What does freedom of speech mean in the internet era?

In 1996, a man in South Africa locked himself into a glass cubicle and mostly limited his contact with the outside world to an internet connection for a few months. “The exciting aspect is realizing just how similar we all are in this growing global village,” he gushed to a reporter on the verge of his release.

What was an oddball stunt 28 years ago now verges on a rough description of daily existence. When Richard Weideman locked himself into that cubicle to stare at a screen all day, only about 1% of the global population was online, and social media was mostly limited to the 5,000 or so members of the WELL, an early virtual community. Now, more than two-thirds of the world is using the internet, a lot – and the global village is not in great shape.

The US Supreme Court is currently attempting to sort out exactly how internet discourse should be experienced. Are YouTube, Facebook and TikTok places where top-down decisions should continue to be made on what to publish and what to exclude? Or, are they more akin to a postal service that’s obliged to convey all views, no matter how unseemly?

By weighing in on two state laws mandating that kind of forced inclusion, the high court could end up ensuring free expression by erasing editorial guardrails – and the average scroll through social media might never be quite the same. A decision is expected by June.

This potential inflection point comes as just about everyone and their grandparents are now very online. Not participating doesn’t seem like an option anymore. “The modern public square” is one way to describe it. Oral arguments before the Supreme Court have surfaced other analogies, like a book shop, or a parade.

Excluding people from marching in your parade might seem unfair. But, it's your parade.

More than a century ago, a Supreme Court justice made his own analogy: speech that doesn’t merit protection is the type that creates a clear and present danger, like falsely shouting “fire” in a crowded theater.

“Shouting 'fire' in a crowded theater” has since become a shopworn way to describe anything deemed to cross the free-speech line.

As it turns out, falsely shouting “fire” in crowded places had actually been a real thing that people did in the years before it showed up in a Supreme Court opinion. In 1911, at an opera house in the state of Pennsylvania, it resulted in dozens of people people being fatally crushed; another incident two years later in Michigan killed far more.

More recently, social media services banned certain political messaging because they believed it had also fatally incited people under false pretenses.

Those bans prompted reactive laws in Florida and Texas, triggering the current Supreme Court proceeding. The Texas legislation prohibits social media companies with big audiences from barring users over their viewpoints. The broader Florida law also forbids such deplatforming, and zeroes in on the practice of shadow banning.

That particular form of surreptitious censoring isn’t confined to the US, even if many popular social media services are headquartered there. The EU’s Digital Services Act, approved in 2022, is meant to prohibit shadow banning. In India, users trying to broach touchy subjects online have alleged that it’s happened. And in Mexico, some critics have actually advocated for more shadow banning of criminal cartels.

In 1969, computer scientists in California established the first network connection via the precursor to the modern internet. They managed to send the initial two letters of a five-letter message from a refrigerator-sized machine at the University of California, Los Angeles, before the system crashed. Things progressed quickly from there.

In 2006, Google blew a lot of minds by paying nearly $1.7 billion for YouTube – an astounding price for something widely considered a repository for pirated content and cat videos.

By 2019, YouTube was earning a bit more than $15 billion in ad revenue annually, and had a monthly global audience of 2 billion users. It’s now at the crux of a debate with far-reaching implications; if the Florida and Texas laws are upheld by the Supreme Court, the site would likely have a much harder time barring hateful content, if it could at all.

That might be just fine for some people. One Supreme Court justice wondered during oral arguments whether the content moderation currently employed by YouTube and others is just “a euphemism for censorship.”

In some ways, we’ve already had at least a partial test run of unleashing a broader range of views on a social media channel. When it was still called Twitter, the site banned political ads due to concerns about spreading misinformation, and even banned a former US president. Now, as “X,” it’s reinstated both.

According to one recent analysis, X’s political center of gravity shifted notably after coming under new ownership in late 2022, mostly by design. The response has been mixed; sharp declines in downloads of the app and usage have been reported.

Government intervention to force that kind of recalibration, or to mandate any kind of content moderation decisions, would likely be unpopular. X, for example, has challenged a law passed in California in 2022 requiring social media companies to self-report the moderation decisions they’re making. The Electronic Frontier Foundation has called that law an informal censorship scheme.

Pundits seem skeptical that the Supreme Court will let the state laws requiring blanket viewpoint inclusion stand. During oral arguments, the court’s chief justice asked whether the government should really be forcing a "modern public square" run by private companies to publish anything. An attorney suggested the result might be so disruptive that, at least until they can figure out how to best proceed, some sites might consider narrowing their focus to “nothing but content about puppies.”

Workarounds are already available to some people who feel overlooked online. Starting an entirely new social media site of their own, for example. Or, if they happen to be among the richest people in the world, maybe buying one that’s already gained a huge audience.

Neither option is very realistic for most of us. And there may be a legitimate case to be made that ubiquitous platforms do sometimes unfairly marginalize certain voices.

(It's also possible that “content about puppies” would be preferable to what’s often available now).

Ultimately, no sweeping legal remedy may be at hand. Instead, we'll likely remain in an uneasy middle ground that only becomes more bewildering as artificial intelligence spreads – mostly relying on algorithm-induced familiarity, maybe wondering if it’s social-media ineptitude or shadow banning that’s keeping us from getting the attention we deserve, and not infrequently stepping out of our online comfort zone to steal a glimpse of something jarring.

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