutionalism in Facebookland”) as they address how Facebook, Twitter, and other huge internet platforms may be becoming the sources by which legal standards of damage and libel, newsworthiness, etc. are developed and augmented.
On the one hand, there is nothing wrong, a priori, with drawing upon the private sector to develop laws and policies. On the other hand, it is clear that social media platforms wield influence on a scale heretofore unimaginable. Rockefeller and Standard Oil had a monopoly, but the government had sufficient power to break it up. In the infinite realm of cyberspace, private actors such as the platforms possess immeasurable power. How much more immeasurable power would a cybergovernment need to be able to enforce some sort of order in the cybermarketplace? If a government were to attain such power, it would present an unconscionably immeasurable threat to dissenters and other people who were the objects of surveillance.
The scholars in Chapter 4 (“Intermediary Immunity and Discriminatory Designs”) touch upon this while focusing specifically on the failure of Section 230 of the Communications Decency Act to serve as a means of policing cyberharassment. In hopes of promoting discourse, Section 230 rendered platforms essentially free from prosecution for speech posted on their sites. But, they have failed to do any effective policing whatsoever. Accordingly, the number of victims of cyberbullying, deep fakes, and revenge porn proliferates (n.b.: as this review goes to press, Pornhub has announced new restrictions on what it will post). Meanwhile, platforms do little to police such speech while getting entangled in censorship battles about political speech.
[*167] It is in this exchange that Daphne Keller offers perhaps the most important comment in the book: “To outlaw [the kind of hate speech proliferating across the internet], we would need different substantive laws about things like hate speech and harassment. Do we want those? Does the internet context change First Amendment analysis?” (p. 214).
It should not be a problem to answer “Yes.” But, in the context of a discussion of the frustrating failure of Section 230, that answer does not arise. Yet, it is an easy “yes.” The law has changed in the past in response to technically-driven changes in society. This was manifest in Louis Brandeis’s dissent in OLMSTEAD V. UNITED STATES (1928). He chided the majority for turning a blind eye to the impact of the telephone and electronic listening devices on privacy. Almost a century later, the law a faces a similar challenge driven by technology. But scholars seem unable, thus far, to develop a conceptual framework necessary to address what is clearly a paradigm crisis that portends a legal revolution.
A key element of this hesitation may be the absence of useful legal metaphors or precedent that can be applied easily or clearly to the cyberworld. In Chapter 3 (“Straining (Analogies) to Make Sense of the First Amendment in Cyberspace”), Heather Whitney (“Search Engines, Social Media, and the Editorial Analogy”) leads an exchange that picks up where Chapter 1 leaves off. On terra firma, and prior to recent advances in technology, it was rather straightforward to distinguish public from private figures and identify “the press” from other speakers and providers of information. Not anymore. Scholars continue to struggle to decide whether Facebook, Twitter, etc. are “the press,” publishers, or something else. They certainly edit, deliver, and publish news. They are certainly akin to private clubs. But the impact of what they do extends much farther and has exponentially more impact on society that what the male-only Jaycees (ROBERTS V. UNITED STATES JAYCEES (1984)) or racially discriminatory Moose Lodges (MOOSE LODGE V. IRVIS (1972)) may have had. (The platforms do not organize specifically to designate candidates for political office as the Jaybirds did in TERRY V. ADAMS (1953) or the Democratic Party Primary did in SMITH V. ALLWRIGHT (1944). Nonetheless, their capacity to favor or disfavor speech with incalculable consequences on behalf of or at the expense of a candidate or issue certainly compares in form to (and with much greater impact than) the impact of such allegedly “private” organizations. It also compares easily to the impact of independent expenditures that continue to vex legislators and scholars who would draft laws to constrain them as well. Yet, if legislators lack the clarity or creativity to design laws to regulate earthly spending on political issues, it should come as no surprise that they are inadequately equipped to regulate the expansive realm of cyberspace.
Within this discussion, two other exchanges touch upon particular aspects of regulation. “Crisis in the Archives” (Chapter 6) applies an old controversy to the web. Whoever controls what counts as archival material and what can or should be discarded effectively controls history and knowledge. This is no less a [*168] challenge for digital information that it is for physical information. The challenge is correspondingly greater due to, if nothing else, the infinite capacity for digital sources to generate information. Matthew Connelly (“State Secrecy, Archival Negligence, and the End of History as We Know it”) calls for more federal funding to support the work of archivists and for archivists to develop new standards to deal with the scope and nature of digital data. Alas, this exchange reminds us that the more things change, the more they remain the same. Regardless of whether and how government-sponsored archiving is supported, whoever controls the government will have a disproportionate control over what is important enough to be archived and, therefore, what counts as “history.” Fortunately, the world can also count on its universities to play a role in preserving information. But, they also experience changes in leadership and exercise of archival discretion.
In closing, I touch upon Chapter 5 (“The De-Americanization of Internet Freedom”). Jack Goldsmith (“The Failure of Internet Freedom”) criticizes seemingly hypocritical US policies that promote internet freedom while maintaining the need to ensure internet security. These two policies can certainly clash. US policies manifest partisanship despite promoting the need for a free market of internet information. But, I think that charging the US with hypocrisy is a bit hyperbolic. No country exercises control over cyberspace. Using the marketplace analogy (that seems to work well on terra firma) does not work well in cyberspace. No power yet exists to design and enforce regulations. There is no cyberstate. So, cyberspace is the equivalent of the “wild west” or the “high seas.” Everyone is potentially a pirate and no one, as yet, has accumulated the power necessary to act as a Hobbesian Cyberleviathan.
With that reference, I bring this review to a close. THE PERILOUS PUBLIC SQUARE is a thought-provoking, important collection of conversations that embody and manifest the complexity of the challenges that cyberspace presents to “terrestrial” legal thought. It makes clear that legal scholars will have their hands full as they look to design new laws to grapple with speech in cyberspace and laws to constrain the Cyberleviathan that may be necessary for their enforcement.
CASES:
MOOSE LODGE NO. 107 V. IRVIS, 407 U.S. 163 (1972).
OLMSTEAD V. UNITED STATES, 277 U.S 438 (1928).
ROBERTS V. UNITED STATES JAYCEES, 468 U.S. 609 (1984).
SMITH V. ALLWRIGHT, 321 US 649 (1944).
TERRY V. ADAMS, 345 U.S. 461 (1953).
REFERENCES:
[*169] BBC.COM. 2020. “Pornhub Bans User Uploads After Abuse Allegations.” https://www.bbc.com/news/technology-55304115.
Barlow, John Perry. 1996. “Declaration of Independence in Cyberspace.” https://www.eff.org/cyberspace-independence.
Kuhn, Thomas. 1962. THE STRUCTURE OF SCIENTIFIC REVOLUTIONS. Chicago: University of Chicago Press.
© Copyright 2020 by author, Mark Rush.
