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pandemic speech

Free speech in a pandemic: Congress wrestles with drawing a line

Washington When Twitter recently banned a former New York Times journalist dubbed “the pandemic’s wrongest man,” many of his critics cheered. But others, including some who oppose his views, raised concerns about a world in which private corporations – taking their cues from mainstream media and government officials – can silence dissenters in today’s digital public…

Washington

When Twitter recently banned a former New York Times journalist dubbed “the pandemic’s wrongest man,” many of his critics cheered. But others, including some who oppose his views, raised concerns about a world in which private corporations – taking their cues from mainstream media and government officials – can silence dissenters in today’s digital public square.

Over the past year and a half, Alex Berenson grew his Twitter base to some 344,000 followers by pillorying public health officials’ approach to the pandemic. Like many Twitter pundits, he was irreverent and provocative. But he also frequently accompanied his assertions with screenshots of data, charts, and scientific studies. 

His supporters lauded him for highlighting inconvenient truths that few others were raising. Many scientists, journalists, and health officials, however, criticized him for cherry-picking scientific data to advance questionable or even dangerous narratives, especially his claims that COVID-19 vaccines were not nearly as safe or effective as touted.

Why We Wrote This

The pandemic has raised the stakes in a yearslong debate over free speech and social media. Many want Big Tech to do more to protect citizens in the name of public health. Others see a dangerous form of censorship.

Twitter sided with Mr. Berenson’s critics on Aug. 28, permanently suspending his account after he tweeted that COVID-19 vaccines are at best “a therapeutic with a limited window of efficacy and terrible side effect profile.” The company cited repeated violation of its COVID-19 misinformation policies, and removed all his tweets from public view. Mr. Berenson is now writing mainly on Substack, where tens of thousands of his Twitter followers have migrated – many offering to contribute to his legal fees if he sues Twitter.

“I am up against basically the entire media, legacy and social, and the federal government,” says Mr. Berenson in an emailed comment, “and the only answer they had to the questions I raised was to cut off my access to a platform designed for free speech?

Nearly everyone agrees that misinformation on social media is a growing problem. But what, exactly, constitutes misinformation – and who should have the power to make that determination – is hotly debated. 

GOP Rep. Marjorie Taylor Greene of Georgia talks to the media about her suspension from Twitter, during a news conference on Capitol Hill in Washington, July 20, 2021.

Congress is increasingly wrestling with such questions as social media companies amass more wealth, power, and influence over public thought and discourse, with citizens increasingly getting news from algorithm-tailored feeds rather than traditional media outlets. And the pandemic has raised the stakes: Many now see the need to thwart misinformation as a life-or-death issue. 

Facebook: safety concerns trump expression

Facebook’s head of misinformation policy, Justine Isola, said earlier this year that when there’s a risk of imminent harm, that trumps concerns about freedom of expression. Many Democratic members of Congress agree.

“I’m on the side of trying to save people’s lives and make sure that companies are not profiting off of spreading dangerous misinformation,” says Sen. Ben Ray Lujan of New Mexico, who has co-sponsored a bill with Minnesota Sen. Amy Klobuchar that would increase social media platforms’ liability for spreading health misinformation in a pandemic if it is promoted by their algorithms. Senator Klobuchar says that platforms should deploy their employees to determine what’s true and not true, just like other media organizations, even if it’s a complex, time-intensive task. “I just think that they should be able to use part of their humongous profits to make sure we’re not getting misinformation,” she says.

But others have deep concerns about Congress requiring a handful of powerful private corporations to effectively censor viewpoints that contradict public health officials. The platforms’ misinformation policies already rely on statements by those officials to determine what is credible. 

“The United States government should not be leveraging its power and authority to try to make these tech companies arms of the state,” says Sen. Josh Hawley, a Missouri Republican and author of “The Tyranny of Big Tech.”

Critics say there is a clear pattern of bias against conservative viewpoints on social media platforms. On July 7, former President Donald Trump, who was banned from social media for violating their policies, filed class-action lawsuits against Facebook, Twitter, and YouTube, arguing they violated the First Amendment.

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” Many legal scholars argue that since social media platforms are privately owned, they are not bound to allow freedom of speech. But there is ongoing debate about that. 

Daphne Keller, former associate general counsel for Google who now directs Stanford University’s Program on Platform Regulation, argues that most of the misleading information on social media platforms that is causing serious harm is protected by the First Amendment, so the government couldn’t require platforms to take it down.

“What many people think is the moral, socially responsible, right thing for platforms to do is something Congress cannot mandate,” she says. “The only way to get it done is for platforms to do it voluntarily.”  

To be sure, contrarians are not the only ones who have been wrong about COVID-19. Scientists, politicians, and journalists have also made assertions that turned out to be incorrect – and while they cite evolving science, critics see politicization at work, too, and say that’s the danger of platforms relying on official consensus for determining truth. 

They note that some things initially dismissed as “misinformation” were in fact later deemed worthy of investigation, most notably the hypothesis that the pandemic may have started with a lab leak in Wuhan, China. When in late May, President Joe Biden ordered the intelligence community to conduct a 90-day review of all available evidence on the lab-leak theory, Facebook changed its misinformation policy the same day. But meanwhile, investigators had lost more than a year in which to press China for answers.

Stefani Reynolds/The New York Times/AP/File

GOP Sen. Rand Paul of Kentucky is shown at a hearing on Capitol Hill in Washington, July 20, 2021. YouTube suspended Senator Paul for seven days in August after the Kentucky Republican posted what the platform said was a misleading video suggesting face masks don’t prevent COVID-19 infections. The video was also removed.

Such premature labeling and dismissal of “misinformation” could interfere with the process of scientific inquiry – and that, too, could have deadly consequences, some argue.

“There’s a danger of groupthink, of mobbing people who dissent, and the last place you want that is in science,” says Philip Hamburger, a professor at Columbia Law School and president of the New Civil Liberties Alliance. 

What’s getting banned?

The scope of the challenge adds urgency. Facebook and YouTube have more than 2 billion users each, and far more content than any organization could review in real time; on YouTube alone, 500 hours of video are uploaded per minute, according to the most recent data available. If misleading information didn’t spread so quickly, it wouldn’t be nearly as much of a concern. And if a few tech giants didn’t control today’s digital public square, bans wouldn’t be so consequential. 

“They’ve now become gatekeepers to the public square,” says GOP Sen. Marco Rubio of Florida. “You literally cannot engage in political discourse in America if you don’t have access to those sites.” 

So what type of content do social media platforms ban? It ranges from “widely debunked” claims about the adverse effects of vaccines (Twitter), to content encouraging prayer as a substitute for medical treatment (YouTube), to claims that COVID-19 deaths are overstated (Facebook). 

This summer, Twitter said it had suspended 1,496 accounts and removed more than 43,000 pieces of content since introducing its COVID-19 misinformation policies

YouTube, which is owned by Google, has removed more than 1 million videos since February 2020 that go against its standards

And Facebook has taken down more than 3,000 accounts, pages, and groups, and more than 20 million pieces of content that violated the company’s COVID-19 and vaccine misinformation policies, according to an Aug. 18 statement by Monika Bickert, vice president of content policy. 

Some of Facebook’s takedowns involved 12 individuals dubbed the Disinformation Dozen by the Center for Count

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