More than half of Americans believe the First Amendment can go too far in the rights it guarantees, according to a new survey from the Foundation for Individual Rights and Expression (FIRE), a First Amendment–focused nonprofit.
The survey, released on Thursday, asked 1,000 American adults a range of questions about the First Amendment, free speech, and the security of those rights. Fifty-three percent of respondents agreed with the statement "The First Amendment goes too far in the rights it guarantees" to at least some degree, with 28 percent reporting that it "mostly" or "completely" describes their thoughts.
Americans were further divided along partisan lines. Over 60 percent of Democrats thought the First Amendment could go too far, compared to 52 percent of Republicans.
"Evidently, one out of every two Americans wishes they had fewer civil liberties," Sean Stevens, FIRE's chief research adviser, said on Thursday. "Many of them reject the right to assemble, to have a free press, and to petition the government. This is a dictator's fantasy."
Further, 1 in 5 respondents said they were "somewhat" or "very" worried about losing their job if someone complains about something they said. Eighty-three percent reported self-censoring in the past month, with 23 percent doing so "fairly" or "very" often.
Just 22 percent of respondents said they believed the right to free speech was "very" or "completely" secure. But despite these concerns, over a third said they trusted the government "somewhat," "very much," or "completely" to make fair decisions about what speech is deemed "intimidating," "threatening," "harassing," and "indecent," among other labels.
In all, almost 7 out of every 10 respondents agreed that America is going in the wrong direction when it comes to free speech—though it's not clear whether respondents think our culture and government are becoming too tolerant, or not tolerant enough, of controversial speech.
This latest survey indicates that many Americans are concerned about the security of free speech rights, yet also eager to censor speech they personally find distasteful.
"Americans have little tolerance for certain forms of protected speech and a lot of tolerance for unprotected conduct, when it should be the other way around," Stevens said. "This poll reveals that the state of free speech in America is dire."
There’s a type of marginally frustrating reporting where a reporter searches social media for [insert bad thing], finds some examples of said [bad thing], and writes a story about “This Platform Allows [Bad Thing]” followed by lots of public commentary about how the platforms don’t care/don’t do enough, etc. etc.
Let me let you in on a little secret: there are more [bad things] on the internet than you can reasonably think of. If you come up with a big enough list of [bad things] to block, people will just come up with more [bad things] you haven’t thought of. People are creative that way.
These stories are a mixed bag. They are accurate but not particularly enlightening. In our latest Ctrl-Alt-Speech, former Twitter Head of Trust & Safety Yoel Roth and I discussed these kinds of stories a little bit. He noted companies should do more internal red teaming, but solely to prevent such negative PR hits, rather than as an actual trust & safety strategy.
However, I’m reporting on the latest from NBC because it’s about ExTwitter allowing ads on hateful hashtags like #whitepower, #whitepride, and #unitethewhite.
Elon Musk’s social media app X has been placing advertisements in the search results for at least 20 hashtags used to promote racist and antisemitic extremism, including #whitepower, according to a review of the platform.
NBC News found the advertisements by searching various hashtags used to promote racism and antisemitism, and by browsing X accounts that often post racial or religious hatred. The hashtags vary from obvious slogans such as #whitepride and #unitethewhite to more fringe and coded words such as #groyper (a movement of online white nationalists) and #kalergi (a debunked theory alleging a conspiracy to eliminate white people from Europe).
Elon could make a reasonable response: that while this looks bad, the simple reality is that it is simply impossible to figure out every possible awful hashtag and prevent ads from running against them.
It’s easy to see a few hashtags and say “gosh, that’s awful, how could that happen,” without realizing that millions of hashtags are used every day. Even if ExTwitter came up with a blocklist of “bad” hashtags, some would still get through and eventually some reporter would find it and report on it.
But Elon or ExTwitter never gives that response, as it would involve admitting the truth about how content moderation works. Musk and his supporters have long denied this truth as part of their willful misunderstanding of trust & safety work.
In this case, it’s still noteworthy, given that Elon has publicly promised that no “negative/hate tweets” will be monetized.
Even worse, when organizations like the Center for Countering Digital Hate and Media Matters for America pointed out similar failures to live up to that policy, Musk sued both of those organizations. This now means that whenever anyone else reports on such things, it’s worth calling it out, because the clear intent of Musk suing CCDH and MMfA was to scare off more reporting.
That said, suing small non-profits with limited resources is one thing, but taking on NBC (where ExTwitter’s “official” CEO used to work) is another. NBC had called out similar failings months ago and ExTwitter didn’t sue then. So, either Musk is learning, or someone at the company realizes NBC might be tougher to sue.
Some of this style of reporting is a bit silly and show-offy, but if Elon promises no such ads and sues those who point out it’s still happening, no one should be surprised that more reporters call this out and highlight Musk’s failures.
In a welcome development for people who care about liberty, Australia's government suspended its efforts to censor the planet. The country's officials suffered pushback from X (formerly Twitter) and condemnation by free speech advocates after attempting to block anybody, anywhere from seeing video of an attack at a Sydney church. At least for the moment, they've conceded defeat based, in part, on recognition that X is protected by American law, making censorship efforts unenforceable.
A Censor Throws In the Towel
"I have decided to discontinue the proceedings in the Federal Court against X Corp in relation to the matter of extreme violent material depicting the real-life graphic stabbing of a religious leader at Wakeley in Sydney on 15 April 2024," the office of Australia's eSafety Commissioner, Julie Inman Grant, announced last week. "We now welcome the opportunity for a thorough and independent merits review of my decision to issue a removal notice to X Corp by the Administrative Appeals Tribunal."
The free speech battle stems from the stabbing in April of Bishop Mar Mari Emmanuel and Father Isaac Royel at an Orthodox Christian Church by a 16-year-old in what is being treated as an Islamist terrorist incident. Both victims recovered, but Australian officials quickly sought to scrub graphic video footage of the incident from the internet. Most social media platforms complied, including X, which geoblocked access to video of the attack from Australia pending an appeal of the order.
But Australian officials fretted that their countrymen might use virtual private networks (VPNs) to evade the blocks. The only solution, they insisted, was to suppress access to the video for the whole world. X understandably pushed back out of fear of the precedent that would set for the globe's control freaks.
Global Content Battle
"Our concern is that if ANY country is allowed to censor content for ALL countries, which is what the Australian 'eSafety Commissar' is demanding, then what is to stop any country from controlling the entire Internet?" responded X owner Elon Musk.
The Electronic Frontier Foundation (EFF) also argued that "no single country should be able to restrict speech across the entire internet" as did the Foundation for Individual Rights and Expression (FIRE). The organizations jointly sought, and received, intervener status in the case based on "the capacity for many global internet users to be substantially affected."
In short, officials lost control over a tussle they tried to portray as a righteous battle by servants of the people against, in the words of Prime Minister Anthony Albanese, "arrogant billionaire" Elon Musk. Instead, civil libertarians correctly saw it as a battle for free speech against grasping politicians who aren't content to misgovern their own country but reach for control over people outside their borders.
Worse for them, one of their own judges agreed.
"The removal notice would govern (and subject to punitive consequences under Australian law) the activities of a foreign corporation in the United States (where X Corp's corporate decision-making occurs) and every country where its servers are located; and it would likewise govern the relationships between that corporation and its users everywhere in the world," noted Justice Geoffrey Kennett in May as he considered the eSafety commissioner's application to extend an injunction against access to the stabbing video. "The Commissioner, exercising her power under s 109, would be deciding what users of social media services throughout the world were allowed to see on those services."
He added, "most likely, the notice would be ignored or disparaged in other countries."
American Speech Protections Shield the World
This is where the U.S. First Amendment and America's strong protections for free speech come into play to thwart Australian officials' efforts to censor the world.
"There is uncontroversial expert evidence that a court in the US (where X Corp is based) would be highly unlikely to enforce a final injunction of the kind sought by the Commissioner," added Kennett. "Courts rightly hesitate to make orders that cannot be enforced, as it has the potential to bring the administration of justice into disrepute."
Rather than have his government exposed as impotently overreaching to impose its will beyond its borders, Kennett refused to extend the injunction.
Three weeks later, with free speech groups joining the case to argue against eSafety's censorious ambitions, the agency dropped its legal case pending review by the Administrative Appeals Tribunal.
"We are pleased that the Commissioner saw the error in her efforts and dropped the action," responded David Greene and Hudson Hongo for EFF. "Global takedown orders threaten freedom of expression around the world, create conflicting legal obligations, and lead to the lowest common denominator of internet content being available around the world, allowing the least tolerant legal system to determine what we all are able to read and distribute online."
But if the world escaped the grasp of Australia's censors, the country's residents may not be so lucky.
Domestic Censorship Politics
The fight between eSafety and X "isn't actually about the Wakeley church stabbing attacks in April — it's about how much power the government ultimately hands the commissioner once it's finished reviewing the Online Safety Act in October," Ange Lavoipierre wrote for the Australian Broadcasting Corporation.
"The video in dispute in the case against X has been used, in my opinion, as a vehicle for the federal government to push for powers to compel social media companies to enforce rules of misinformation and disinformation on their platforms," agrees Morgan Begg of the free-market Institute of Public Affairs, which opposes intrusive government efforts to regulate online content. "The Federal Court's decision highlights the government's fixation with censorship."
That is, the campaign to force X to suppress video of one crime is largely about domestic political maneuvering for power. But it comes as governments around the world—especially that of the European Union—become increasingly aggressive with their plans to control online speech.
If the battle between Australia's eSafety commissioner and X is any indication, the strongest barrier to international censorship lies in countries—the U.S. in particular—that vigorously protect free speech. From such safe havens, authoritarian officials and their grasping content controls can properly be "ignored or disparaged."
Across the nation, college administrators are cracking down on pro-Palestenian speech. In Texas, police violently broke up peaceful protests, and one college even reportedly told students that they couldn't use the phrases "Israel," "Zionism," or chant in Arabic. At Brandeis University, police shut down a pro-Palestine protest because its president said it had "devolved into the invocation of hate speech."
While progressives have tended to support campus censorship efforts in recent years, an article in Vox by writer Eric Levitz argues that the left should embrace free speech—and that its push to censor speech in the name of inclusion and social justice was misguided.
"Should students concerned with social justice rethink their previous skepticism of free speech norms, for the sake of better protecting radical dissent? I think the answer is yes." wrote Levitz. "There is reason to believe that progressives would be better equipped to resist the present crackdown on pro-Palestinian advocacy had social justice activists not previously popularized an expansive conception of harmful speech."
Levitz's article also argues that rejecting censorship could lead the left to find more allies when their ideas are on the chopping block.
"In a world where right-of-center intellectuals had more cause for believing that their defense of leftists' free expression would be reciprocated," Levitz wrote, "it seems plausible that opposition to the Antisemitism Awareness Act might be a bit more widespread and its prospects for clearing the Senate somewhat dimmer."
While Levitz's piece is refreshing, its support for free speech isn't about adopting a new appreciation for the principles of free expression, regardless of political viewpoint. It's about adopting the best policies to protect left-wing ideas.
Save several paragraphs reminding progressives that debate is necessary for finding the truth and that "the more insulated any ideological orthodoxy is from critique, the more vulnerable it will be to persistent errors," Levitz's argument is pragmatic in nature. He spends most of the piece—correctly—arguing that if progressives had been willing to take a stand against censorship of right-wing beliefs, the current norms allowing for the censorship of pro-Palestine activists would not have been set in place.
However, if your reason to defend speech is purely practical and self-interested, it becomes much easier to indulge in exceptions to your free speech principles. Surely, allowing the censorship of the most offensive, unproductive viewpoints couldn't be used to justify the suppression of your own, much better, ideas, right?
Levitz even hints at such exceptions. "If adopting a permissive attitude toward campus speech entailed significant costs to progressive causes, then doing so might be unwise," he wrote, later adding, "Defending free speech and standing up for the disempowered may sometimes be competing objectives."
When your defense of free speech comes from a core, universal principle, calls for censorship are unthinkable. This is why, for example, it's so frustrating to see Levitz group the First Amendment nonprofit the Foundation for Individual Rights and Expression (FIRE) with a long list of "conservatives" who have spoken out against censorship of pro-Palestinian activism.
FIRE—and everyone else smeared as "conservative" for standing up against censorship—doesn't begrudgingly defend left-wing speech so that right-wing speech will stay protected—they're a nonpartisan organization that defends First Amendment rights because they believe fiercely in the importance of free speech.
Perhaps the biggest flaw is that Levitz's piece still doesn't make the core realization that there can be true, principled, defenders of free speech—those who truly think a nation with more ideas and more voices, even offensive ones, is better than one with fewer. Instead, he sees speech protections as a kind of truce, a decision from both the left and right to leave each other alone so they can both best further their political goals.
We would have a better, more functional world if more people—left or right—were willing to passionately defend the free speech rights of those with whom they disagree. However, getting to that world requires that people let go of the idea that censorship is ever a good idea, not merely that it's impractical.
Police Scotland received thousands of complaints under the nation's new hate crimes law just in the first few days after it took effect. Scottish First Minister Humza Yousaf told The Telegraph that "a tiny percentage" of the numerous complaints are "turning into actual investigations," but control room staff is running up overtime weeding through them. Yousaf, who backed the law, said that even if complaints start to dwindle in the future, it will take "weeks or months" and cost "hundreds of thousands of pounds" to work through the backlog.
Here's the relevant text, from S8206 (sponsored by Sen. Jeremy Cooney and pending before the N.Y. Senate Internet and Technology Committee):
Every operator of a generative or surveillance advanced artificial intelligence system that is accessible to residents of the state shall require a user to create an account prior to utilizing such service. Prior to each user creating an account, such operator shall present the user with a conspicuous digital or physical document that the user must affirm under penalty of perjury prior to the creation or continued use of such account. Such document shall state the following:
"State of New York County of _______
I, ________ residing at ________, do affirm under penalty of perjury that I have not used, am not using, do not intend to use, and will not use the services provided by this advanced artificial intelligence system in a manner that violated or violates any of the following affirmations:
I will not use the platform to create or disseminate content that can foreseeably cause injury to another in violation of applicable laws;
I will not use the platform to aid, encourage, or in any way promote any form of illegal activity in violation of applicable laws;
I will not use the platform to disseminate content that is defamatory, offensive, harassing, violent, discriminatory, or otherwise harmful in violation of applicable laws;
I will not use the platform to create and disseminate content related to an individual, group of individuals, organization, or current, past, or future events that are of the public interest which I know to be false and which I intend to use for the purpose of misleading the public or causing panic."
Such a government-imposed oath requirement would clearly violate the First Amendment, because it would restrict the user's ability to create constitutionally protected material (and, at least as to some terms, is likely unconstitutionally vague):
Speech "that can foreseeably cause injury to another" is generally constitutionally protected (consider, for instance, the republication of political or religious speech that has in the past led some people to act violently).
Speech that "encourage[s]" or "promote[s]" "illegal activity" is generally constitutionally protected, unless it fits within the narrow exceptions for intentional solicitation of specific criminal acts (e.g., against specific victims) or for speech intended to and likely to incite imminent criminal conduct.
Much "offensive," "violent," "discriminatory," and "otherwise harmful" speech is constitutionally protected (and "applicable laws," if they purport to ban such speech, would often be unconstitutionally overbroad).
Even knowing falsehoods about historical events generally, or about the government, or about other broad topics (as opposed to knowing falsehoods about particular individuals or nongovernmental organizations) are constitutionally protected, as are some knowing falsehoods about oneself.
It looks like Elon Musk may lose X's lawsuit against hate speech researchers who encouraged a major brand boycott after flagging ads appearing next to extremist content on X, the social media site formerly known as Twitter.
X is trying to argue that the Center for Countering Digital Hate (CCDH) violated the site's terms of service and illegally accessed non-public data to conduct its reporting, allegedly posing a security risk for X. The boycott, X alleged, cost the company tens of millions of dollars by spooking advertisers, while X contends that the CCDH's reporting is misleading and ads are rarely served on extremist content.
But at a hearing Thursday, US district judge Charles Breyer told the CCDH that he would consider dismissing X's lawsuit, repeatedly appearing to mock X's decision to file it in the first place.
Twitter CEO Linda Yaccarino must be thrilled by the advertising revenue being generated by this pro-slavery tweet that has 2.9 million views so far:
The tweet reads, "White people forget that black people make good slaves. When blacks know their place, their strong bodies are well-suited for manual labor in the field and household. — Read the rest
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