The Great Facilitator: Free Speech and Power, Online and Off
Thank you so very much: both for this incredible honour and for these kind words. And thank you to everyone who is joining us today via Zoom or the livecast –– I am deeply grateful that you are making the time to engage with us on the many important topics we will be discussing at the Symposium today and tomorrow. To me the honour to kick us off with a few words, so let me do that.
Freedom of expression is an important right in and of itself. It plays a key role in our societies as an enabler of democratic debate, in holding our leaders to account, and it is crucial for truth finding. It is a fundamental right for us as individuals: expressing our views, convictions and beliefs is a central aspect of our self-determination.
…expressing our views, convictions and beliefs is a central aspect of our self-determination.
Freedom of expression also is a basic right for us as we act and organise in groups: it allows us to share information with each other, exchange views and opinions, and debate matters that concern us all. The American social reformer, abolitionist, orator, writer, and statesman Frederick Douglass summed up the important role freedom of expression plays by saying that: “To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money.”
But one of the things that makes freedom of expression so especially important is the way in which it facilitates the enjoyment of other fundamental rights. Here, it is obvious to think of the role of the press in bringing wrongs to light and thereby helping the enforcement of human rights standards. And the press, often referred to as the “lifeblood of democracy”, is indeed crucial. However, what I am getting at is something more all-encompassing. It is the interconnectedness of the different human rights acknowledged in international and national frameworks, and the role freedom of expression plays in that constellation as a facilitator.
This special role that freedom of expression plays as a supporting right inevitably also has its drawbacks.
Because freedom of expression underpins and is so closely connected to the exercise of other rights, it is also open to exploitation for the purpose of undermining, abusing or even destroying these other rights. Put very simply: if you can make good things happen, it also offers an opening for bad things to happen. Today, I want to look at some examples of the benefits of freedom of expression in this facilitating and supporting role, and also reflect on some of the challenges it brings.
Because freedom of expression underpins and is so closely connected to the exercise of other rights, it is also open to exploitation
In doing so, I want to take a slightly broader view than many of us have the liberty of taking day to day, confronted with a world in which –– currently by necessity due to the pandemic –– we are living significant parts of our lives online. Much focus is placed at the moment on the challenges that technology and social media bring for freedom of expression –– and human rights in general –– in the digital age.
In doing so, we don’t always properly take into account that the right –– which the drafters of the Universal Declaration of Human Rights wisely framed as applying without frontiers and as a right that can be exercised through any means –– already has a history of having been tried and tested through a variety of contexts and rapid societal developments.
When I say this, I by no means intend to downplay the novelty of the developments we are seeing unfold at the moment, nor the speed or scale at which this is happening. But I do want to emphasise that the human rights framework has made it through a lot already and it is my view that it will be able to withstand this, too.
…the human rights framework has made it through a lot already and it is my view that it will be able to withstand this, too
Another aspect I want to place squarely within the frame before we enter into the panel discussions today and tomorrow (which I am very much looking forward to), is that the way freedom of expression plays out in different contexts, online and offline, is a manifestation of the choices we make as a society and the power structures that govern it. This is a consideration that I don’t think is always sufficiently taken into account. Too often the focus in our debates about free speech in the digital age lies in dealing with symptoms, rather than reflecting on their root causes.
To illustrate these points, I want to highlight three contexts in which we’ve seen freedom of expression facilitate other rights in both the offline and online contexts: publishing, protest, and the fight for LGBTQ rights. After that, I’ll conclude with some reflections that we can jointly look at in more detail during the various panel conversations of the Symposium.
Examples of Freedom of Expression as a Facilitating Right
The Impact of Printing and Digital Publishing
The ability to express ourselves in writing and to share those writings with others has facilitated a great deal of other rights and advances in our societies over the centuries. It has helped the promotion of freedom of religion, the right to health, the right to rest and leisure, education, culture, and generally allowed us to share ideas and scientific discoveries across frontiers when we were not yet able to text or e-mail each other in seconds.
To start with its offline variety: the printed word has been referred to as one of the “Four Great Inventions” of ancient China, alongside the compass, gunpowder, and papermaking. When the German goldsmith Gutenberg adapted the technique in the 15th century, it made printing more affordable, easier to use, and more accessible. Historians often note the printing press’ significance as an “agent of change” throughout history, including during the Reformation, Renaissance and Scientific Revolution.
The printing press also provided more general access to the written word, which in Europe had been the domain of universities and the church. Universities and church institutions managed libraries and if books needed to be reproduced, this was done by making careful copies by hand. These books were mainly written in Latin, which made them inaccessible to anyone who did not master the language, even if they were literate.
As printing made the production of written texts at scale so much easier and affordable, it became lucrative to start printing works in languages that were accessible to those outside of ecclesiastic and academic circles. By starting to print in languages other than Latin, “regular” languages were standardised. It also facilitated the creation of communities around commonly read works to discuss their ideas.
Of course, this did not mean that anyone was able to get printed whatever they wanted. Governments were able to restrict what did and did not get printed, and the workings of the “market” also made sure that not just everyone was able to see their ideas published and circulated.
Prior restraint, a form of censorship that allows government to review the content of printed materials and prevent their publication, was, and in some countries still is, a reality. Just like the practise of banning certain books on grounds such as national security, or for being perceived as obscene or blasphemous. Here, it is good to keep in mind that even books we would deem fairly innocent now, such as Alice in Wonderland, Ivanhoe, and Oliver Twist, all have been banned by various governments at some point in time.
Besides government interference, “access” –– a concept I always find hard to define, but which speaks volumes about our ability or inability to effectively get to those with power in our societies –– to a large extent determined who got to publish. A lot of power lies in the hands of the publishing industry, whose decisions of what “audiences” will want to read are made by teams and individuals that, according to recent survey data, still are predominantly white, cis-gender, straight and able-bodied. This inevitably has led to an underrepresentation on the shelves of our public libraries and bookshops of authors that do not fit that picture.
The arrival of digital publishing and online self-publication has shaken up the publishing landscape to some extent, in the sense that the lower barrier for “access” and the lower cost of publishing mean that authors have more options to get their work out in public now that this no longer is the same as getting “printed”.
The new publishing landscape also allows for marginalised groups to create their own platforms to fill a gap left by mainstream publications
The new publishing landscape also allows for marginalised groups to create their own platforms to fill a gap left by mainstream publications and reach a wider, more international audience than would be possible with, say a physical “Zine“, the nonconformist, self-published booklets made by hand.
This does not mean that we’re now, in the digital age, completely free from the power dynamics and censorship at play in traditional printing and publishing. First, the traditional barriers that exist for those who are systematically excluded remain: think of the time, space and resources it takes to write in the first place. The “room of one’s own” and money to support themselves that Virginia Woolf argued women needed in order to write was accessible only to a privileged few.
…we should all wonder if bypassing a publishing house to directly e-publish on Amazon truly is a win for the free word
Second, digital publishing brings its own specific drawbacks with it. The website of an online Zine can be geographically blocked, doxxed or taken down; and we should all wonder if bypassing a publishing house to directly e-publish on Amazon truly is a win for the free word, trading traditional publishing houses as gatekeepers for a trillion-dollar capitalist behemoth.
The Galvanising Effect of Seeing Civil Rights Protests
Freedom of expression has traditionally been closely linked to the right to protest and the right to assembly. We organise and take to the streets to express our views on matters we believe should change in our societies, to get those in power to listen to us and, sometimes, even to tell them to step down. An important role in this is played by the media, and nowadays by us as citizen journalists and activists.
Gil Scott-Heron said that the revolution will not be televised, but television did play an important role in advancing the fight for civil rights in the South of the United States. Dr Martin Luther King Jr. understood the role the press and television could play in the civil rights movement by helping make visible to audiences across the United States –– where, by the early 1960s, about 90% of households had a television set –– what the Black experience in the country was. In their history of television news, Unsilent Revolution, journalists Robert Donovan and Ray Scherer wrote that “The civil-rights revolution in the South began when a man and the eye of the television film camera came together, giving the camera a focal point for events breaking from state to state, and the man, Martin Luther King Jr., high exposure on television sets from coast to coast.”
This attention from the media is often credited to have helped activists and politicians push for the adoption of key legislation like the Civil Rights Act of 1964 and the Voting Rights Act in 1965.
…the news we get to see and read about entails editorial choices, as does the way in which it is presented to us.
There are also some critical notes to be placed here, of course. Not only is who gets to broadcast determined by a licencing system, which is administered by the state; the news we get to see and read about entails editorial choices, as does the way in which it is presented to us. We’ll talk about the theoretical aspect of that in a moment, but I want to note here that the way in which events in the South were covered and the imagery of resistance that was spread was to a large extent shaped by the needs of the then-new television stations and their desire to connect with a wide audience across the US. I think I do not need to make explicit what the makeup of those news stations looked like –– today, still, diversity within broadcasting and news companies is lamentable.
Social activist and civil rights movement leader Julian Bond summed up the media’s approach at the time as follows: “What the media craved was a steady diet of bold mass action campaigns in the streets, ideally faced by violent white resistance, which could dramatize the issues at stake and make good print or electronic copy.”
The television networks had a clear idea of what their viewers wanted to see, and this resulted in an imagery of Black suffering, combined with extraordinary restraint in not responding in kind to any violence endured. This means that other narratives and perspectives of the fight for civil rights, which was of course a lot more complex than the TV version, did not get a place on prime time television. To come back to Gil Scott-Heron: to the extent that the revolution was televised, it was only a small part of it, curated and made presentable and palatable for a predominantly white audience.
…to the extent that the revolution was televised, it was only a small part of it, curated and made presentable and palatable for a predominantly white audience
If television was the medium that controlled audiences at scale in the 1960s, social media platforms perform that function in our current day and age. And of course especially since the COVID-19 pandemic took on a global scale in early 2020. Here, we are not dependent on a state body granting broadcasting licenses or newsroom making editorial choices, but what we do and do not see appear in our timelines is just as curated, and guided by the terms of service on which social media platforms operate and the algorithms that make sure items either end up “trending” or quietly slip out of sight.
There are many examples of social media playing a role in organising protests offline, of which the street protests against structural racism and police violence against Black people and people of colour last year is a recent and vivid example.
The Black Lives Matter hashtag and movement was born in the summer of 2013, when labour organiser Alicia Garza responded on her Facebook page to the acquittal of George Zimmerman, the man who murdered Trayvon Martin.
Following the murder of George Floyd in May 2020, the Black Lives Matter movement swelled in numbers, with protests not only taking place across the United States, but also internationally. Social media facilitated much of the organising and allowed information, images and videos of protests to be instantly shared with millions worldwide.
The live protests built on social media and after people took to the streets, the violent response to some of the demonstrations was livestreamed for all the world to see
Another protest that we saw in 2020 was the #EndSARS demonstrations in Nigeria. The movement had started in 2017 to protest against police brutality in the country by the Special Anti-Robbery Squad (SARS) and was reinvigorated in October last year after new abuses were brought to light. The live protests built on social media and after people took to the streets, the violent response to some of the demonstrations was livestreamed for all the world to see.
This online sharing of information –– photos, protest details, livestreaming videos –– is also where the greatest vulnerability lies for movement organising. Surveillance becomes easy with so much information at the ready and it is something governments have made grateful use of and, of course, a variety of private companies have been able to monetise. By monitoring messages and images posted on social media, sometimes through the use of fake user accounts, and combining that with other information, it is possible to identify upcoming protests and even individual protesters.
Surveillance becomes easy with so much information at the ready and it is something governments have made grateful use of
While the FBI needed to get Attorney General Robert Kennedy’s approval to place wiretaps on Dr King’s home and offices in an attempt to discredit him and destroy his reputation, no such measures are needed when surveilling movements through public social media posts. The same information that helps us mobilise in the streets can be collected and turned against us.
Supporting the Fight for LGBTQ rights
Freedom of expression ties in with the fight for equal rights of LGBTQ people in many ways. Amongst others by bringing to light inequalities and calling for them to be addressed; through organising and demonstrating, as we just touched upon; and by supporting the expression of individual identity.
Just like exposure was important for the civil rights movement to get racial inequalities examined and addressed, it is important for many other rights movements to see their cause featured in the media. But: who decides what makes it into the morning paper and the evening news?
But: who decides what makes it into the morning paper and the evening news?
A well-established media theory is that of “Hallin’s spheres”, developed by journalism historian Daniel C. Hallin in the late 1980’s. Hallin divides the world of political discourse into three concentric spheres: the middle circle is the sphere of consensus, which concerns topics on which there is widespread agreement. In the sphere of consensus, journalists assume everyone agrees. There is not a lot of exciting material for them to cover there, but it is also not kept out of the press. The next circle is that of legitimate controversy, topics on which people hold differing views. These topics are the most important to cover for journalists: there will be a lot of interest in them and journalists can help facilitate an informed debate. The outer circle is that of “deviance”, a label we wouldn’t really choose anymore nowadays, and those are the topics that fall outside the bounds of legitimate debate. Journalists are free to ignore these topics in their coverage. What falls within these categories shifts as public opinion shifts, which of course raises a bit of a chicken and egg question on how public opinion can shift if no one is reporting on certain issues.
For a long period of time, LGBTQ issues were part of the third circle we just looked at: they were not reported on at all in mainstream media or only to a limited degree, and then often negatively. In response to a nationwide demand in the United Kingdom by lesbians and gay men to be able to access news on the gay and lesbian liberation movement, the newspaper Gay News was founded in 1972 in a collaboration between former members of the Gay Liberation Front and members of the Campaign for Homosexual Equality.
The paper played a key role in the struggle for gay rights in the 1970s in the UK. Described as the movement’s “debating chamber”, the paper reported on discrimination, progress that was made in the fight for political and social equalities, and campaigned for further law reform, including equal rights in employment and the trade union movement. It also published personal ads, even though this was illegal at the time, under the headline “Love knoweth no laws.”
Overcoming the obstacle of publishing alone is not enough: if you want to also reach your readership, your paper will need to be distributed
Overcoming the obstacle of publishing alone is not enough: if you want to also reach your readership, your paper will need to be distributed. And this is where Gay News ran into difficulty a number of times. It had repeated clashes with W.H. Smith, which controlled one-third of the newspaper and magazine distribution in the UK at the time and who initially refused to stock the paper due to an alleged “low potential for sales”.
In countries like the UK, distribution is less of a problem these days for LGBTQ publications. In addition to self-published online Zines as touched upon earlier, big commercial publishers like Condé Nast have started to take on intersectional queer publications like the community platform them. To speak with Hallin’s circles: they are no longer part of the “outer” circle. This is not to say that the playing field is even now, but the landscape is starting to change.
Social media platforms more generally have served as spaces for community building, information sharing and organising for queer
Social media platforms more generally have served as spaces for community building, information sharing and organising for queer communities. It is not entirely a rosy picture, however. While there is no need to rely on a conservative establishment to get content distributed, like Gay News had to if it wanted to effectively reach its audience, social media platforms bring their own obstacles. Content “moderation” is often skewed against queer expression, and platform policies, such as Facebook’s real name policy, which effectively forces transgender persons to use their dead name if they want to be able to access the platform, are highly problematic. Going online also doesn’t mean it is possible to fully escape government censorship: platforms tend to comply with local “gay propaganda” legislation like we see in, for example Russia, and take down LGBTQ content or suppress related hashtags and search results.
Freedom of Expression and Power
We just looked at publishing, protest, and the fight for LGBTQ rights, and how freedom of expression facilitates – and sometimes hampers – other rights both offline and online in those contexts. Now, before we move on to the panel discussions, I would like to share some further reflections on where we are with freedom of expression at the moment and what I believe we should be thinking of as we navigate the digital landscape.
At the outset of this talk, I said I did not want to downplay the challenges we are facing at the moment, with most of our lives moving online and the exercise of our human rights along with it. And it is of course a reality that the exercise of many of our rights are now taking place on private platforms.
But: the question how we hold “big business” to account for human rights violations is also something we have struggled with before speech moved online. We are all too familiar with the images of, for example, big oil companies destroying wildlife and the livelihood of farmers through their negligence, as well stories about the use of child slavery in the production of our food, clothes, and smartphones. And while the conversation about corporate social responsibility and business and human rights is still very much ongoing, there are some positive lessons we can draw on for rethinking responsibility and accountability when it comes to corporations.
…the effectiveness of any of this, whether it is the responsibility of the Shells, Exxons or Facebooks of this world, will depend on political will.
In the end, though, the effectiveness of any of this, whether it is the responsibility of the Shells, Exxons or Facebooks of this world, will depend on political will. How far are our societies, the governments that we elect, willing to go to guarantee that human rights are upheld, guaranteed and protected?
The main challenge is of course how the human rights framework is set up, which is state-centric: the state has a number of obligations –– to respect, protect and fulfil human rights –– vis-à-vis individuals. We are not yet at a stage where direct horizontal effect of human rights, which would allow individuals to seek redress for human rights violations from another individual directly, including from actors like companies, is a fact.
So for the moment, we will need to work within the framework that we have, which means that human rights enforcement against companies and corporations, including the platforms on which much of our public debate takes place nowadays, will have to go via the state.
And this brings us back to the question of power dynamics: as individuals, we are dependent on the state and the international systems that states have created to see our human rights respected. Who actually gets to seek redress is a matter of access to justice, which is by no means equally distributed. The quip that “justice is open to all, like the Ritz hotel” still very much holds true.
This is what often makes me a bit anxious about the discussions on “regulating platform power”. Especially when these discussions point towards putting in place more legislation, I get very nervous. As some of the examples we just looked at demonstrated, and the overall picture around the globe when it comes to protecting free speech and journalism shows, government is often the problem and not the answer when it comes to stifling the free flow of information.
Especially when these discussions point towards putting in place more legislation, I get very nervous
Take an example like the NetzDG legislation in Germany, which makes it mandatory for companies like Facebook to remove “hate speech” from its platform or risk hefty fines. Enthusiastically copied by countries across the world, often by countries that do not have a good track record when it comes to protecting free speech, and often modified to expand the type of speech that should be taken down, this type of legislation has been shown to incentivise an overly zealous approach to speech removal. Putting the wrong type of pressure on platforms, and giving governments more power to suppress expression is not the answer.
If we are talking about regulation, I am much more in favour of thinking in the direction of parallels to the way another powerful private sector, that of banking and finance, is regulated. This would include putting in place stringent transparency obligations: what is taken down and promoted online and why; how are these processes and decisions automated? It would need to be combined with clear and accessible procedures for people to seek redress for perceived violations within an acceptable timeframe (as “justice delayed is also justice denied”…).
My main qualm with theorising about “solutions” for the conundrum of online speech regulation, however, is that we must ensure to not mistake the manifestation of a problem for the problem itself. Our societies have big, structural problems: power asymmetries that maintain structural inequalities, institutional racism, capitalism. Whatever we create in that setting, including internet platforms, will reproduce that.
…while it’s nice to think we can “fix the internet”, I believe we should have no illusions of succeeding beyond symptom suppression if we aren’t willing to look deeper
So while it’s nice to think we can “fix the internet”, I believe we should have no illusions of succeeding beyond symptom suppression if we aren’t willing to look deeper at the root causes of why it’s broken in the first place. If we accept societies in which those whose human rights are routinely violated generally won’t be able to easily seek justice, how do we expect to do better when it comes to safeguarding their human rights online?
You have heard me be critical of our societies and its power structures and I imagine some of you might be asking the question: “But wait: what about the human rights system itself? This, too, is a product of those same power structures and interests.” This is a very good point, and one I often struggle with, especially when I am reminded of Audre Lorde’s quote that “the master’s tools will never dismantle the master’s house”.
Where I stand on this at the moment is a belief that we need to combine a longer-term, aspirational vision with a certain degree of pragmatism. Even if our human rights framework may not be perfect, it is a good place to start to fight for our rights as individuals and as communities. And while we do so, we can work on changing the system itself in the process.
In doing this, we have to continue to be mindful of the broader impact our work has. Will taking up this particular fight lower barriers for others or increase them? Are we trading individual success for common good? This will entail making difficult choices at times, in which especially those of us who are lawyers and litigators will need to set our egos aside and look beyond short-term wins and ask what structural, systemic change we want to work towards in the longer term.
Coming back to the right to freedom of expression, and the role it plays in facilitating not only other human rights, but also the very struggle for their realisation, I want to make one final note.
Progress, especially if we want it to lead to addressing some of the fundamental power inequalities I mentioned before, requires vigorous debate and sometimes fiery disagreement
And that is that it is important to make sure that, whatever we do, we don’t end up with a lowest common denominator approach or a restrictive interpretation of what a good space for debate is. Progress, especially if we want it to lead to addressing some of the fundamental power inequalities I mentioned before, requires vigorous debate and sometimes fiery disagreement. When I say this, I am not arguing for a right to insult, but rather for a right to provoke. Professor, feminist, and social activist bell hooks expressed this wonderfully in her 1994 essay “Censorship from Left and Right”, and I would like to close with her words:
“When repression via censorship becomes the norm in progressive political circles, we not only undermine our collective struggles to end domination, we act in complicity with that brand of contemporary, chic fascism that evokes romantic images of unity and solidarity, a return to traditional values, while working to deny free speech and suppress all forms of rebellious thought and action. In recent years, feminist thinkers have fought long and hard to make feminist thinking, theorizing, and practice a radical space of openness where critical dialogue can take place. Much of that struggle has been waged by women of color, beginning with the conflict over whether or not to see issues of race and racism as feminist agendas.
Feminist movement, black liberation struggle, and all our progressive political movements to end domination must work to protect free speech. To maintain the space for constructive contestation and confrontation, we must oppose censorship. We remember the pain of silence and work to sustain our power to speak—freely, openly, provocatively.”