We Must Fight the Temptation to Regulate Online Speech At All Costs | Opinion

At a time of intense political polarization, there is one topic that Republican and Democratic lawmakers seem to agree on: that something must be done, and quickly, to sanitize the online ecosystem. Democrats want to diminish hate speech and disinformation, while Republicans demand a halt what they contend is censorship of conservative views, and proposed legislation was piling up in congress well before the election. But in the aftermath of the January 6 riot in Washington D.C. and the de-platforming of Donald Trump from his favorite online haunts, all sides are more resolved than ever to stop letting the social media platforms regulate themselves.

No less than thirty proposals are knocking around Washington (with more popping up in statehouses), while think tanks are stuffing inboxes with plans to "safeguard democracy" with new rules channeling the movement of news, opinions, and information online. Some proposals look to eliminate Section 230 of the Communications Decency Act, the platforms' key liability shield for user generated content. Other plans like the SAFE TECH ACT recently proposed by Sens. Mark Warner and Amy Klobuchar, add exceptions to Section 230, while still others condition the law's shield on the platforms' revision of their content moderation policies or ad sales practices, on FTC certification of their "political neutrality," or on limiting platform amplification of false and extremist content. While it's anyone's guess which bill will pass and survive challenges in court, the days of tech companies having full reign over their platforms may soon be coming to an end.

But while they seek to solve real problems like hate speech and disinformation, many of the proposed solutions bring serious risks that they will hinder legitimate speech. These are on full display in other countries that don't have the pesky First Amendment to get in the way, many of which have already implemented new laws to force bad behavior off the internet. What they provide is a cautionary tale for us here in America about the pitfalls of using online speech speech regulation to solve society's problems.

Authoritarian regimes worldwide have been passing prohibitions against fake news and using them to suppress inconvenient truths. After the human rights group Lawyers for Liberty exposed Singapore's brutal execution methods last year, the government deployed its new fake news law to block the group's website. Several opposition politicians were also forced to mark their social media posts with banners stating that they contain false information.

Meanwhile, Egypt has used its fake news law to jail 19 journalists in 2018, while two women who uploaded videos on Facebook decrying government inaction against sexual harassment were arrested. One was sentenced to eight years in prison.

The coronavirus pandemic has operated as a pretext to further lean into these kinds of abuses. Egypt revoked a Guardian reporter's press credentials for an allegedly "false" story that questioned official statistics about the virus's spread. A few months later, the prominent journalist Mohammed Monir was arrested for critical reports about the pandemic. He later died in prison of the virus. Along similar lines, a whistleblower in Thailand was charged for a Facebook post about medical supply shortages and related corruption, while an artist there was arrested for posting about inadequate virus screening at Bangkok's airport. And Philippines' President Rodrigo Duterte used a new "false information" prohibition to arrest dozens of people, including two online journalists who made the mistake of sharing a local mayor's posts about the virus.

Meanwhile, Azerbaijan tightened its repressive press laws even further during the pandemic to criminalize false information causing "socially dangerous consequences." Thus armed, the government arrested a journalist for social media posts about the pandemic's social and economic impacts. And soon after the pandemic's outbreak, Cambodian authorities arrested 17 people for comments about the virus, including members of the dissolved opposition Cambodia National Rescue Party and a teenage girl who posted about her fears regarding positive diagnoses in her area.

It's chilling to imagine what Trump, who dispensed falsehoods by the thousands and dismissed unwelcome news as untrue, would have done with a law criminalizing fake news. But it's not only misinformation that's been the target of laws that have been repurposed to curtail civil rights. Hate speech, too, is driving many demands for online speech regulation. And yet, these efforts, too, have fallen prey to similar abuses as the attempts to prohibit fake news.

internet censorship

Hate speech laws take many forms—Turkmenistan prohibits literature that incites what it calls religious hatred. Macedonia bans speech causing "national, racial or religious hate, discord and intolerance." Germany criminalizes speech that "incites hatred against segments of the population" or "assaults ... human dignity." These laws all attempt to draw a line between allowing open debate and preventing the harm hate speech can potentially cause to vulnerable communities. But many governments don't trouble over the fine points, choosing instead to "use hate speech, like 'fake news,' to attack political enemies, non-believers, dissenters and critics," according to the UN Special Rapporteur on Freedom of Expression.

Hate speech laws have been used to bury dissent in authoritarian countries, but the temptation for abuse has also afflicted democracies. Spain has used its law against "glorifying terrorism" to arrest supporters of Basque independence, including one person given a one-year prison sentence in 2018 in part for a tweet expressing sorrow at the death of a separatist fighter, as Amnesty International documented in a report entitled, "Tweet ... If You Dare." A student was also arrested for tweeting jokes and memes ridiculing a former prime minister. In Britain, a young Muslim man was convicted in 2012 for a "racially aggravated" Facebook post against the UK's military presence in Afghanistan, saying British soldiers should "Die & Go to Hell!" while a man was convicted in 2018 for uploading a video of his dog raising the Nazi salute.

Germany takes the most aggressive approach among democracies against online hate speech. Its 2017 Network Enforcement Act (NetzDG) requires large platforms to remove "obviously illegal"—including hateful—content within 24 hours of notification or face fines of up to 50 million euros. Despite the complaints of free-speech advocates, NetzDG-type laws has been adopted in at least a dozen countries, although the French courts recently struck down such a law, noting that it forced platforms to remove content without a judge's input, and in rushed timeframes that risked excessive speech takedowns. Germany is pressing forward with a controversial expansion to NetzDG that will require platforms to proactively report egregious hate speech to police—again with no judge involved.

NetzDG is in part the inspiration for the UK's ambitious Online Safety Bill(OSB), which Parliament will likely vote on this year. The intention is to make Britain "the safest place in the world to go online," for which the price will be a significant erosion of speech freedoms. Under a new legal duty of care, certain large social media companies, search engines, private messaging systems, cloud storage sites, and other platforms will be required to remove material that could foreseeably cause anyone in Britain significant psychological harm—even if it would be perfectly legal when voiced in print or on the street. The potential penalties for violations include massive fines or even shutdowns of service. The British government took pains to assert that the OSB will not restrict freedom of expression, but that is exactly what this new two-tiered approach to speech does.

Unlike the UK or Germany, the U.S. has the First Amendment to check such overreaching plans. Any law restricting legal speech would be struck down, and, like it or not, most hate speech and forms of fake news are legal here. Any attempt to set up a governmental speech overseer such as Britain's Ofcom—or the FTC—would be likely laughed out of an American court.

The pitfalls of direct online speech regulation are unfortunately unavoidable. All regulation is political, and while Big Tech has botched its stewardship of the online public square, laws regulating speech carry too much danger that they will be used to silence truth and disrupt legitimate discourse. The Constitution's allergic reaction to government interference with speech, exasperating as it is with so much destructive material online, benefits the U.S. by preventing the mistakes and overreach occurring elsewhere.

Eric Berkowitz practiced intellectual property and business litigation in Los Angeles. He is the author of Sex and Punishment: Four Thousand Years of Judging Desire, The Boundaries of Desire: A Century of Bad Laws, Good Sex, and Changing Identities, and Dangerous Ideas: A Brief History of Censorship in the West, from the Ancients to Fake News, which is forthcoming in May from Beacon Press.

The views expressed in this article are the author's own.