Over the past decade, we have had an increasingly vocal debate about the responsibility of platforms and the future of freedom of expression. It may be worth pausing to reflect on the main lines of that debate, especially as it is likely to intensify following the various decisions taken on President Trump’s online presence. It is not unbelievable that in 2021 we will see that debate increasingly evolve around legislation, especially as the EU has proposed legal rules on what are called Very Large Platforms and Gatekeepers .
It is also worth spending a few minutes thinking about what the basic problem here really is. Why do we have this discussion? Part of the answer to that question is about how technology has come to affect freedom of expression in general, and what role freedom of expression actually plays in our society.
If we look at the functions of freedom of expression, we can quickly realize that it has at least two very important functions.
One is to help us jointly discover new ideas and opinions that can lead society forward, help us to think critically about various problems and draw our attention to lines of conflict that need to be resolved. This function – freedom of expression as a market of ideas – can loosely be said to be the one that has gained the most ground in the United States, where the first amendment and jurisprudence largely assumes that this marketplace of ideas must be safeguarded.
The second function is more complex, and entails that freedom of expression is required for reason and debate, followed by decisions on how we should proceed as a political community. Freedom of expression is a prerequisite for our joint analysis and our common considerations. It has, in addition to being a pure mechanism of discovery, also an important deliberative function to play. This view of freedom of expression as the regulatory framework that maintains and enables public discourse and the public sphere in a kind of Habermas sense, is more European.
When we say that Europeans have a more restrictive view of freedom of expression and look more negatively at hatred and threats, it is actually an observation of how Europe places a deeper emphasis on the deliberative than the pure mechanism of discovery that freedom of expression also allows.
This is of course a simplification. There are other differences as well, but I still claim that it is an interesting simplification to think about. The reason is that we – if we accept this model – can ask the question of how technology then affects the two different functions of freedom of expression. The answer is interesting: technology strengthens the ability to express oneself and thus the mechanism of discovery, but with the abundance of opinions, ideas and other things that follow, our common ability for deliberation and political conversation in the public sphere is also eroded.
Much of the new freedom of expression is oriented around what are today calling platforms – large technical systems that enable individuals to interact in different ways. The platforms have greatly expanded freedom of expression, and today we enjoy the opportunity to express ourselves in a way that can reach the whole world.
This was hailed early as a “democratization” – and I also hope it would be – but it was a conclusion that skipped a couple of stages. Above all, we assumed that there was a linear relationship between freedom of expression and the quality and content of a democracy. In addition, it was assumed that freedom of expression was an institutionless social function that could be reduced to the opinion itself, without also thinking about the institutions in which it was embedded. It was a surprisingly naive view, which was mainly rooted in the fact that we were affected by a kind of historical institutional blindness: we did not see that earlier societies’ freedom of expression existed in various very complex institutions.
John Stuart Mill, who is generally considered to have formulated the sharpest and most interesting argument for a total freedom of speech, writes de facto on freedom of the press – and therefore assumes that we discuss the question of what can be printed in a newspaper with a certain circulation, a readership with certain social properties, a certain education etc. The chapter begins clearly with a discussion of freedom of the press:
“THE TIME, it is to be hoped, is gone by, when any defence would be necessary of the “liberty of the press” as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear. This aspect of the question, besides, has been so often and so triumphantly enforced by preceding writers, that it need not be specially insisted on in this place. Though the law of England, on the subject of the press, is as servile to this day as it was in the time of the Tudors, there is little danger of its being actually put in force against political discussion, except during some temporary panic, when fear of insurrection drives ministers and[Pg 29] judges from their propriety; – JS Mill
There is no argument in Mill for a general, unlimited and institutional freedom of expression.
The problem of freedom of expression is also discussed in this context by Simone Weil, who in her book on how to construct a just society, advocates the creation of a sphere where anything can be said:
”That is why it would be desirable to create an absolutely free reserve in the field of publication, but in such a way as for it to be understood that the works found therein did not pledge their authors in any way and contained no direct advice for readers. There it would be possible to find, set out in their full force, all the arguments in favour of bad causes. It would be an excellent and salutary thing for them to be so displayed. Anybody could there sing the praises of what he most condemns. It would be publicly recognized that the object of such works was not to define their authors’ attitudes vis-à-vis the problems of life, but to contribute, by preliminary researches, towards a complete and correct tabulation of data concerning each problem. The law would see to it that their publication did not involve any risk of whatever kind for the author.” – Simone Weil
But she does not stop there – she realizes, with World War II as an open wound in French society, that her position is impossible if it is not supplemented with responsibility:
”On the other hand, publications destined to influence what is called opinion, that is to say, in effect, the conduct of life, constitute acts and ought to be subjected to the same restrictions as are all acts. In other words, they should not cause unlawful harm of any kind to any human being, and above all, should never contain any denial, explicit or implicit, of the eternal obligations towards the human being, once these obligations have been solemnly recognized by law.” – Simone Weil
She then notes that this opinion is indeed impossible to formulate in legal terms, at the same time as it is quite clear to her – and that the problem rather lies in institutionally formulating the limits of which opinions we really mean and should take responsibility for and which we only try:
”The distinction between the two fields, the one which is outside action and the one which forms part of action, is impossible to express on paper in juridical terminology. But that doesn’t prevent it from being a perfectly clear one. The separate existence of these two fields is not difficult to establish in fact, if only the will to do so is sufficiently strong. It is obvious, for example, that the entire daily and weekly press comes within the second field; reviews also, for they all constitute, individually, a focus of radiation in regard to a particular way of thinking; only those which were to renounce this function would be able to lay claim to total liberty.” – Simone Weil
Weil’s position here seems to open up to the obvious argument that the web can be the place where we mean nothing and the press can retain the part of the public sphere where we stand behind and take responsibility for what we write – a kind of dividing line in society between utterance and opinion formation as Weil suggests.
However, we do not have such an institutional order, and it is difficult to imagine how it would even be possible. The public sphere is a kind of common property in society that we can not divide arbitrarily into different zones. However, freedom of expression must always be situated in an institutional context.
Freedom of expression without institutions in a time where information and communication technology is advancing rapidly reaches a point where we feel that something must be done. But this something is not well defined, and when it comes to freedom of expression, it falls into two different, conflicting positions.
The first is that the platforms are essential in the modern information society and that they have a moral responsibility to ensure that the content made available to them is not only legal, but also morally justifiable. The platforms must work to remove content that is offensive, harmful, hateful or otherwise contrary to various moral principles.
The second is that the platforms are essential in the modern information society and therefore must not place any moral values on the content made available through them at all, but instead work under a contractual obligation . The only legitimate basis for taking down content and making it unavailable is if it is illegal, and then one must do it urgently.
Within the EU, there are representatives of both these views. The European Commission represents the first, and a recent bill in Poland represents the second.
The consequent question then naturally becomes which of these positions is to be given priority.
When it comes to illegal content, there is no real debate. Everyone agrees that such content should be removed when a platform becomes aware that there is such content on the platform – what the discussion is about there is instead how this knowledge should be considered to have arisen. For example, should there be a general obligation for a platform to monitor everything made available by pre-filtering, or should the platform act only when someone notices the platform’s illegal content?
As in all debates, there are nuances – an active operation to detect child pornography can, for example, be combined with a so-called “notice and take-down” principle for pirated material. But the basic principle is clear. Illegal content must be removed, promptly. Another nuance that is not unimportant is who decides that content is illegal – where opinions vary from requiring a court decision to the platforms themselves having to make this assessment, and in that matter it is about balances between legal certainty, efficiency and urgency.
But, back to our question about the platform’s responsibilities: which of the two positions should apply? Should platforms only remove illegal content or, in addition to this indisputable responsibility, do they also have a moral responsibility for the content on their own platform?
There is a trap here, and it is to assume that this is a logically necessary dichotomy – that it must be one or the other. Instead, it is of course entirely possible to imagine that we limit moral responsibility to a certain number of issues and allow a number of different principles to be developed within the framework of this responsibility, through repeated and in-depth application of these principles. Many have pointed to the journalistic model as a way forward – where newspapers make a moral assessment in connection with the purely legal assessment. By virtue of the slowly accumulating material of assessments one has, one can then argue that good practice is emerging and that this can be a guide for the entire industry.
It is a model that it has taken the press a long time to arrive at, and violations of this custom are committed at regular intervals. The early press in the United States was, as well described in the book Infamous Scribblers: The Founding Fathers and the Rowdy Beginnings of American Journalism by Eric Burns, in which he concludes by saying that America has turned away from its founding fathers in an important respect:
”But we have not adopted their style of journalism. We do not, in most of our print and broadcast news sources, impugn character as they did. We do not, except in extraordinary cases, use the kind of language they did. We do not, except on well-publicized and wellpunished occasions, make up the news to suit our ideology. It is a rare example of our turning our backs on the Founding Fathers, finding them unworthy, rejecting their legacy. We are to be commended.” – Eric Burns
The press developed and grew into its role and built its institutions over time, over a long, long time.
Is not the same thing possible for the platforms? Certainly! And the frameworks are already being built in the European Commission’s recently proposed law package for platforms – the Digital Services Act and the Market Act. These legal packages lay down rules, especially the Service Act, on how the platforms should handle the content made available to them and set limits on moral responsibility by requiring both opportunities for appeal, review and transparency in the process. When this proposal becomes a reality, the major platforms will be more regulated than today’s press, while continuing to develop their own departments to moderate content.
They will have more responsibility for how they make decisions, with clear audit rules and openings for outside assessors to make assessments of how they handle their own rules. Their practice will be more accessible and transparent than the journalistic assessments made in the major newspapers.
The platforms will probably reach a point where they are better suited for public discourse than today’s media, and will probably reach this point faster than the press reached its current ethical position and quality.
An open question is whether they become a lesser threat to the economy of the press in connection with that development, or whether the calls for responsibility and order that are now being raised actually pave the way for an institutionally robust public sphere that rests on the foundations of the platforms.
Yes, but. How do we think about Trump and terror? About hatred and threats? About deplatforming? All of these questions require institutional answers. The big problem is that we have focused on individual content instead of the context and institutional reality in which the platforms operate and support.
And here it is worth saying a word about the idea that the platforms are only possible on the basis of business models that can not survive this institutional maturity, that they are based on us hating and threatening and being sucked into a general public anger that drags us down in polarization and violence – a thought that could just as easily have been thought at the beginning of the press. In fact, the business model of the media became better because it was embedded in ethics and an institutional framework, it became stronger and more sustainable over time. Sure, the press still lives on the tickling of the sensation and “if it bleeds it leads” and the click economy sometimes controls modern newspapers so hard that they seem to be re-formed in the early layers of the press’ evolution, but overall the press only won by being provided with the regulations under which it currently lives.
The long arc of history ties towards institutions, regulations and stability for the platforms, and thus also towards a slow reconstruction of the public sphere. But there is an outstanding problem, and that is how we handle public discourse when it grows too large.
How big can the public conversation be? How many people can make decisions together? If we look at parliamentary sizes, we see that they are very limited, in the order of 100-1000 people who decide for an entire country. How many people can have a meaningful public conversation? Do we have any reason to believe that there are more than that?
Maybe we are limited by the Dunbar number – 100-230 social contacts is what our brain size suggests we can handle if we compare with other primates – or we can be many more than that, but it does not seem obvious to assume that democracy scales especially good. Representative democracy emerged for a reason, but is not currently matched by a representative public sphere – instead, today we stand in a square that we cannot see the end of and shout with others.
The natural consequence is that we unite according to other, basic principles. We look to others who think like us, because historically it has been the way we handled knowledge. As the author Julia Galef notes, the brain has not evolved to find out what is true – but instead it has evolved to find out what is new, as a scout, or to find out what unites us, as a soldier. When the square expands towards infinity and there are no institutions for us to lean on, we stagger back into the mechanisms of evolution.
What we really need are new technology and new institutions that not only distribute, but also allow us to discuss the world. It’s not simple, but it’s hardly impossible.
We summarize:
Do platforms have a responsibility for what they make available? Yes, absolutely. Both legally and morally. Moral responsibility is increasingly captured in customs that will emerge in the coming decades, as fast as or faster than the customs of the press emerged.
What does it mean in the long run? That they may slowly turn into better bearers of the public sphere than the media that exist today. But probably that they merge with them and that powerful hybrids develop.
What are the remaining problems? We must try to understand the biological and social constraints that govern how the public sphere is constructed and maintained. How big it can be, how it can include diversity and differences of opinion.
Is there reason to be optimistic? Absolutely. History gives us reason to believe that we can develop institutions to handle information and communication, and that the long line of development leads to a society where we learn faster and reach solutions to the eternal political problem of how we live together better and better.
This article was originally published on Unpredictable Patterns.
