Except that it’s no joking matter when the trio calling for private or public censoring of the Internet include the two leading candidates (at this moment) for leader of the Free World, and the head of the largest search engine and information company on the planet.
The free flow of information and communication of ideas – even repugnant ones – is a hallmark of American democracy. Even “hate speech” has constitutional protection when it offends, insults or attacks. Only when speakers cross over into use of so-called “fighting words,” or make true threats, which must be realistic, intentional and likely to produce imminent harm, does criminal law apply.
The U.S. Supreme Court has a long string of decisions defending speech and speakers that many Americans would like to shut off or shut down, from racist remarks to the hateful messages of a self-proclaimed Kansas church which parades at the funerals of U.S. military.
Yet, within a just a few days of each other:
– Eric Schmidt, the executive chairman of Google, said in an Op-ed piece for the New York Times that in order to fight ISIS and similar terrorist groups’ use of the Internet, his company and others should create algorithmic “tools to help de-escalate tensions on social media—sort of like spell-checkers, but for hate and harassment.”
– Democratic frontrunner Hillary Clinton called on Web companies to “disrupt” terror groups’ ability to use social media for recruitment and communication, to “deprive jihadists of virtual territory” by shutting off their means of communication in the manner a U.S.-led coalition is attempting to retake actual land in the Mideast.
– GOP poll leader Donald Trump said at a South Carolina rally that “in certain areas,” we should just shut down the Internet. “We have to see Bill Gates and a lot of different people that really understand what’s happening,” he said. “We have to talk to them about, maybe in certain areas, closing that internet up in some ways. “
Both Clinton and Trump took clear aim at the First Amendment. Trump said, “Somebody will say, ‘Oh freedom of speech, freedom of speech.’ These are foolish people.” And Clinton told a group of Web company representatives that “you’ll hear all the usual complaints—freedom of speech. But if we truly are in a war against terrorism and we are truly looking for ways to shut off their funding and shut off the flow of foreign fighters, we have to shut off their means of communicating.”
But as FBI director James B. Comey said in a program Wednesday night at the Newseum, the old model of a Web site “watering hole” where terror operations and communications were centralized is gone – replaced by a world-wide, diverse set of points of contact and communication that defy simple counter-terrorist moves.
Schmidt may be on better legal ground with his robotic-powered battle plan, since the First Amendment protects only against government censorship, not the decisions of private companies. Already, in response to ISIS posts involving savage violence and the beheadings in 2014 of American journalists and others, social media outlets such as Facebook, Google, and Twitter have moved to quickly take down such posts as quickly as they are spotted.
But should the Google chief’s plan gains any traction, it surely will revive talk of bringing such massively powerful private information companies under the First Amendment – and thus, their content decisions – as quasi-governmental entities, much as we view electric, water and other public utilities.
Yet another Web battleground revolves around the use of encryption – tools that prevent most or all outside parties from deciphering material sent via the e-mail or social media. But while advocates of controlling or limiting terrorists’ communications call for providing governments with “back-door” tools to secretly spy on such messages, others say providing such access ability simply provides a means for skilled terrorists to undermine Web security.
Advocates for a free press note that creating such entry points for surveillance also makes it possible for governments at home and abroad to monitor the work of journalists, identify news source and such – effectively blunting the watchdog role of the press, particularly on national security matters.
And what of those organizing in other nations and against repressive regimes where identification means imprisonment, and an a government encryption “back-door” can lead in short order to a gallows’ “trap door.”
Terror groups can simply operate in the open – as did the San Bernardino killers recently – by sending pre-arranged, apparently innocent messages. And a major U.S.-led effort to censor messages it sees as harmful certainly could be cited by repressive regimes around the world to clamp down on free speech and free press for political reasons – a kind of “If they do it, with their First Amendment, we can too” argument.
None of this is to say the U.S. or other nations cannot build internet-related mechanisms to combat direct and immediate threats – but such efforts should focus on incidents where evidence has been presented in courts, and be held under law to the least-intrusive restriction on free speech.
Trump’s bombastic ridicule of “foolish people,” Clinton’s call for private companies to act as de facto government censors, and Schmidt’s scary proposal for a robotic “national speech nanny” are too much, too far, and would gain too little.
The bringing about of real, proximate harm via Web site or social media messages – coordinating a terror attack or bombing – are one thing. But the effective antidote to ISIS propaganda is to use the same Web and social media tools to both discredit the bogus material and to spread positive news.
At various times during the War on Terror, government officials in various administrations have justified calls for national security-based restrictions on press and speech by quoting Justice Jackson’s 1949 comment, “the Constitution’s Bill of Rights is not a suicide pact.”
But that’s no excuse for anyone – including Schmidt, Clinton and Trump – to do great harm to free speech, one of the essentials that make an American life worth living.
Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center.