Thursday, April 12, 2018

Who Has "Freedom of Speech?"

Facebook's latest issues with privacy and transparency obviously raise key questions about the role of trust in social networks or any other apps funded by advertising. 

Less obvious are other questions about ad-supported technology companies in general, especially as the advertising revenue model virtually requires creation and delivery of content, information or communication capabilities. 

Media includes "communication channels through which news, entertainment, education, data, or promotional messages are disseminated." That includes every broadcasting and narrowcasting medium such as newspapers, magazines, TV, radio, billboards, direct mail, telephone, fax, and internet. 

That means Facebook--despite its traditional assertions, meets current definitions of media, in addition to being a technology company. That also implies--perhaps demands--that Facebook's content be treated as "media.

One phrase traditionally expressing such freedoms is freedom of the press, especially in the context of U.S. law. The U.S. Constitution guarantees the freedom of the press (among other core freedoms) in its First Amendment. 

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

To be sure, different media have different degrees of First Amendment protection. Traditionally, newspapers and magazines (print media) and arguably internet forms of such media have had the greatest degree of protection. Broadcasting (radio and TV) have had more regulation and obligations (children's programming, content restrictions and "diversity" or "balance" requirements). 

Since data services of all types (computing, storage, transmission) have been non-regulated, new internet apps such as Facebook have been in a category akin to newspapers and magazines. 

Linear video (modeled originally on cable TV) has had regulation similar to broadcasting in some ways. 

Former utilities such as telcos once were not considered media, but regulated as monopoly common carriers. All that makes no sense these days, as telcos and cable companies are in a number of businesses, ranging from internet access to communications to media. 

Some of us would argue that Facebook and other ad-supported apps that rely on content delivery and advertising as the business model, as well as Netflix and other streaming services, have First Amendment free speech protections. 

What that means is a new issue. Though it is not always understood, there are rival "free speech" issues always at stake. The original thinking was that the right of free speech belonged to the speaker (person or entity). 

As a practical matter, that meant people (citizens) as well as "owners of printing presses" and their customers. In other words, the "right of free speech" or "freedom of the press" (both separately protected, as well as the free exercise of religion) belonged to the "speaker," not the "listener." 

In other words, one way to explain the right is that it protects the right of a speaker, not the rights of the listener or hearer or reader. 

Over time, it got more difficult, as broadcasting medium regulation added some "listener" rights, such as "diversity of voices" or "fairness" or "mandated programming for children" and also some restrictions on content (language, nudity). 

By definition, that means we always have conflicting rights at play. Whose rights are to be protected, those of speakers or those of listeners? And to the extent there is conflict, where must the fundamental rights be protected? 

There is no simple answer, though some would likely note that, on balance, it is speaker rights, not "listener" rights, that have to be protected, when there is a clash.

That also is a current issue, given the seeming willingness of university administrations in the United States to seemingly favor "listener" rights as opposed to "speaker" rights. 

"Free speech" becomes almost meaningless if it is abridged by rules seemingly catering to "listener rights" not to hear messages with which they disagree. 

This might seem abstract. It is not, and will be obvious as our "regulation" of services such as Facebook is considered. There are opportunities to protect and enhance freedom, or to restrict freedom. A fundamental issue will be "whose rights are protected." 

This is not a new issue, though it remains a profoundly important issue. And there is no simple, easy, clear cut answer. 

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