America’s individually deferential free speech laws are worth defending.
I note this in light of the Christchurch Call by the governments of France and New Zealand in Paris on Wednesday. Designed to build an international consensus around new restrictions on social media content, the Call has the support of numerous U.S. allies. These nations say their effort is tightly defined and does not endanger free speech. But it does, and I’m glad the Trump administration recognizes this.
Explaining its unwillingness to sign up to the Call, the White House noted that “the best tool to defeat terrorist speech is productive speech, and thus we emphasize the importance of promoting credible, alternative narratives as the primary means by which we can defeat terrorist messaging.”
The U.S. position might seem unjustified, but the Christchurch Call’s detail gives cause for American concern. Just consider the Call’s consensus between government and social media companies to (emphasis included) to “Develop effective interventions, based on trusted information sharing about the effects of algorithmic and other processes, to redirect users from terrorist and violent extremist content.” Now add the Call’s plan to “Accelerate research into and development of technical solutions to prevent the upload of and to detect and immediately remove terrorist and violent extremist content online … ”
Both these actions, insofar as they involve government, pose obvious breaches of First Amendment rights. “Intervention” designed “to redirect users” is an explicit reference to a government corralling of individual speech consumption. And the Call to “prevent the upload of and to detect and immediately remove” is equally coercive. The Call aims to eliminate “violent extremist content” online, but does not define that content. Alongside the Call’s interest in automated censorship, it would risk banning war footage that is not extremist.
Consider the video below, for example. Involving gun camera footage of a U.S. Army Apache strike on insurgents, it shows lawful military action. YouTube has a right to remove the video, but absent that, the uploading party is entitled to government deference. However, the Christchurch Call would likely, even if inadvertently — due to algorithmic activity — prevent these from being uploaded. It would thus create an established government restraint of speech without regard to First Amendment rights. It would thus also be unconstitutional.
My underlying point here is that it should be individuals and social media companies, not government, who get to decide what constitutes acceptable speech. Obviously that does not include criminal speech, such as threats. But those nations supporting the Christchurch Call have very different legal speech definitions from our own.
The Trump administration is obligated to defend the First Amendment. Were it to support the Christchurch Call, it would break that obligation.
