31

There seems to be multiple definitions of freedom of speech out there, and I hear a lot about how companies like Google and Twitter are exempt from this as they are private entities and freedom of speech only applies to the government. This seems to contradict the following definitions:

Article 19 of the Universal Declaration of Human Rights

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Wikipedia

Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction.

Article 19 clearly states "regardless of frontiers" and therefore surely these companies are violating human rights when they censor people on their platforms?

Wikipedia states "without fear of...censorship..." which surely means that private entities fall under this definition too, which means they are violating free speech as well by censoring people on their platforms?

What I am trying to ask is, does freedom of speech apply to private entities, and if not, why?

  • 2
    It would probably help to get better answers if you specify whether you care about companies infringing free speech as a principle or in a legal sense (and in what locale if the latter). You might also want to be specific if you care about private entities acting on speech platformed by themselves or expressed elsewhere. – Lex Mar 24 at 20:13
  • Succinctly, the law guarantees freedom after speech. – dotancohen Mar 25 at 13:39
  • You may have freedom of speech, but no one has to give you a platform from which you can speak. That's why Twitter, Google et al are free to control speech on their platforms. – Moo Mar 26 at 0:37
78

This is a common misconception. Freedom of speech does not mean that everybody can say whatever they want, whenever they want and wherever they want. It means essentially that people cannot be legally punished for expressing their opinions, except if said opinions infringe on other freedoms.

This means that people are allowed to express their opinions, but it doesn't imply that any public or private organization has to offer their platform for them to do so. For example, if I write a political article it's up to me to find a support who agrees to publish it, I can't sue a newspaper because they refuse to publish it. Similarly, if I have my own website where people leave comments, I'm allowed to delete any comment I want since I'm the owner of the publication.

The same applies to Google or Twitter: they provide a platform but they can decide what kind of content they accept or not (users agree to their rules when they validate the terms of use).

This is why "freedom of speech only applies to the government", in the sense that only a government could prosecute somebody for expressing their opinions. In western democracies, governments are not allowed do that since freedom of speech is protected. By contrast, there are many countries where people can go to jail for expressing their opinions: this is what the absence of freedom of speech means.

  • 5
    This doesn't hold up to the definitions I have provided though, as article 19 states "any media regardless of frontiers", and wikipedia states "without fear of...censorship". Neither of these definitions restrict it to legal punishment, as legal punishment and censorship are not one in the same. – Owen Mar 23 at 16:09
  • 46
    @Owen If you look at the context of article 19, "media" means something like "in writing", "orally", "in the form of art", etc, or in a more modern sense "on a webpage". It doesn't mean Twitter or Facebook or the New York Times; it would be pretty ridiculous if eg the NYT were required to publish everyone who wants to write something. And it's the same with eg Twitter. You are free to publish on your own website, but Twitter as a private company doesn't need to publish eg hate speech. – tim Mar 23 at 16:29
  • That makes sense then. – Owen Mar 23 at 16:56
  • Comments are not for extended discussion; this conversation has been moved to chat. – Sam I am says Reinstate Monica Mar 25 at 19:59
  • 1
    @MarkAmery The case did not test safe harbor protections. See the appeal, which reframed it to not include Safe Harbor. The amount of evidence proving Twitter is a publisher (losing Safe Harbor protection) has significantly increased over the last 18 months. It will be a straightforward loss when Safe Harbor is actually argued. – user9614 Apr 18 at 16:18
22

Consider where your line of thought will lead:

  • You own or have rented a house or apartment, I presume. Would it be censorship if you stop me from painting political slogans on your bedroom wall? Or would it simply be you exercising your right to determine how your bedroom is to be used?

  • Say you invite a couple of friends for a party. Would it be censorship if you stop me from coming in and singing loudly and badly? Or would you simply be exercising your right to determine whom to invite and whom to throw out?

  • Imagine that for the next election, I put a campaign poster on your front lawn. Would it be censorship if you stop me from doing that? Or would you simply be exercising your right to use your front lawn as you see fit?

These three examples were about the private living place of an individual citizen. But think through the same examples with a mom-and-pop grocery store.

There are some reasons why it is not quite straightforward to extend this to Facebook, Google and the like:

  • Most countries have different laws for telecoms providers and news media. News media may e.g. be required to distinguish between editoral content and paid advertising, and they may be sued if what they print breaks laws. Telecoms providers are generally not liable for the content of communication which goes over their services, but they must not look into the content, either.
    The big internet companies seem to pick-and-choose if they want to be considered news or a telecommunications provider.
  • Either way, they have reached a size and market share that would justify anti-trust measures to break them up. Of course doing that would make the concept of a Facebook or Twitter impossible -- there could be no platform where "almost everybody" talks.
  • 5
    I don't really agree with two of these analogies. You're comparing online censorship to preventing someone from defacing material property. These two are completely and utterly different. – Owen Mar 23 at 16:12
  • 13
    @Owen, an admin where I work had a poster on his office door. "There is no cloud. There are only other peoples' computers." And I'm old enough to remember how people on usenet were worried that the traffic on rec.arts.startrek was so high that university admins might drop it. – o.m. Mar 23 at 16:27
  • 8
    @Owen that may be part of your confusion I guess. They are NOT "completely and utterly different." They are (conceptually, regarding freedom of speech) the same, and the reasoning applies to both – user21878 Mar 23 at 17:44
  • 2
    I think your answer doesn't necessarily cover the full scope of philosophical opinions. One could argue that the problem with freedom of speech isn't a binary one, but that different organizations have different degrees of power to restrict one a person is able to say, and that that's the real problem. A federal government obviously has the most power, but a local government still has some power (even though many people could move to another city) as does a telecommunications company (even though one could potentially switch providers or say things offline). – Obie 2.0 Mar 23 at 19:17
  • 4
    @Obie2.0, an employer firing someone for speech might constitute discrimination on political grounds, which may or may not be legal. The Catholic church reserves the right to fire employees if they marry, for instance, and that is widely accepted. Controversial political opinion might cause the loss of a security clearance, which is required for some jobs. And in "terminate at will" jurisdictions, the employer does not have to explain the reason. – o.m. Mar 23 at 19:46
12

Freedom of speech is a fundamental right of any person to express themselves. It is one of the human rights defined by the UN charter, and it is a right expressed in most democratic constitutions, separately.

To take the latter first - governments that guarantee freedom of speech defines it as a right to not get arrested, fined, censored or otherwise violated by the government as a reprisal to any spoken opinion. It does not protect you in case your speech is considered as an attack (violence) upon others - and it is fairly easy to see that in light of the philosophy that one persons freedom ends where another's begins. It also is so that (while I have not investigated all constitutions... the ones I have agree that) the freedom of speech is also a freedom not to speak - i.e. nobody can be forced to speak. Although, again, there are cases where you can be subpoenaed to do so as a part of some due legal process.

Now, that last bit is important. Persons, and legal persons (companies) can not be mandated to speak anything by anyone else except through a legal due process. So a person cannot force a newspaper editor to print an article, force a publisher to publish a book, force an online platform to post. This is in fact protecting the freedom of speech, not breaking it.

Now, as for the UN - their rules apply only to signatories (governments) - and let's face it: They are guiding principles at best.

  • Plus one for "guiding principles at best". No country that recognizes a right to free speech recognizes it as an absolute right. All that I know of limit it to protection from government reprisal based on the content of speech, but moreover, many exclude protection for speech that they judge conflicts with public decency / public order / rightthink. – John Bollinger Mar 24 at 17:51
  • AIUI the UK does not have a (direct, at least) analogue of the fifth amendment -- if you are arrested you are told "you do not have to say anything, but it may harm your defence if you do not mention when questioned something that you later rely on in court". (Which is a funny definition of "you do not have to say anything", but there you go) – Ben Millwood Mar 25 at 14:35
  • @BenMillwood It's not a compulsion to speak. It merely highlights the consequences for exercising the right to not speak – Caleth Mar 25 at 15:28
  • @Caleth what else could 'compulsion to speak' possibly mean? – Ben Millwood Mar 30 at 17:10
  • @BenMillwood It's the same level of protection against "confess or ... " threats by police. However it does mean that "never say anything to the police" isn't blanketly the correct course of action. – Caleth Mar 30 at 17:34
9

The declaration of human rights is not a legally binding document. The US laws regarding free speech are.

The argument that our largest communication platforms suppressing opinions are or would not be violating the principles of free speech because they are controlled by private companies comes from people arguing from the definition of free speech as a legal right, not a human right or a philosophical principle.

This is correct, albeit correct as a technicality.

One of the problems with it is you could privatize almost any aspect of government functioning, and you could then have that private company be legally allowed to ignore that right of the citizenship.

Example: You are in a country where the railway network has been privatized, and the railway company starts to disallow members of a political party or people expressing opinions similar to that of a political party from traveling with them. According to the above logic, this does not violate any rights they have to travel freely, even though it could easily cripple them because they might not have any other good options (too poor to afford cars for example) and might hamper their efforts in participating in the democracy (can't campaign for votes) and might carry all the negative effects that hampering their right to free travel have, but it is not technically violating it.

The most obvious counterpoint is that some things are such large scale, and have such a lack of alternatives, they are a part of the public space we move in, regardless of whether the people who control it is a private company or a government one.

This still would not mean the right of free speech is violated as defined in, for example, the US constitution because that is still a legal right with clear definitions of what it does, but it focuses on the real underlying issues free speech proponents are trying to highlight.

Summary:

  • Free speech as the legal right defined by the US constitution, and
  • Free speech as a legal right defined by any other government, and
  • Free speech as a human right, and
  • Free speech as a principle

are not the same thing.

People talking about free speech will often pick a definition that supports their position and disregard any that does not.

3

The UN thingy may be rather broad... trouble is you can't sue anyone anywhere based on it. The case of the US has been covered by Erwan (and is well known). For Europe, there's article 10 of the ECHR

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

As you can see it largely mirrors the US idea that protection is against interference by public authorities, rather than private actors. And if you look at the notable cases listed there, they're all of the form X vs state-Y.

I'm also mentioning this because (as it's probably obvious) the ECHR wording is a lot more similar to the UN one (than the US 1st Amendment is), but still the European Convention added the important caveat about the interference being by public authority. So they "fixed it" [the UN wording that is], if you like.

The much newer Charter of Fundamental Rights of the European Union, in article 11, while dropping most of the caveats/verbiage, did keep this one about public authority:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The freedom and pluralism of media shall be respected.

By the way the (1950s) ECHR applies to some 47 countries, the (2000) Charter (entered force in 2009 actually) only to the EU.

Also, an UK charity has an interesting page on the meaning of "public authority" as it pertains to ECHR (the UK included ECHR into national law). Basically, Westminster left the term largely undefined as to apply to as many circumstances as possible... and some litigation ensued surrounding the meaning thereof. Basically the courts ruled that contractors for various governmental agencies don't count as a public authority. The UK charity is pretty critical of this, arguing that the government can basically "outsource" violations of human rights in this way. I don't know what the situation might be in other European countries in this respect.

3

Erwan answer is correct to the extent that it covers the liability of corporations under US law for the content they publish.

There is however a separate regulation, one where there's a distinction between a platform (where anyone can post anything legal, it can be demonetized or unsearchable, or not show up in recommended but still available) and a publisher (where the owner decides which content is ok for them to have there).

Namely, (Section 230 of the Communications Decency Act of 1996)

It states, among other things, that

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Being a platform means that You are not responsible for anything people put up and all you have to do is be reactive (someone flags content as say, copyright infrigement and you take it down).

Being a publisher means that You are responsible for what Your users upload (so you can be sued for someone uploading an episode of "Friends" to Your site).

Youtube, Google, Facebook, Twitter etc... want to be platforms but also police content as a publisher would. This causes uploaders and consumers to be outraged at the censorship those companies because either You do not police legal content and are a platform or you police content and are a publisher.

The outrage is not as much about the fact that they're censoring the content, rather that they claimed to be free, independent media where anyone can post anything (legal) and "have a voice". That "promise" has been broken, or at least strained which causes the whole issue to be important at the moment.

Edit: If content is illegal in say pakistan its okay if its not available in pakistan.

Edit2: Many claim that selective censorship could be interpreted as a form of authoring the content on Your website (selecting content with a particular agenda can be interpreted as authoring the "message" Your platform expresses) thus making the site an "information content provider" (publisher) instead of platform thus making the site liable for any breaches of law connected to the uploaded content.

This is the argument I've seen most often used to claim Twitter, Youtube, Facebook etc... should either stop their censorship practices or be liable.

  • Welcome to Politics, I have heard about this before, but your answer would be much better if you can link to the law that defines such 'platforms'. – JJ for Transparency and Monica Mar 23 at 22:30
  • 1
    @JJJ I updated the answer to include that information, good idea. – Gensys LTD Mar 23 at 22:41
  • 2
    I don't see any reason why a platform would not be able to decide for itself how long to host any particular content, or under what criteria it may be removed. – Alexander O'Mara Mar 24 at 2:09
  • 1
    @BaardKopperud i am writing here about the outrage and public opinion being negative as well as by-law distinction of platforms vs publishers. Twitter promised to be the place where everybody has a voice as it was their initial aim (or at least marketing) the whole topic ic very complex so i just wanted to highlight the existence of differentiation between different company types. – Gensys LTD Mar 24 at 7:01
  • 1
    @AlexanderO'Mara well. That is usually contained in terms of service. Now depending on those and how they are enforced you may be looking at a platform or a publisher. Thats where liability for user generated content kicks in. Again. I'm describing the controversy, not taking a stance one way or the other. – Gensys LTD Mar 24 at 7:04
3

So I discussed this in another question, but Google and Twitter and any other social media site is currently in a legal grey area with respect to Free Speech Laws. As most of these are U.S. Laws, I'll be moving to the U.S. Freedom of Speech laws, established by the First Amendment and SCOTUS Case Law (If I may interject some opinion, some of the most fun decisions SCOTUS will make are about the First Amendment). The United States Bill of Rights (aka Amendments 1-10, inclusive) are best read as restrictions placed on the Federal Government (and the States under the 14th Amendment) that restrict them from performing certain actions against the common people. The First Amendment covers five important rights: Freedom of Speech, Freedom of Religion, Freedom of Association, Freedom of Assembly, and Freedom of the Press (Or more boiled down and in order, the right to say what you want, the right to believe what you want, the right to have relationships with others that you want, the right to access public property for whatever purposes you want, and the right to publish what you want.).

The United States Free Speech Laws are some of the most liberal in the world, but as pointed out, these are restrictions on the government. While you have the right to interact with any group you want and for any reason (activism, fan clubs, businesses, churches, social gatherings, ect) those associations also have the right of association and may make rules to limit their membership (must support our political goals, must like pony cartoons, must want to sell our products for money, must want to practice our faith, must want to Fight for your Right to Paaaarty!, ect).

So Google and Twitter are associations of people who want to make the products they make and sell those services for Money. And Google and Twitter make terms of service for the use of their product and what counts as acceptable and unacceptable content on their platforms. But, Google and Twitter are quite new in just what they do and it's raised the question of what service does Google and Twitter provide: A public medium of communication, or a unique publishing service and this is a distinction with a gulf of difference and to understand the current questions of censorship in Google and Twitter: Are they like phone companies or newspapers?

They're Phone Companies!

The market services of these companies is that they allow you to connect to others in different ways (google by searching for topics you are interested in, Twitter by allowing you to contact others) just like how the phones are used to connect two or more people who will discuss a topic. In the United States, Phone Companies are a Utility Service and are required to allow access to their infrastructure to anyone interested, provided fees are paid.

Naturally, the Phone Company would be nervous about blow back if their phones were used to discuss unsavory ideas... such as a criminal attack, or some racists planning a rally, or winning tickets in a radio-call in contest for the upcoming Justin Beiber Concert. If they are found to be the networks used to provide these communications, they could be sued or punished in some way. Seeing as how it would be bad if phones selected who could access the network based on their customer's opinions, imagine if they Beiber hating phone company won't give a fan a contract and now there is no way to for her to call 911?

So, in order to meet the requirements that anyone who can meet the application process can be accepted, the United States Government will tell phones so long as the bar of entry isn't arbitrary, it will not be held liable for the types of speech that are impermissible that cross it's service. So if criminals coordinate using a phone network, the phone network can't be held at legal fault.

Most vital services are classified as Utilities (Water, Power, Phones, ISPs, Cable, Satellite, and other TV Services... They provide products to everyone equally, so long as they are paying and cannot shut off these products to customers they don't agree with simply because they disagree.

They're Newspapers Publishers

Newspapers (and any publisher really) are similar to Utilities accept that they can edit their products to their liking. This doesn't include just bad grammar, but also which content providers they want to support. After all, if I named a cable news service, you can tell me what type of articles they're going to put up about a particular political candidate. This level of creative decision making allows for content to be regulated and they have a degree of what content makers they work with and which ones they dont. However, unlike Utilities, they are susceptible to lawsuits, such as copyright infringements and defamation suits. They could also be held responsible for content that might encourage illegal behaviors or even some illegal actions they themselves perform in content generation.

They're Grey*

Probably the best answer at this time, as the behavior of these companies tends to very to what suits them in the heat of the moment. The people who speak for these companies will claim they merely offer a service when the owner of a picture claims copyright and that they are a publisher when someone sues them for kicking them off for speech they don't like.

As the United States government was designed to be slow and inefficient in passing laws and rules, and social media is a relatively new phenomena, it's still not certain where the matter of Free Speech and social media providers stands at time of writing.

Oh, yeah, the California Connection

Remember how I earlier said that Google and Twitter are both U.S. Companies and subject to their rules... well... the free speech issue gets a little hazier. Not only are these companies all in the U.S. but the vast majority of big tech companies are in California, specifically Silicone Valley. This adds a complication as the California Constitution allows for what is called a "Public Private Space"... this is a little more permissive than the United States right to Assembly, which allows for Public Places only. "Public Private Spaces" is defined as space that is privately owned but is generally open to the public. The prototypical example is a Mall: The entire mall building is privately owned but there are no barriers to entry to the general public during the day to the main common areas between the mall shops. Under California Law, free speech and protest is allowed in these spaces in addition to Public spaces as well. There exists a legal argument that all the above arguments a moot because these companies advertise themselves as public areas for speech (Twitter especially advocates as a public forum). Proponants of this legal oddity argue that while the digital spaces are privately built and owned, the fact that the companies are headquartered in Californian and their infrastructure is there and the fact that they advertise as forums of discussion, many big tech companies are like the space in a mall that are not individual shops... and thus subject to respecting U.S. Free Speech Laws. Again, this is untested in the courts, as the cases that upheld the mall's restrictions on Speech Policing where about physical spaces, not digital spaces housed in California.

TL;DR:

  • While Generally Free Speech does not apply to private entities, what certain private entities are allowed to do with respect to Free Speech Laws depends on the nature of their services.
  • There's no concrete decision as to whether Twitter and Google are more like Utilities or Publishers and they want to enjoy the benefits of being both.
  • This all may be moot as they are California HQed Companies and California does extend Free Speech Protections to privately owned entities that act like publicly owned spaces.
  • Nice writeup, but maybe you should point out that e.g. Twitter is fundamentally different from a phone company while e.g. Skype is fundamentally much closer to a phone company. Why? Skype chats or calls are typically one on one or a small group with each other. It’s like ringing up exactly the person you want to talk to. The entire conversation is fundamentally private. Twitter, however (excluding PMs) is fundamentally public, i.e. everything you post can be read by anyone. In that way it is much more of a newspaper publisher than a phone company. – Jan Mar 25 at 19:09
  • It's neither... Free Speech laws in the U.S. tend to follow a "what other forms of speech is this like," analogy games, hence why I did the general comparisons. In truth my point is those tend to be the two comparisons and they don't adequately cover what these services do. – hszmv Mar 25 at 20:13
0

Keep in mind no country truly has "free" speech... obscenity (which is literally just an "idea" that a lot of people find offensive) laws exist in almost every single government architecture, and many countries also have blasphemy (which is also literally an "idea" contrary to a lot of people's religious views) laws as well... enforced to varying degrees with varying severity. There are also "sedition" style laws where the idea expressed opposes the government in such a way as to inspire rebellion or treason. Again, just an "idea"...

The point is, while we may have the goal of unfettered intercourse of ideas in all its glory, governments and the private sector do tend to inject a bit of "reality" in what is commonly considered "free speech".

-4

IT SHOULD APPLY TO GOOGLE ETC.

Most people here completely fail to understand that these laws and definitions were made in a time when the government was the only power capable of censorship. Since that is no longer the case, the concept of freedom of speech should also be extended to those new powers (eg. Google/Twitter...).

Also the idea of giving corporations the same rights as actual people is ridiculous (refering to the people claiming that it would restrict Google's freedom of speech if they had to allow everything)

Like, I'm sorry, but we're not living in the 20th century anymore.

Especially given this quote:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. [emphasis mine]

Google is an authority over the public, that's just a fact. Not a public authority per se, but again - the wording is archaic.

EDIT: Since some people don't get it: The fact that Google has a GLOBAL NEAR MONOPOLY is why we need to step away from the old, outdated approach to this topic, since that is NOT something the lawmakers of old considered.

  • 1
    Comments deleted. This is not a discussion forum. Also, please remember the code of conduct. – Philipp Mar 25 at 15:42

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .