Today’s heated debates over censorship on tech platforms are fueled by confusion over the purpose of the freedom of speech. This confusion was on full display last week when Google and Facebook executives testified last week before the U.S. House of Representatives.
Executives of both companies claim to support freedom of expression. A Facebook representative noted that the company is in favor of “expression” and strives to give people a “voice,” while making users feel safe to express that voice. Similarly, Google’s representative said the company has a “deep commitment to free expression.” Both companies explicitly ban so-called “hate speech” because it prevents users from fully expressing themselves.
But puzzling as it may sound, it is possible to support freedom of expression while also being hostile to freedom of speech. In fact, the freedom of expression, as understood today, is in conflict with the original purpose of freedom of speech.
A Google internal memo leaked in 2018 called “The Good Censor” shows the company’s skepticism about the freedom of speech, claiming it has “become a social, economic, and political weapon.” The memo compares the “American tradition” to the “European tradition,” saying America prioritizes “free speech for democracy, not civility,” while the European tradition, “favors dignity over liberty and civility over freedom.”
According to this memo, Google openly supports the European tradition, and believes that all tech platforms are now moving in this direction. Google did not deny the authenticity of the memo’s contents. In response to its publication, right on cue, Google claimed that it is “committed to free expression.”
Expression encompasses actions and behaviors which are an extension of speech (like burning the American flag). But that’s not all. The contemporary understanding of expression also deals with the non-rational articulation of emotions and will and, most importantly, assertions of identity. In its fundamental sense, expression means the articulation of self-created identity.
This meaning is captured in two landmark Supreme Court opinions, both written by Justice Anthony Kennedy. In Planned Parenthood v Casey (1992), Kennedy, in an opinion co-authored by Justices David Souter and Sandra Day O’Connor, stated that “At the heart of liberty is the right to define one’s own concept of existence.” Kennedy further clarified his view in Obergefell v. Hodges (2015): “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” In these opinions, Kennedy was giving voice to an intellectual movement which views expression as the willful assertion one’s self-created identity.
More and more lately, identity-creators are considered justified in demanding or even compelling others to honor their identity by silencing speech critical of it. Civility, accordingly, comes to mean acceding to demands stemming from identity. To question someone’s self-created identity is an act of incivility, which may justify a violent response. Of course, only certain identities are deemed authentic and therefore worthy of protection.
The original purpose of free speech for America’s founders, by contrast, is based on political liberty and the liberty of the mind. In its political meaning, free speech is necessary for deliberation about what constitutes the common good, to protect the nation from usurpation by public officials and from ideologies hostile to self-rule to which open societies are always vulnerable. Free speech also tempers fanaticism by subjecting it to rational scrutiny: “Reason and free inquiry are the only effectual agents against error,” Thomas Jefferson wrote.
False or untenable speech can be refuted by facts, demonstrations, and the law of contradiction. Expression, in its contemporary sense, is not falsifiable, as it is the manifestation of inner, supposedly authentic feeling which cannot and should not be subject to scrutiny.
Though it may sound puzzling, the contemporary understanding of self-expression does not require the freedom of speech. For instance, if self-expression means choosing one’s gender identity, one can be free to choose it privately, one can be protected from all criticisms of it, and at the same time banish free speech in its political and intellectual meaning. Expression of identity, in other words, does not require freedom of speech. In fact, the freedom of speech in its original understanding can bring harm to the new notions of self-expression, as Google and Facebook make clear.
The conflict between free speech and expression is being brought into the open by our tech giants, who seem to have both a moral and monetary interest in promoting only expression. As my colleague Klon Kitchen has observed, Facebook’s business model depends on selling user data which contains the authentic self-expression of its users, the authenticity of which may be compromised if users are exposed to criticism. What exactly might constitute obstruction to individual expression of identity will be judged by the moral feeling within the 30,000 Facebook “safety and security” reviewers.
These two companies seek to change American speech norms in a way that would change our whole way of life. And yet, Google-owned YouTube abides by Saudi Arabian laws to help suppress speech which criticizes its government, and Facebook works with Germany’s government to crack down on citizens voicing political speech over immigration which violates that country’s hate speech laws.
While these companies respectfully abide by foreign speech laws, they are attempting to change speech norms in America — despite being housed in America and receiving all the protection of our laws and access to America’s talent pool. Their goal is not to safeguard the American freedom of speech. Rather, they want America to conform to their moral assertions about the purpose of speech, at the cost of political liberty and the freedom of the mind.