Extremist Speech and Compelled Conformity

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Citation: Danielle Keats Citron (2017) Extremist Speech and Compelled Conformity. Notre Dame Law Review (RSS)
Internet Archive Scholar (search for fulltext): Extremist Speech and Compelled Conformity
Download: https://ssrn.com/abstract=2941880
Tagged: intermediary liability (RSS)

Summary

Background on EU demands for removing extremist speech with 24 hours and tech industry response, including a code of conduct and blacklist, characterized as a result of "more coercion than choice."

The result is censorship creep, resulting from definitional ambiguity (hard to define extremist speech precisely, governments eager to include anything they don't like), systematization (eg hash database, which encourages takedown without review, which smaller entities cannot afford), and opacity (takedown under platform terms/via platform contact, fuzzy and not necessarily with reference to any public law or procedure).

Risks of censorship creep include various free expression/public discourse concerns, eg information removed that is essential for reporting and debate, and could undermine efforts to change people's minds, eg through anti-extremist advertising shown to possible aspiring extremist recruits, and could contribute to radicalization, and can make it difficult for law enforcement to do its work -- a considerable proportion of terrorism investigations start with social media activity.

"Companies can and should adopt prophylactic protections that help manage extralegal pressure for the good of free expression":

  • Clear Definitions: platforms should use clear definitions with specific examples and rationale for prohibition of certain kinds of content such as extremist speech; but tech companies should make it clear that government requests will be assessed under the requesting nation's laws and human rights standards; a multi-stakeholder group such as within the GNI and including human rights groups and companies could be established to help companies establish standards; likewise, criteria for addition to hash databases should be precise, clear, and with examples.
  • Robust Accountability: review requests from governments with extra scrutiny and skepticism; do not accept submissions to has databases directly from governments or their representatives
  • Meaningful Transparency: transparency reports
  • Ombudsmen: hire or contract with ombudsmen, also known as public editors, who have careers in protecting press freedom and promoting high-quality journalism, who should have a special role in assessing government requests.

Theoretical and Practical Relevance

"As Apple’s struggle with the U.S. government over encryption illustrated and as Silicon Valley’s unanimous support for that stand reaffirmed, tech companies enjoy public support when they defend fundamental freedoms. The suggestions outlined in this Essay thus may be positively received."

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