26: Regulated Free Speech

Table of contents

1. Review: The need for regulation
2. Sunstein: Advice for cautious regulators
3. Lessig: Free Speech and Regulation Through Code

Review: The need for regulation

“Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man.” (Hobbes, Leviathan, Book 1, Chapter 13)

“And because the condition of man (as hath been declared in the precedent chapter) is a condition of war of every one against every one, in which case every one is governed by his own reason, and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies; it followeth that in such a condition every man has a right to every thing, even to one another’s body. And therefore, as long as this natural right of every man to every thing endureth, there can be no security to any man, how strong or wise soever he be, of living out the time which nature ordinarily alloweth men to live.” (Hobbes, Leviathan, Book 1, Chapter 14)

In their own ways, both Sunstein and Lessig begin by challenging a common assumption that the first amendment protects speech from regulation absolutely.

Both identify this view as “incoherent” or “naive”, and though Hobbes goes unmentioned, they do so for Hobbesian reasons. Hobbes’s great insight was that the pursuit of absolute freedom always leads to less freedom than would be possible if parties agreed to allow some restrictions to freedom.

For Hobbes the war that results from pursuing absolute freedom keeps us in perpetual anxiety and risk of attack. This risk from others attempting to pursue their own freedom destroys any possibility of productive or meaningful enterprise or cultural activity.

“Whatsoever therefore is consequent to a time of war, where every man is enemy to every man, the same consequent to the time wherein men live without other security than what their own strength and their own invention shall furnish them withal. In such condition there is no place for industry, because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”

In the context of free speech this can be seen simply through the image of a group of people yelling at each other, each person trying to outshout the other person in order to be heard. In such a case, while in theory everyone is free to speak and shout as loud as possible, in practice no one is actually free to speak and be heard.

As Hobbes noted, it is only when we are willing to give up our hopes for the theoretically best option (“the right to speak at any and all times”) and accept the second best option (“take turns speaking”) that we are able to get the best actually realizable option.

In this regard, Sunstein and Lessig point out that government regulation has always been at work in order to make free speech possible. As Sunstein says: those that complain against regulation, are really just complaining about changes to the advantageous status quo that existing regulation has created. (Just a car drivers might complain that the imposition of a bike lane is undo government interference, while ignoring the fact that their entitlement to use an automobile on public streets is already the result of government “interference”)

Sunstein also connects the appeal for de-regulation to an incoherent valuation of consumer sovereignty. This connection offers us one further chance to review.

In this case, regulation is seen as a threat to consumer sovereignty. But again Sunstein sees this as incoherent. If everyone is shouting at the same time, then we really don’t have any choices.

Habermas also gave us a way to think about this incoherence in an even more subtle form.

As review (and example of a nice exam question) why, according to Habermas, might a singular focus on “consumer sovereignty” be self-defeating? Consider our earlier discussion in lesson 25. To what extent do our “free choices” represent our “real choice” when we are confined to the bubble of self-filtered content or manipulated by powerful private interest?

Using Sunstein as a guide, what are some of the ways the free and supposedly unregulated Internet already benefits from government regulation?

Lessig has a nice way of explaining this using the image of the four modalities of regulation.

He notes that regulation can both be a constraint and a protection against the constraint of other forms of regulation.

But if government is the regulator imposing the restraint why would we ever need regulation as a protection against restraint?

Because in the first place, as Habermas pointed out, a government can be at odds with itself insofar as the “administrative power” can be in competition with the will of the people.

But in the second place, as Lessig is continually at pains to stress, the laws made by the government are not the only form of regulation. Powerful private interest can directly wield the three modalities of regulation (market, norms, and code) and indirectly, through lobbying efforts, affect the law as well.

Thus in addition to thinking about regulation as a constraint, the constraint itself can be used as a form of protection against competing forms of regulation that threaten something that a society holds valuable.

After all, if someone is wealthy enough to buy a megaphone that would allow them to shout over others, this is a form of private regulation through market and code.

Government regulation that attempts to use code, market, norms, or law to give everyone, rich or poor, an equal opportunity to speak should strictly speaking not be seen as a constraint – though it can often feel like one (e.g. “You are NOT allowed to use your megaphone”). On the contrary, such a government imposition is meant to be a protection of the maximal amount of freedom that all individuals can be possess in social context.

Sunstein: Advice for cautious regulators

This idea of maintaining the maximal amount of freedom is a good transition. The regulator’s solutions should not be heavy handed. They should attempt to “toe the line”, that is find a solution that gives everyone as much freedom as possible without over privileging anyone. A heavy handed approach, may be easier and more efficient, but it creates new problems.

In making the overall argument that we should be open to the idea that society is justified in regulating speech to promote the ends of deliberative democracy, Sunstein offers us some reminders of why it is important to be cautions regulators.

There are important reasons that society has been wary of regulation.

Why for example does Sunstein note that courts have always emphasized that political speech should be especially protected, while other forms of speech (for example advertising) might be regulated in a more heavy handed way.

Sunstein notes at least three reasons on pp. 205-206.

Thus, on the one hand, Sunstein has made an argument for the regulation of political speech, but at the same time has noted that the regulation of this speech requires the utmost care, sensitivity, and subtlety.

Pages 207-212 offer us some ideas and strategies that a regulator might use. Here I see Sunstein as contributing to the same conversation in which Lessig was partaking when he identified the four modalities of regulation (law, market, norms, and code).

Since we spent quite a bit of time discussion the YouTube algorithm and interface, and its proclivity to create polarized groups rather than deliberative enclaves (as described by Sunstein in chapter 3), let’s consider these regulatory strategies in the case of YouTube, imagine what this regulation would like, and assess its pros and cons.

Lessig: Free Speech and Regulation Through Code

In thinking about regulation, our minds turn most quickly to direct censorship and explicit punishment. Sunstein has already tried to push us to be more creative regulators by noting the power and flexibility that comes with subsidies.

Lessig is equally a pains to help us think about how regulators could affect the code, or how they could use market or norm pressures to indirectly affect the code, that would have a similar affect.

In this chapter, Lessig discusses possible solutions to new problems of porn and spam in the digital age. His basic methodology is worth our attention – in light of our final paper assignment – because it illustrates the creative use of all four modalities of regulation to protect something valuable.

In each case he is 1) attentive to how the “old” code constrained behavior in certain ways. Then 2) he notes how the new code removes that constraint and creates a subsequent problem. 3) Finally, he offers a creative mixed modality solution that attempts to produce “transparent” regulation which imposes the least amount of burden on others and the least amount of risk for subsequent abuse.

Let’s consider each of these three aspects with each example he offers.