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Law Professors for 'Speech Control'

A Commentary By Michael Barone

Friday, May 08, 2020

"In the great debate of the past two decades over freedom versus control of the network, China was largely right and the United States was largely wrong." So write Jack Goldsmith and Andrew Keane Woods, law professors at Harvard and the University of Arizona, respectively, in The Atlantic.

And they seem to mind, as their next sentence indicates: "Significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with a society's norms and values."

So much for the First Amendment. Hey, as Vox's Ezra Klein might say, that was written in the 18th century, and it's the 21st century. So private firms like Google and Facebook are censoring the internet in line with government policy, elite preferences or international organizations. YouTube won't run video recommendations that go against the World Health Organization's, the organization that denied human-to-human COVID-19 infection.

Those who find this alarming should remember that this is not the first time in history that a new communications medium threatening existing orders has been subject to what Goldsmith and Woods approvingly call "speech control."

Consider the printing press. Before Johannes Gutenberg constructed his contraption in Mainz, Germany, books were scarce -- products of hundreds of hours of skilled labor, as pricy and as useful in everyday life as jewels. Gutenberg's invention helped launch the 16th-century Protestant Reformation and the 17th-century scientific revolution.

Governments tried to limit the number of printing presses but were undercut by the multilingual presses in the Dutch Republic and, after Parliament allowed the Licensing Act to lapse, in England.

Printed pamphlets, distributed anonymously in newfangled coffeehouses, were a key communication medium in Britain's Glorious Revolution of 1688-69. Anonymous pamphlets, as historian Bernard Bailyn definitively documented, sparked the American Revolution as well. Adoption of the First Amendment shows the founders' opposition to "speech control."

That attitude has been tested. Censorship has been accepted in wartime, though not so much recently. Elites have deplored the emergence of widely available new media -- the penny newspaper in the 1830s; movies and newsreels in the 1910s; tabloid newspapers and radio in the 1920s, television in the 1940s.

In the 1990s, as Goldsmith and Woods note, Congress opted for an open internet, freeing websites from liability for content posted by others. The hope was that internet-propagated free speech would erode tyrannies like China's just as "fax Americana" materials had helped erode Soviet satellite tyrannies in Eastern Europe in the 1980s.

Now, Goldsmith and Woods argue, things are different. China has gotten so good at limiting the internet that our freedoms are obsolete. They cite two "wake-up calls," Edward Snowden's 2013 revelations about government and tech platform collection of private data, and "Russia's interference in the 2016 election."

But Snowden revealed eavesdropping, not speech control. And since the investigation of special counsel Robert Mueller found no Russian collusion with Donald Trump's presidential campaign, it's clear the Russian forays were very small potatoes. Much less formidable than -- to take just one example -- British and Russian use of 1940s pre-internet media to, respectively, elect and defeat Franklin Roosevelt in 1940.

What really seems to bother Goldsmith and Woods is dissemination of false information and questioning of government actions about the COVID-19 pandemic. But, as The Atlantic science reporter Ed Yong writes, we are dealing with "a pandemic characterized by extreme uncertainty." We don't know exactly how it spreads, how many have been infected and what percentage of those have died.

We do know the WHO that YouTube relies on got things -- such as whether the virus was transmitted human to human -- wrong. We know that expert epidemiologists' models turned out wildly misleading. We know that some government orders, such as New York's command that nursing homes accept COVID-19 sufferers, have resulted in dozens -- maybe hundreds -- of needless deaths.

Claims that "science" requires lockdowns are debatable, given scientists' current ignorance about the virus, and the inevitable ignorance about the negative health effects of eliminating cancer and cardiac screenings, and elective surgeries -- and the negative health effects of increased substance and opioid abuse following enormous job losses.

Weighing these risks is the responsibility of public officials, and of an active citizenry. Where there are no clearly right answers, there is room for public debate. "Speech control," especially when its controllers are the almost entirely left-wing employees of firms like Google and Facebook, is attempted thought control.

Goldsmith and Woods say that the internet is so powerful in its capacity to persuade and spread disinformation that speech control is warranted. The same thing was said about the printing press, about those pesky pamphlets, about movie pictures and radio and television. The founders had a different idea, and put it into the Constitution 233 years ago.

Michael Barone is a senior political analyst for the Washington Examiner, resident fellow at the American Enterprise Institute and longtime co-author of The Almanac of American Politics.

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