Fire in a Crowded Theater: Failing Free Speech and the Manufacture of Consent

“Under the impact of propaganda, not necessarily in the sinister meaning of the word alone, the old constants of our thinking have become variables. It is no longer possible, for example, to believe in the original dogma of democracy; that the knowledge needed for the management of human affairs comes up spontaneously from the human heart. Where we act on that theory we expose ourselves to self-deception, and to forms of persuasion that we cannot verify. It has been demonstrated that we cannot rely upon intuition, conscience, or the accidents of casual opinion if we are to deal with the world beyond our reach.”— Walter Lippmann, Public Opinion (1922)

OK to change Section 230, Facebook, Twitter CEOs say, but how remains  elusive

In Senate hearings earlier this week, Senator John Kennedy (Louisiana) congratulated Jack Dorsey of Twitter and Mark Zuckerberg of Facebook for founding “extraordinarily successful companies,” which, he noted, enjoy “enormous power” that flows from success. “You’re not companies,” he remarked, “you’re countries,” adding, importantly, “at least in terms of power.” 

The Senator then lay a trap.

“Mr. Dorsey, do you believe everything you read?”

Dorsey: No.

Kennedy: Why not?

Dorsey: I think it’s healthy to have skepticism about everything and then have a mindset of verifying it and using as much information as possible to do so.

Kennedy: Do you have somebody on your staff who protects you from reading things that they think you shouldn’t?

Dorsey: No.

Senators take aim at Mark Zuckerberg and Jack Dorsey. - The New York Times

Kennedy then turned to Zuckerberg: “Mr. Zuckerberg, do you believe everything you read?”

Zuckerberg: No, Senator.

Kennedy: Why not?

Zuckerberg: Because of a lot of things are incomplete or incorrect.

Kennedy: So you exercise your own judgment?

Zuckerberg: Yes, Senator.

Kennedy: Okay. Do you have somebody on your staff whose job is to filter things that they think you should not be reading?

Sensing where Kennedy was going, Zuckerberg responded with: “Senator, not externally, although I would hope that the teams that I work with internally do their best to make sure that the information that they’re presenting me with are always accurate.”

Kennedy then asked, “What if your companies had a rule that said, ‘Okay, people aren’t morons. I would like to treat people as they treat me. That is that I can read what I want to read and exercise my own good judgment about whether I choose to believe it, so here’s the rule we’re adopting. If you go on Twitter or Facebook, you can’t bully people. You can’t threaten people. Maybe this is a subset of both of those, but you can’t commit a crime with your words, and you can’t incite violence. But other than that, you can print any damn thing you want to, and we’ll let our users judge.’ Give me your thoughts on that.”

After indulging Dorsey by allowing a rambling defense of Twitter policies, Senator Kennedy put the same question to Zuckerberg.

Zuckerberg: Senator, in principle, I agree with what you are saying, although I think that there are more categories of harm than just the ones that you’ve mentioned. But I think the basic principle behind what you’re saying is a definition of free expression that says that people should be able to share their opinions broadly, except if it’s going to cause imminent or irreparable harm to another person, which even the most ardent first amendment supporters agree that you shouldn’t be able to yell “fire” in a crowded theater if there’s not actually a fire, because that could put people in the risk of imminent harm. So, you mentioned terrorism, you mentioned child exploitation and bullying as forms of harm, and I think a lot of the debate is around what are other forms of harm? For example, we’re in the middle of a pandemic, and we’ve assessed that misinformation about COVID and treatments that could put people in additional risk of getting the disease or not seeking the right treatment if they have it, that those are also things that could cause imminent harm. We’ve taken the position that select—

“Mr. Zuckerberg, let me interrupt you.” Having sprung the trap, Kennedy lowered the boom: “I’m not saying you’re wrong by doing what you just described, but that makes you a publisher, and that creates problems with Section 230.”

What is Section 230? Section 230 is a provision in what is popularly known as the Communications Decency Act, or, formally, Title V of the Telecommunications Act of 1996, that provides immunity from liability for providers and users of content on platforms, what is called an “interactive computer service,” who host third-party information. The statute specifically states: “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.” In other words, a service such as Facebook is, in effect, a bulletin board where users post content. Facebook doesn’t exercise editorial discretion over what is posted, and therefore is not a publisher responsible for the content provided. At least that is supposed to be the way it works. By allowing some content while excluding other content, content that is protected speech under the First Amendment to the US Constitution, Facebook exercises editorial control and is thus actually a publisher of content. As a publisher of content, it is liable for that content.

Kennedy had remarked at the beginning of his questioning, “You’re not companies, you’re countries.” Indeed, as I argued in “Defending the Digital Commons,” for Project Censored, the practical outcome of allowing monopolies to censor speech is that, in a world run by private corporations, if we allow that, i.e. corporations acting as de facto government authorities, there is no legal guarantee of free speech. The social media giants must therefore be brought under the control of the sovereign (the people organized as nation-state) and compelled to adhere to the standards of free speech enshrined in the US Bill of Rights, the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the Universal Declaration of Human Rights (UDHR). Governments must recognize social media platforms as public utilities and places of accommodations, open and public services or spaces operated by private entities with a legal obligation to respect the established rules of civil authority and civil rights. Either these companies operate under the logic of Section 230, or they lose immunity from liability for content.

I cited the ECHR, ICCPR, and UDHM because this is a global struggle. There is a system of international norms and rights established by the Westphalian system. In a report published by the University of Michigan, “‘Extremely aggressive’ internet censorship spreads in the world’s democracies,” a University of Michigan team used Censored Planet, an automated censorship tracking system launched in 2018 by Roya Ensafi, to collect more than 21 billion measurements over 20 months in 221 countries in order to show that the free speech rights of citizens of the world’s freest countries are threatened by power of interactive computer services.

“What we see from our study is that no country is completely free,” said Ram Sundara Raman, one of the authors of the report. “Today, many countries start with legislation that compels internet service providers to block something that’s obviously bad like child sex abuse material. But once that blocking infrastructure is in place, governments can block any websites they choose, and it’s usually a very opaque process. That’s why censorship measurement is crucial, particularly continuous measurements that show trends over time.” He argues, consistent with international norms and rights, “We imagine the internet as a global medium where anyone can access any resource, and it’s supposed to make communication easier, especially across international borders,” he said. “We find that if this upward trend of increasing censorship continues, that won’t be true anymore.”

“I just think one point of view is that, at some point,” Senator Kennedy continued, “we’ve got to trust people to use their own good judgment to decide what they choose to believe and not believe and not try to assume that we’re smart and they’re stupid, and that we can discern believable information and information that shouldn’t be believed, but everybody else is too stupid to do it.”

One of the chief indicators that Zuckerberg is not up for defending the free speech rights of Facebook users is his poor understanding of law and expert opinion in this area. Zuckerberg’s claim that “even the most ardent first amendment supporters agree that you shouldn’t be able to yell ‘fire’ in a crowded theater if there’s not actually a fire, because that could put people in the risk of imminent harm” is a prime example of his ignorance of where thinking is on this matter.

The analogy is well-known and comes from Justice Oliver Wendell Holmes, Jr.’s opinion in Schenck v. United States (1919), a ruling that unanimously upheld the conviction of Charles Schenck, a member of the Socialist Party of Philadelphia, who had organized the mailing of thousands of fliers to young men asking them to resist conscription in World War I, of violating the Espionage Act of 1917. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,” Holmes wrote in his opinion. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Schenck v. United States was sharply curtailed in Brandenburg v. Ohio (1969), a ruling that limited control of speech to that likely to incite imminent lawlessness.

Focus on this notion of falsely yelling fire in a crowded theater. Zuckerberg must mean that Facebook censors false claims. That is what its censors tell you when they label or exclude posts. For example, when users share video of doctors and scientists make claims not authorized by the World Health Organization, they are in some fashion censored. But contradicting the WHO is not necessarily making false claims. Nor were members of the Socialist Party of Philadelphia falsely yelling fire. WWI was very real. There are doctors and scientists who contradict the WHO using clinical experience and scientific research. The Supreme Court Schenck v. United States was not actually combating false claims but claims contrary to powerful interests—the state and corporations to wage war for power and profit. Holmes is not saying that dangerous speech is in itself at issue, but rather that there is justification for censoring false claims that are dangerous—at the same time he is ruling that claims that are neither dangerous nor false may be censored. It is the worst possible standard to advance not just because it is contrary to principle, but also because it is self-contradictory.

However, maybe it’s not out of ignorance that Facebook’s policies are implemented in a manner that functions to perpetuate irrational fear of SARS-CoV-2 by censoring information that contradicts the WHO and other official bodies, or suppress Donald Trump’s vote. Facebook and Twitter (and Google) acted to shape mass opinion in a manner beneficial to the candidate of the transnational corporate elite. They did that by spreading hysteria and defaming the people. By denying access to information, much of the public had to formulate opinion without the benefit of information relevant to its interests.

Because mass reliance upon new media is so great, and because it is more open than old media to viewpoint diversity, it is vital for democracy that social media platforms remain open systems where information may be freely transmitted so that citizens can use their own judgment to form their own opinions and to reach consensus with those who share their interests and values. This is what a public utility would allow for, just as we are free to share ideas in the public square, through the mail, and over the telephone. Facebook and Twitter are no longer utilities operating in that manner. They have become destructive to the open society. They have become key components in the practice of elite hegemony formation.

In the practice of thought control, redirection and the strategic withholding of information is far more effective than telling people what to think. I see this all the time in my line of work. It’s a common tactic in the academy to curate arguments found in sources designated as appropriate while disallowing or disparaging arguments found elsewhere. Gatekeeping and reputationalism shape the parameters of acceptable thought. The attempt to bring in outside views makes one an outsider. The system is reinforced with esteem, money, promotion, and titles. As a result, academics are deeply indoctrinated, overwhelmingly tied to the Democratic Party, reflexively operating on progressive-technocratic assumptions. Alternative viewpoints are excluded or marginalized in educational institutions such that very smart people operate from profoundly fractured consciousness. They neglect their duty. Curious students become problems to be managed, not citizens encouraged to think for themselves.

Media fact-checking is an attempt to translate this practice to the popular realm for the purposes of manipulating mass opinion. “Independent fact checkers” determine what is true and false and thus what can and cannot be heard, read, and seen. It is a view of speech that assumes the public is not up to the task of deciding matters for itself. Social media is a technology elites use to shape mass opinion; it is not for the masses to develop their own opinions and reach a popular consensus. In two influential books, Public Opinion (1922) and The Phantom Public (1925), journalist Walter Lippmann called this the “manufacture of consent.” The masses were, in his view, the “bewildered herd” necessarily controlled by “a specialized class,” his class. In his view, the news is that which is officially-available. Unofficial information should be generally unavailable. The function of the news is to shape public opinion in the interests of the enlightened. In a 1947 article, “The Engineering of Consent,” propagandist Edward Bernays explains how it works in advertising and marketing. This is not democracy, but technocracy.

Reflecting on the power of technocracy, John Livingston and Robert Thompson, in their 1966 The Consent of the Governed, write, “Consent that is thus engineered is difficult to distinguish in any fundamental way from the consent that supports modern totalitarian governments. Were the manipulated voter to become the normal voter, the government he supports could hardly be said to rest on his consent in any traditional sense of that word.” Today, it is desired that the government the voter supports is the corporation. However, the Internet has opened the public up to unofficial and private information. Because the masses use unofficial and private information to develop their own opinions, open and organic systems are dangerous to the interests of the elites, interests that are necessarily antagonistic to those of the people in a capitalist society.

It is not that persuasion is wrong. The problem is power. Power allows for the persuaders, the influencers, to augment argument with strategies of gatekeeping and reputationalism to filter information. This is what makes something propaganda. Dorsey and Zuckerberg’s view of speech is in the tradition of propagandists Lippmann and Bernays, and, as such, profoundly undemocratic and illiberal. Indeed, the view of speech among progressives generally is profoundly undemocratic and illiberal. We see this in cancel culture and political correctness. Progressives are explicit in their rejection of the values of the Enlightenment. They flip principle on its head, claiming that free speech is tyrannical. But progressivism is the technocratic expression of corporate governance. Corporate governance is an expression of bureaucratic tyranny, of state monopoly capitalism, which is not very different from the bureaucratic collectivism of the state capitalism that the Chinese Communist Party calls “socialism with Chinese characteristics.”

This is the Weberian iron cage. Weber told us that the cage would destroy charisma, enchantment, and freedom. Dorsey and Zuckerberg are animals pacing Weber’s cage. You can see the deadening in their expressionless faces.

Published by

Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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