Public Square, not a Private Fief: Why and How we can Recover our Free Speech from Big Tech
“Because we do not believe that the actions we have been directed to take are consistent with Indian law, and, in keeping with our principles of defending protected speech and freedom of expression, we have not taken any action on accounts that consist of news media entities, journalists, activists, and politicians''
- proudly proclaims Twitter on 10th February 2021, teaching the Indian Government and the people of the Republic their own Laws. The battle lines have been drawn- big tech has gone rogue, and our democratic decision-making processes will not be respected by Silicon Valley barons. The simple question before us is whether our communities’ values, discussions, fault lines, and beliefs should be playthings in the hands of Silicon Valley execs.
This infuriating act of hubristic condescension was a riposte to the Indian Government’s directions for Twitter to suspend several accounts inciting violence during the ongoing agitation on Delhi’s periphery. Thou shalt shut up, ye petty natives, for thy Lord Bluesparrow shall do as he pleaseth; he knoweth thy law and thy good interest better than ye peabrains. Social media giants ban as they please, ban whom they will, protect the venom regurgitating ideologues of their choosing, and now these firms wish to reinterpret our laws according to what they would like it to be. Louis XIV lived through the Age of Despotism rather well, thundering with his iconic “The State, that is me”. Now, we live in the Era of Tech Giants and NGOs walking up to our governments and societies, commanding that “Speech, that is me”, expecting us to bow down to their puritanical tenets of so-called liberalism. Free speech shall be what they want it to be, and they shall be judge, jury, and the executioners. Damned be our elected governments wielding the law backed by popular will, or an erudite judiciary protecting our conception of justice. Reimposing our Law on the idea of free speech is essential, so that all speech is treated equally and with due checks and balances.
While half the world and their neighbour’s dogs were crying hoarse about the 2016 US Presidential Elections due to the Russia Hacking Controversy, no loquacious knights raised questions at Time’s vainglorious description of victorious meddling in the 2020 Elections. Sounding straight from a Pravda headline one would chance across in 1970s Moscow, underhanded subversion through a shadow network of connected cabals (including big tech, of course) “saved democracy” through
“a vast, cross-partisan campaign to protect the election–an extraordinary shadow effort… For more than a year, a loosely organized coalition of operatives scrambled to shore up America’s institutions… They got states to change voting systems and laws and helped secure hundreds of millions in public and private funding… They successfully pressured social media companies to take a harder line against disinformation and used data-driven strategies to fight viral smears…”.
The madness doesn’t end there-
"In November 2019, Mark Zuckerberg invited nine civil rights leaders to dinner at his home, where they warned him about the danger of the election-related falsehoods that were already spreading unchecked. “It took pushing, urging, conversations, brainstorming, all of that to get to a place where we ended up with more rigorous rules and enforcement,” says Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, who attended the dinner and also met with Twitter CEO Jack Dorsey and others. (Gupta has been nominated for Associate Attorney General by President Biden.)".
Thanks, big tech, next time, just vote on our behalf. So brave, such magnanimity! Manipulating the electoral process isn’t mere manipulation when big tech is involved, ye peasant- it’s saving democracy; first, they took our data, and now want our voices as well.
Hungary, Poland, and now India is waking up to the dangers of Silicon Valley's autocracy; The former two have begun imposing fines on big tech for censoring speech which is lawful in the countries. By differentially treating certain political and cultural opinions, Social Media giants are attempting to change the landscape of what we think, what we speak, and what is heard. This is unbridled power which Mao or Stalin could not even imagine- building illusions of majority opinions by amplifying certain amenable factions’ voices in the public conscience. It isn’t merely market shares they are after- they are after the entirety of our public discourse. Our cultures, our values, our moralities, our freedoms, our politics, the nature of social pressures on our children- everything as at stake. For those who enthusiastically back them now, it is pertinent to remember that all revolutions eat their children; So will this one- they agree with you today, what about tomorrow? It won’t matter who you are- even the President of the world’s most powerful country couldn’t escape the clutches of big tech tyranny. No courts, no due process, nothing- only direct Robespierrean execution of your tongue.
At the very outset, three important takeaways can be inferred from Social Media giants’ recent behaviour. For us to analyse what they do, it’s essential to understand why.
Business: Social media companies have identified their dominant ideological constituencies, and it should come as no surprise that shielding this cohort is shielding one’s cash cow. Thus, “moderating teams” with questionable expertise and even more questionable ideological antecedents are couched in laughably ambiguous Terms of Service (ToS). These ToS are weaponised as and when convenient, with little to no explanations nor appeals for arbitrarily silencing someone. Furthermore, by hyping up certain interests which oppose actors who argue for greater State regulation of big tech, Silicon Valley protects its business interests further. Even the recent GameStop saga, where Wall Street short-sellers were purposefully devastated by a large number of people on Reddit, is just the most recent example of rage against big capital’s proximity to the system; Importantly big tech forms a major chunk of big capital. Unsurprisingly, Silicon Valley first sequesters people with differences in opinions, empowers the more “useful” ones, and fuels animosity between sides. These sides increasingly become extreme echo chambers due to their separation, and demonisation of the other begins- as focus on big tech’s capriciousness wanes in the dogfight. Is that how vulnerable our speech ought to be?
Ideology: Big tech has a penchant for a Macaulayesque, almost evangelical compulsion to impose its sunkissed California variant of so-called liberalism, perhaps with the beneficent intent of enlightening us lesser humans stuck in the dark ages. It is nothing new for much of the world; the sacrosanct idea that western liberalism is a universal idea has motivated armed interventions by the west around the world since centuries. One cannot help but recall Huntington’s maxim- strong Civilisations are universalistic, while weak ones are particularistic. Social media giants’ consistent disdain for non-western (or even non-Cali liberal) people’s right to direct their societies has become an established feature of the internet. Under the broad umbrella of “human rights”, and miasmic abstractions such as “corporate responsibility”, a very specific set of values is imposed upon communities. The sheer strength of the ivory tower polarisation in the United States is unnerving even western nations such as France, where “out-of-control leftism and cancel culture” from the USA is threatening French society. Meanwhile, as big tech crusades with governments labelled as “majoritarian”, “authoritarian”, etc., it maintains a placid, smug silence on China’s gruesome genocides in Xinjiang and Tibet.
Ecosystem: It’s useful to remember that social media works in a broader ecosystem. Sections of the elite in developing or transitioning countries suffer from a peculiar display of implied inferiority, whereby they ape trends in the west and are wholesale ideological imports. These groups are supercharged and welcomed with relaxed applications of ToS, even when it veers on outright calls to violence. Similarly, networks of NGOs with and without complicated chains of foreign fundings routinely act as propagandists and infantry for this constellation of actors. The two final ingredients in this mix are sections of the media and academia, both susceptible to becoming shrill echo chambers when they get swept away in selective international adulation. These actors are eager along with the rest to get international recognition as some kind of martyr bravehearts standing against the impure popular will of the uncouth hoi polloi. When big tech sees its business and ideological interests aligning with this ecosystem, it offers them a well-calibrated unlevel playing field for their taking. Having a quick look at some of their moderating partners is more proof than needed.
Why do nations have laws? Are the purposes of law and legislation mere procedural, where it simply tells us how to do things? Jurisprudence disagrees vehemently. In our democratic societies run by the Rule of Law, Law embodies our collective values drawing channels in the fecund earth for our creative energies to flow. The law is a living, breathing organism guiding our interactions; It is a distillation of our priorities and aspirations within the context of our culture and history. Whether it’s the ancient Dharma of India or the foundationally modern Principles of the French Montesquieu, Law has never been divorced from its moorings in ethics, morality, and justice- ideas which are persistently culturally determined. Even when jurisprudence evolves with judges of one country borrowing from another, it is carefully suited to the context and is not an unequal imposition of one on another. With popular sovereignty being the norm in most of our countries (de jure or de facto), what speech is curtailed, how, and for what reasons becomes solely a matter of national decision. Speech is the foundation of all social intercourse, serving as the sine qua non for decision-making in all spheres of life. Its suppression, a necessary evil, requires a responsible executioner- a government which can be booted out, a judiciary which can be reined in by the legislative. The natural conclusion of the argument would be that what constitutes acceptable and unacceptable public speech can only be enshrined in law and judicial interpretation, not left to the despotism of tech Tsars.
Before we proceed further in reimagining the law vis-a-vis social media, it’s imperative that a fundamental spout of hypocrisy is dealt with. The odd postulate that being a “private” entity implies they can kick off whoever they wish is a strange, selective reading of the politics and economics of social media.
Firstly, on the economics front, no legendary proponent of free trade beginning with the redoubtable Adam Smith himself argued for an absolute abrogation of economic regulation. Even the rhetorical master of Mises refrained from such an outlandish assertion. If anything, the free market requires regulation- to enforce contracts, prevent the subversion of the market, and have a level playing field. On the same note, economist Dani Rodrik does a spectacular exposition of the idea of “fair trade”, in the sense that issues such as social dumping, where products which undercut domestic social arrangements should not be included in the ambit of free trade. An unfortunate example is the use of slave labour by China in Xinjiang to export cotton products-should a firm making use of such barbarity be allowed to stay in such business, simply because a private entity can do whatever it wishes?
Secondly, the natural consequence of accepting such an argument would imply doing away with a number of established norms- Competition laws preventing collusive pricing, insider trading, employment laws, etc. Regulation already prevents firms from doing whatever they wish to, to better serve stakeholders; These regulations are borne of national values and decisions, representing a range of social arrangements unique to each culture. Thus, in many countries, one cannot refuse to render services solely on the basis of their identity- sexual orientation, race, etc. Such an established Juris of non-discrimination could be potentially extended to one’s opinions, as one’s opinions cannot be considered independent of their identity. Furthermore, it is an established Jurisprudential principle that one cannot enter into a contract which is trying to defeat the purpose of the Law- this principle finds aggressive usage in preventing abuse of power by big parties to force smaller ones into exploitation, as well as to prevent misuse of legal procedure to propagate contracts undermining the basic spirit of the Law. As a quick example, this is the reason why one cannot enter into a contract with another to be a slave, even if it is willing or he is free to not do so. Considering the essentiality of the freedom of expression, which often finds Constitutional sanction, employing this principle is simply a natural evolution of how Law already stands; We must never be slaves.
What would constitute reasonable restrictions on the same, again, differ wildly from nation to nation’s jurisprudence. Allowing firms to trample on it as and when expedient is a gross lacuna waiting to be mended. If anything, our nations have been fleeing away from their duty corresponding to the protection of our rights, subcontracting away something this precious to the whims of firms.
Before we come full circle to the duty of the State to be the guarantor of our Right to Free Speech, we require a significant wake-up call regarding the fundamental nature of social media giants. Owing to network effects, it is a futile exercise to “break them up” through antitrust actions, as the value of the platform is only as good as the number and density of connections (much like why Windows dominates the OS market); breaking them up would only lead to loss of consumer utility while newer monopolistic platforms would inevitably sprout. Therefore, we must accept that monopolistic network-based speech platforms are here to say. Concomitantly, we must treat them as a new class of entities needing specific laws to regulate them- we can’t have laws made in the Telegraph Age being hopelessly amended to catch up with social media.
However, botched attempts are replete here, usually due to two mistakes. One is, of course, failure to fully understand speech platforms. The second flows from the first, where governments pile responsibilities on social media platforms with statutes having terms as vague as the ToS itself. A tragic example is Germany’s Network Enforcement Act or NetzDG, which ended up forming a template of dealing with disinformation and hate speech giving massive powers to big tech. Essentially, it adopts a “better safe than sorry” approach whereby firms must remove things such as “hate speech” or “religious offence” within 24 hours or face a whopping fine. Overzealous to avoid fines, firms have gone on an overdrive removing any content even remotely similar to the broad terms used in the statute. While Germany’s strong rule of law allows for appeals to this in court (since this is a statute), this little respite is not available to repressive countries like Turkey which have adopted the matrix of the law. Such laws end up defeating their own purpose- extremists and hate mongers run towards increasingly exotic and difficult to monitor platforms, while discourse itself ends up being stifled.
The solution is to step back and reevaluate the status quo. The starting point is to stop treating a social media platform as if it’s a newspaper: there aren’t any editors, no staff running and vetting contents, and the data on it isn’t owned by the paper (generally). Instead, a social media platform should be what is interchangeably called a Public Square, Public Sphere or Public Space in the Common Law tradition, much like our common conception of what would constitute public places. The urgent change to pine for in a globalised world is to think of social media forums based on user-generated data and interaction to be classified as mere gateways to a virtual Public Square- a transnational, open place where the meeting of minds and tongues occurs. Here, rights of passage, speech, and assembly cannot be unduly restricted by Government and Private action, and free social intercourse is privileged. This also has important ramifications on our privacy rights, as it would prevent firms owning our data, without impinging on our rights to have free social intercourse. Here, the platform provider itself would only be considered as servicing the Public Square, providing access and modalities to enable the Public Square to function, in return for data processing and advertising rights. By recognising all posts and interactions as being under the idea of Public Square, we bring all content under the eyes of the Law as it stands, while taking away the right of any firm to alter or curtail interaction without the backing of the Law. Secondly, much like NetzDG, posts which seem to violate the Law prima facie would be suspended by the platform, however, acting as an agent of the State. This can be thought of as "content neutrality", much like the analogous concept of "net neutrality".
To overcome NetzDG’s problem, a Commission much like that in Hungary can be set up, to which appeals against such suspensions can be anonymously made and to which all platforms must submit all takedowns for periodic reviews and audits. The constitution of such a commission would not only require a judiciary and bureaucracy specialising in cyber and tech laws, but also the Constitutional right of Freedom of Speech. To better align incentives, the Commission could also act as a regulatory body in this regard, issuing periodic guidelines and imposing fines to align incentives. This way, rights, duties, safety, and concerns of all Stakeholders can be harmonised and balanced. It is possible, only if we are willing to accept that whatever we have been doing till now is using a hammer where a screwdriver is needed.
(Deekhit Bhattacharya is a student of Law at the University of Delhi, after graduating from the University of Delhi with a B.A. (Honours) in Economics. He has interned previously at the Australia India Institute at New Delhi, and the Federation of Indian Exports Organisations under the Ministry of Commerce, the Government of India. Reach him at email@example.com)