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Free Speech and the Free Press are different, misunderstood, and equally important [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2023-11-30  

When someone like Elon Musk talks about “free speech”, you can pretty much tell that he neither understands it nor cares about it. The First Amendment refers to “freedom of speech” and of “the press”. These are not the same thing!

Freedom of speech is a wonderful and broad concept that limits how much the government can prosecute people for speaking out or expressing ideas. This freedom is vital to democracy, as it allows the open expression of opposition to the incumbent government. “Speech” need not be taken literally; it does not just mean standing on a soapbox, but expressing one’s views in any medium. The speaker being protected is the person making the expression. The right is not absolute. Some crimes and torts are committed via speech. Fraud, slander, extortion, and incitement are examples. Incitement is tricky, though, as tyrants can take expression of an opposition view as incitement. And at the other extreme TFG claims freedom of speech as a defense in his rather blatant incitement of the January 6 insurrection.

Freedom of the press is also wonderful and broad. It has two salient features. One is that the publisher — the person who “owns” the press, be it a physical newspaper, web site, broadcasting service (which may have other restrictions), or other medium, gets to decide what to publish, essentially within the general bounds of free speech. Daily Kos can kick off trolls because it has that freedom. It doesn’t even have to run this diary. Newspapers can choose which stories to cover, which press releases to print, which letters to run.

The other major feature of a free press is that anyone may become a publisher without asking the government for permission. So you can start a blog, web site, newspaper, cable channel, or streaming service without government permission. Diversity of opinions comes from the diversity of publishers. Again, broadcasting has certain restrictions, ostensibly tied to the scarcity of frequencies, and how that limitation is regulated is arguable but essentially settled law for now. And the free press has certain limits too, like libel.

Now take a site like Twitter, or I suppose we can now call it Xitter*. Musk claims that letting Nazis onto it is because he believes in freedom of speech. But that’s bullshit. On Xitter, he’s the publisher, and thus has freedom of the press. He owns the content. Because it’s the web, Section 230 of the Communications Act gives him protection against what other individuals post there, provided that he follows certain rules. But freedom of the press makes him ultimately responsible for the site’s policies and not-blocked content.

This also plays into the Network Neutrality argument. The Communications Act separates “information service” from “telecommunications service”. The only reason that the Internet exists open to the public is because it was created without permission, as an information service, which is essentially an electronic version of freedom of the press. Ma Bell did not want the early ISPs to use their lines but they were not publishers; they were common carriers which granted them certain responsibilities as well as privileges, and thus had to take all orders. Common carriers have no responsibility for content passing over their lines.

Drawing the line between what is a carrier and what is the press (information service) is not as easy as it seems, and may need to be more nuanced than simply declaring all ISPs to be one or the other, based on the day’s politics. The underlying two freedoms must both be respected. The NN issue only arose after the Republican FCC, in 2005, lifted the common carrier obligation of the big telephone companies. Without common carriage, it could be like owning a newspaper but with no access to paper unless you built your own paper mill. So without some common carriage there is no electronic free press, but without treating information services as the (free) press, there is less freedom in the medium where today it matters most.

* We can call it Xitter instead of “X, formerly known as Twitter”, as we see repeated all too often. In the Mexican language Nahuatl, there is a “sh” sound that doesn’t exist in Spanish. So Spanish speakers trying to use their alphabet for Nahuatl words and names used the letter X for it, which exists in Spanish but is not necessary for phonetic spelling. I prefer that pronunciation of the X in Xitter.

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