In his book “Free Speech; A History from Socrates to Social Media” (2022), Jacob Mchangama observes that while drafting the landmark UN Declaration of Human Rights in 1948, many countries, notably the US, considered it dangerous to include a provision to limit hate speech for fear such justifications “would encourage governments to punish all criticism under the guise of protecting against religious or national hostility” (2022, p. 384). American wartime paranoia that seeped into the post-war anti-communist inquisitions of McCarthyism, “proved in practice the American Civil Liberties Union’s point about the need to defend even Nazi rights” (2022, p. 297). Russian Nobel laureate Andrei Sakharov stated that only the “trinity” of distribution, debate, and freedom from persecution, “can keep an infection of people by mass myths in the hands of treacherous hypocrites and demagogues [from being] transformed into bloody dictatorship” (2022, p. 308). Mchangama adds:

“Once the immune system of free speech is compromised, more encroachments are sure to follow. This ancient pattern is repeating itself in the twenty-first century, during which free speech has systematically eroded in Hungary, Turkey, Poland, Serbia, Brazil, and India – the six countries that have suffered the worst autocratization in the past decade” (2022, p. 328).

As technology led to the spread of ideas via the printing press, so too was this effect multiplied with the advent of computing, the internet, and social media, which, according to Mchangama, could have made speech invincible but have instead created a free speech recession (2022, p. 348). Apart from social media’s apparent threat to democracy, there is a “silver lining” for authoritarian regimes who use it to further delineate their peoples’ speech with centralized platforms which themselves can ultimately wind up “serving as the private enforcers of government censorship, entirely inverting the digital promise of egalitarian and unmediated free speech” (2022, p. 359). Sophisticated Chinese online policing sponsors “strategic distraction” wherein millions of social media comments drown out dissent with “progovernment cheerleading”, and “hypernationalist trolling”, which coupled with blocking, filtering, and draconian punishments, become efficient tools to limit free speech. Also worrying is the withholding of critical data from the World Health Organization in the early phases of the covid pandemic, perhaps not unlike the Russian response to the Chernobyl nuclear disaster of 1986, and where a “lack of freedom of speech helps to turn potential disasters into real ones and national tragedies into international cataclysms” (2022, p. 334).

In a paper titled, “How Rights Change: Freedom of Speech in the Digital Era” (2004), legal scholar Jack Balkin states that technology mediates and reconstructs our relationship to other people; it empowers us with respect to others while conversely making us vulnerable in new ways. Underlying this is a conflict between the creativity, innovation, and democratising access to audiences, and the “increasing importance of information as commodity to be bought and sold” (2004, p. 6). According to professor Stuart Minor Benjamin, the transmission of “bits of data”, whether text, images, or other media, leave it open as to what actually falls within a definition of speech. More generally, evaluations of content are often dependent on subjective interpretations which cannot deliver a “conclusion normally reached by a series of falsifiable steps” (2011, p. 1676).

Mchangama states further that global social media users are being subjected to moderation without representation, and develop a corresponding habituation to community standards which might be significantly less protective than what follows under constitutional or human rights law. Often, seemingly incoherent and chaotic approaches to content moderation are in fact ad-hoc damage control resulting from “poorly conceptualized rules and practices that spawn a host of unintended consequences when applied generally and outside the specific context of pressure and outrage under which they were adopted” (2022, p. 368).

Is there a danger that ambiguous online standards could ultimately wind up influencing interpretations of human rights law, as opposed to the other way around? Kitsuron Sangsuvan (Spring 2014), citing the UN declaration’s “prohibition of indirect methods of restricting expression”, states “international human rights law cannot be used to control social media or enforce other countries to censor online speech or content”, and instead sees some potential in an updating of internet governance rules (2014, p. 703, 712). Internet founder Tim Berners-Lee states the solution is to decentralize the web altogether, and “take back power from the forces what have profited from centralizing it” (2022, p. 381).

Beyond reorganizing the rules or bits, Taiwanese activist Audrey Tang stresses that “immunizing democracies against disinformation from below requires a nation to trust its citizens and civil society, rather than viewing them as a fickle mob ready to believe whatever outrageous rumours are being spread by the enemies of democracy” (2022, p. 379).

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Balkin, J. M. (2004), How Rights Change: Freedom of Speech in the Digital Era, in the Sydney Law Review. Volume 26, (pp. 1 – 11). [PDF document] retrieved July 2022 from https://openyls.law.yale.edu/bitstream/handle/20.500.13051/1734/How_Rights_Change_Freedom_of_Speech_in_the_Digital_Era.pdf?sequence=2

Benjamin, S. M. (May 2011), Transmitting, Editing, and Communicating: Determining what ‘Freedom of Speech’ Encompasses, in the Duke Law Journal, Volume 60, Number 8, (pp. 1673 – 1713). [PDF document] retrieved July 2022 from https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1503&context=dlj

Mchangama, J. (2022) Free Speech: A History from Socrates to Social Media. New York, United States: Basic Books – Hachette Book Group.

Sangsuvan (Spring 2014), Balancing Freedom of Speech on the Internet Under International Law, in the North Carolina Journal of International Law, Volume 39, Number 3, Article 2, (pp. 701 – 775). [PDF document] retrieved July 2022 from https://scholarship.law.unc.edu/ncilj/vol39/iss3/2