Traditional protection of citizen "free speech" rights has aimed squarely at preventing government suppression. In the internet era, that might not be the biggest issue. Instead, it is suppression or curation by private entities that have a right to do so, which is different from saying they should do so.
In fact, many government actions seem quite trivial compared to the content moderation practiced by private gatekeepers.
The Federal Communications Commission wants U.S. telcos to block delivery of messages that use artificial intelligence to create fake political messages. Irrespective of the merits of that position, it does once again show how technology is making a shambles of the traditional regulatory models used to govern political discourse (supposedly protected “free speech”) in traditional print media; similarly protected content transmitted over telephone and data communications networks; slightly more regulated “broadcast TV” speech and unregulated internet media.
Perhaps oddly, the FCC position shows an encroaching amount of content regulation over an industry and business that traditionally has been required to allow freedom of speech. The original intent of common carrier regulation, after all, has been to enable universal access with no restrictions on “what can be said” over a communications network.
Generally speaking, content restrictions have been forbidden on communications networks; data networks (including internet media) and print media. There have been some restrictions or rules on broadcast TV and radio.
But some creeping content regulation seems to be increasing. Despite what we might think about AI-generated content that could be considered “fake,” rules forbidding it are content regulations, no different in kind from rules mandating childrens’ programming, “public interest” programming, “obscene content” or “harassing” phone calls.
The Communications Act of 1934 established the FCC to regulate both common carriers (like telephone companies) and content carriers (like broadcast media). However, technological advancements have blurred the lines between these categories, making consistent regulation challenging.
Traditionally, common carriers like telephone companies were expected to be neutral conduits of information, not regulators of content. However, the FCC has been given broad power to regulate broadcast media, creating a tension between these two approaches.
The FCC's content regulation, particularly regarding indecency, has raised significant First Amendment concerns. This creates tension with the principle of common carriers as neutral platforms for speech. The same might be said of bans on AI-generated content, as much as we might tend to agree that “fake content” is a problem.
The ongoing debates over net neutrality and the regulation of social media platforms further highlight the changing context of content freedom and regulation.
We might not, in the past, have seen communications networks as platforms supporting “freedom of speech” in the same vein as newspapers and magazines. But the whole concept of “common carriage” supports content freedom: networks cannot bar speech or the expression of ideas.
Oddly enough, since “freedom of speech” principles only prohibit government entities (notably the federal government) from restricting free speech, more issues are arising from private entity restrictions on free speech (social media, search and other content moderation and curation policies that suppress some views and promote others).
One might argue that the crucial freedom of speech issues now reside in the private sector, not government. Content curation by private firms seemingly has emerged as a much-bigger challenge to free expression of political ideas than government restrictions.
As an adage suggests, “freedom of speech exists for those who own printing presses.” In other words, even if individuals have the right to their views, gatekeepers that can amplify ideas also exist, and did so in the pre-internet eras as well.
These platforms employ content moderation policies and algorithmic curation that determine what content is amplified, suppressed, or removed entirely. This role is analogous to editorial decisions made by traditional media gatekeepers, but on a much larger scale and often with less transparency.
The point is that protecting “freedom of speech” traditionally has meant restricting the power of governments to censor speech. In the internet era, most of the major issues happen with private actors against which citizens have no actual legal protections.
As in earlier eras, it is the willingness of content curators to operate in a fair and unbiased manner makes the difference. There is a difference between the ethos of “presenting both sides” of an issue (actually there typically are many sides) and the different methods of “being transparent, rather than presenting a balanced view.”
