“China Was Right”? A Response to Professor Jack Goldsmith

Harvard Professor Jack Goldsmith has penned a column this week contesting my characterization of his past call for limiting free speech on the Internet.  Professor Goldsmith insists that when he and Professor Andrew Woods said “China was right” about such controls, he was not advocating censorship or in any way opposing free speech. I felt that I should respond. There are views that Professor Goldsmith and I share. I regret that we are at loggerheads over free speech, but this disagreement highlights a growing divide among academics and advocates over censorship.

I respect Professor Goldsmith who has had a distinguished career, which included heading the Office of Legal Counsel at the Justice Department. He has a long and prestigious record as both a lawyer and as an academic. (I am a particular fan of his writings on the Hoffa murder where he defended the reputation of his father-in-law, Charles “Chuckie” O’Brien). He is neither someone who I previously criticized nor someone with whom I would disagree lightly.

When the column was sent to me, I must confess that I was worried. If I got the original column wrong, I would need to run an apology and correction. As academics, none of us are beyond such errors but the test of principle is to admit our errors. In the fast-moving pace of legal and political commentary today, it is easy to make such mistakes. I will also confess that I am often called a “free speech absolutist.” While that is not accurate, I readily admit to opposing most limits on free speech and I am quick to pushback on calls for censorship. Thus, it was possible that the glaring referral to China as being right on Internet speech controls led to a knee-jerk response.

However, reading Professor Goldsmith’s latest article, my fears were quickly allayed. He is still advocating censorship and the Lawfare column only magnifies concerns over the euphemistic spin given calls for censorship by academics and writers. The column struggles to maintain that one can be a champion of free speech while calling for censorship. It is a common pushmi-pushyu creature seen at universities as academics call for censoring “harmful speech” and “misinformation” while proclaiming their fealty to free speech.

I do not question Professor Goldsmith’s motivations but I do question his means in addressing the “harm of digital speech.”

As a threshold matter, it is important to correct a small factual error in the Goldsmith article. Professor Goldsmith accuses me of not linking to his Atlantic article. That is not true. The original column linked to the article. Later references took readers back to that original column and the link to the Atlantic article.

In his Lawfare column, Professor Goldsmith denies that he is supporting Chinese-style censorship and insists “I do not believe I have ever advocated censorship of anything or anyone.” The question is what Goldsmith is advocating in these columns if he is not advocating censorship.

The Atlantic Article

For free speech advocates, the Atlantic has become a hotspot for those seeking free speech controls as well as censorship deniers. It was not, therefore, a surprise when it ran an article titled “Internet Speech Will Never Go Back to Normal.” It was surprising to see Goldsmith as one of the authors.

While Goldsmith insisted that this criticism is based on a single sentence rather than reading the column as a whole, there is more than a single line that drew the ire of many of us in the free speech community.

The entire premise of the column (despite later denials) was to warn companies and countries not to restore the level of free speech allowed before the pandemic. Goldsmith declared that “in the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong” and “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 society norms and values.” He does not define what those mandatory or protected “norms and values” will be.

While Professor Goldsmith denies ever advocating censorship, his column specifically credited companies with working with countries like China on “censorship practices.” He commended these companies for “proudly collaborating with one another, and following government guidance, to censor harmful information related to the coronavirus.” The authors argued that, even with the passing of the pandemic, countries and companies should not go back to allowing the level of free speech that once characterized the Internet. It is a rejection of those who us who consider ourselves “Internet originalists.”

Goldsmith used the Atlantic column to call for continued censorship of what companies or countries deemed “misinformation” or “hate speech.” He expressly supported the view that “the basic approach to identifying and redressing speech judged to be misinformation or to present an imminent risk of physical harm.”

He added:

“We live—and for several years, we have been living—in a world of serious and growing harms resulting from digital speech. Governments will not stop worrying about these harms. And private platforms will continue to expand their definition of offensive content, and will use algorithms to regulate it ever more closely. The general trend toward more speech control will not abate.”

Goldsmith further added “The harms from digital speech will also continue to grow, as will speech controls on these networks. And invariably, government involvement will grow.”

The entire premise of the article is to address “Civil-rights groups … urging a swift return to normal when the virus ebbs . . .  But the ‘extraordinary measures we are seeing are not all that extraordinary.” Citing similarities with China, Goldsmith insisted “the trend toward greater surveillance and speech control here, and toward the growing involvement of government, is undeniable and likely inexorable.”

None of that seems particularly nuanced and Goldsmith expressly supports censorship for misinformation and other “harms for digital speech.”

The Lawfare article

In the Lawfare article, Professor Goldsmith vehemently denies ever supporting censorship of any kind and insists that he was not supporting Chinese-style censorship. Yet, he repeats that

“China was largely right, and the United States largely wrong, about the existence of such harms and the need to address them, either by public or private means, albeit in pursuit of very different values and ends in the two systems.”

What is most striking about both articles is why China is referenced as a model or favorable point of comparison. China is widely viewed as maintaining the most abusive and most extensive censorship system in the world, including its infamous “Great Firewall” that not only bars political speech but scientific speech. There are many countries who are actively seeking to censor misinformation and hate speech, efforts that I have also generally criticized as inimical to free speech. Those efforts are advanced under the same generalized claims of harm advanced by Professor Goldsmith. So why repeatedly cite China as being right and the United States as wrong on censorship?

Professor Goldsmith insists that China was right about the harms threatened by the Internet  and “the need to address them, either by public or private means.” Those “means” would seem to be largely the removal or blocking of postings. In other words, censorship.

Moreover, before the pandemic, companies routinely removed criminal, threatening, and fraudulent postings, including the oft-cited example of child pornography (which is a crime). However, such bans were narrow and largely avoided censoring viewpoints that others deemed misinformation or disinformation. There was admittedly offensive content that many felt was harmful, but the assumption was that good speech would prevail over bad speech. That is the pre-pandemic allowance for free speech that Goldsmith opposed. Instead, he encouraged countries and companies not to restore the level of free speech previously allowed on the Internet.

There is, however, one aspect of the Lawfare article upon which I readily agree. Professor Goldsmith states “anyone interested can read those pieces to see if Turley has accurately represented my views.” I echo that sentiment.


66 thoughts on ““China Was Right”? A Response to Professor Jack Goldsmith”

  1. Why do you keep extending Goldsmith the benefit of the doubt? Why do you keep scratching your head over Goldsmith’s denials contradicting the evidence out of his own pen? There is a point where good-will becomes naivete and you are there. The contradiction is resolvable and you nowhere in your essay even suggested it. If Goldsmith advocates for censorship out of one side of his face and endorses it out the other, one of two things must be true. The first, which we may dismiss out of hand, is that he is a drooling idiot who does not understand that he is flatly contradicting himself. The alternative is that he actually means something to which he is not explicitly admitting. He must believe in the position that: “It’s not censorship when WE do it.” It is time to damn such creatures for advocating such a reprehensible and contemptible ideology. It’s not ignorance; it is entitled hubris.

  2. Despite our government’s ‘free speech’ rhetoric, our private media impose heavy censorship according to neither rules nor Constitutional guarantees. Is it surprising that only 6% of us fully trust our media?

    China’s constitution approves censorship; its laws delimit it; its censor publishes his rules and responds to critics; the incumbent is a leading public intellectual, who administrative lineage of Chief Censors stretches back 2200 years.

    The Chinese complain about censorship. Youngsters call it oppressive; their parents say it’s balanced; grandparents say it’s way too permissive), the end result of their public censorship is that 80% of them trust their media. And they’re smarter, better educated, and more widely traveled than us and have CNN and the BBC.

    Is it surprising that more than 80% of Chinese trust government media and, like Americans, few trust private media?

    “An alarmingly low number of Americans say they trust the media. Just 6 percent of people say they have a lot of confidence in the media, putting the news industry about equal to Congress and well below the public’s view of other institutions according to a study by the Media Insight Project, a partnership of The Associated Press-NORC Center for Public Affairs Research and the American Press Institute”.
    I examine this more carefully in this article, The China Hoax, which you are free to republish: https://www.unz.com/article/the-china-hoax/

  3. These people like Goldsmith aren’t just for censorship in favor of their side only. They are also in favor of removing the ability for employment, for banking, for fundraising, and as we see nationally, for even participating in elections. They are in favor of the one sided use of law enforcement, the jails, bail amounts, the intel agencies, the ability to protest, the idea that publicly “your group” should not be disparaged and on and on. The jig is up. No amount of denial will be believed.

  4. Turley, you’re no free speech absolutist, nor even truly pro free speech. You’re pro censorship. Full stop.

  5. If not for free speech we would not have discovered all of the lies we were fed about wearing masks, the efficacy of the vaccine and the shutdowns as well as the source of the virus itself. I will never believe that curtailing speech is the right thing to do.

  6. Jonathan: Jack Goldsmith is the Learned Hand Professor at Harvard Law School. He served as Asst. AG in the DOJ, Office of Legal Counsel; and Special Counsel to the DOJ. The guy comes with creds and does not seem be a someone who engages in exaggeration or making unfounded claims. This is not the first time you have charged Goldsmith with calling for Chinese-style censorship. Goldsmith says you have made the claim at least 20 times in articles and in posts. So your focus on Goldsmith prompted me to read his article in Lawfare (11/10) “I have not called for Chinese-style censorship of the Internet”–you referenced so I could form my own opinion.

    You start by saying you are not a “free speech absolutist”. That would come as a big to surprise to many of us. In a statement before the House back on 2/24/21 you referred to yourself as a “free speech purist”. When you speak before conservative audiences you are called a “free speech absolutist” which you don’t deny. Elon Musk calls himself a “free speech absolutist” and you continue to support Musk’s purchase of Twitter. But in recent days Musk has tried to assure advertisers he will maintain “content moderation” as an attempt to stop the advertising bleeding. He is blocking and casting out his critics. That means there are limits to “free speech” on Musk’s Twitter. What does that say about your claim Musk would bring “free speech” back to Twitter?

    I think, while Goldsmith does not favor Chinese-style internet censorship, he recognizes that some content moderation is a reality on the internet. Do we really want Twitter dominated by anti-semitic tropes, racism and other forms of hate speech? Even on your blog there are “free speech” limits. And probably the reason you can’t really say you are a “free speech absolutist” with a straight face. How is that different then Goldsmith’s position?

    1. the problem…as you clearly demonstrate is that people immediately call political opponents who advocate for closed border and legal immigration as racists. Or consider how easily liberals accuse their opponents of perpetuating ‘Jim Crow’, segregationists or racist tactics simply because they support sensible voting legislation including the use of government identification as means of verifying voters and minimizing voter fraud. And lets not forget the censorship and attacks employed by government and non-government entities against anyone who dared to disagree with government shutdowns, origin of COVID-19 or criticized mass immunizations as if we were in internment camps in China.

  7. So Isn’t the real issue that of harm? Not hurt feelings but real harm. We all know of the movie theater threshold but if your speech does actual harm it should be subject not to censorship but to a lawsuit. This includes public figures as well as the common folk. If what you say is true you better have the proof it is so.

  8. I was advocating for free speech to a friend who replied that he appreciated my point of view and “shared” my opinion… then he wrote “however ….” with a list of speech he did not support. My response was, if he shared my opinion, there would be no “however.” As Turley points out, this is not absolute. This does not include already criminal speech. The exceptions have to be few and obviously, egregiously criminal.

  9. “[G]overnments must play a large role in these practices to ensure that the internet is compatible with society norms and values.”

    In plain English: I’m for free speech, unless your opinions harm the “public interest.” The “public?” C’est moi.

    Said every tyrant in the 20th century.

  10. If COVID-19 taught us nothing else, it taught us that today’s “misinformation” is tomorrow’s truth. We’ve seen countless examples of suppression of free speech that later turned out to be accurate (but suppressed nonetheless).

    Three things remain absolutely true:
    1) The solution to “wrong” speech is *more* speech. And
    2) Those who oppose free speech have never turned out to be on the right side of history.
    3) Without free speech how can we tell who the dumbasses are?

  11. At this point, all you need to know is that he teaches at harvard. Or even is a teacher at a college (professor seems inappropriate) and his views can be assumed.

  12. The left believes in censorship. Turley should ask Goldsmith if the magazine that published his piece – The Atlantic – would publish Turley’s column. It wouldn’t, plain and simple. It would censor Turley like it censors all conservative writers. In 2018, The Atlantic hired Kevin D. Williamson, a former contrributir to the National Review. Williamson’s hiring unleashed a firestorm from the liberal employees of The Atlantic and he was summarily fired a month later. Look, they know they’re wrong on this but Goldsmith, being a professor at Harvard, knows he must go with the flow or his studentswill do to him what The Atlantic did to Williamson, tenure nothwithstanding.

  13. 1) Isn’t it crazy that those who hyperventilate about democracy generally support speech crackdowns to suit their politics? (2)Thanks for the term censorship deniers. (must credit you)

    The largest point: (3)>“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 society norms and values.”<

    Maturity is speech control? I thought it was the opposite. How did the internet flourish if not for free speech – or undeterred speech? But the worst part is "ensure internet is compatible with society norms and values." Yikes, oh those [their] values? Or the norms and values they, and now government partners, want us to have. The same people who want a breathing Constitution, revised to their standards and values. Of course when they and government determine them. That does not end well. Not much nuance is right! I don't remember any of that in the Constitution or the 1st amendment. Idk which bothers me most, their plans or their means?

    1. “Speech control” to ensure compatibility with “society norms and values” is simply censorship by the person exercising the control who decides what norms and values are allowed to be expressed on a particular platform. “Society” does not have many norms and values and cannot itself act; only people do and can. “Society” is mostly a process with many outcomes, including different norms and values. Selecting from among them those that are to be favoured is nothing but an act of power. Given how wrong people can be, that is a power no one should have.

      1. Daniel, did you write a letter to Goldsmith explaining your criticism?

        We talk about such things on the blog rendering our opinions but do we make sure they are heard? One of the best places is in his mailbox and perhaps to the university newspaper.

  14. How would Goldsmith feel about banning discussing “misinformation” on cell phones? Would he support the government having Verizon shut of the service of anyone saying the Laptop is real? Or that the virus started in a lab? Can we look forward to Biden and his fascist henchmen in the DOJ using voice recognition and algorithms to silence private phone calls that call Biden a dementia addled, crooked fabricator?

  15. “China was largely right, and the United States largely wrong, about the existence of such harms and the need to address them, either by public or private means, albeit in pursuit of very different values and ends in the two systems.”
    Goldsmith would do well to recall the Charles Lindbergh faction of pre-WW2 America and the romanticizing about the glory of the Nazi regime even as Hitler engaged in murderous oppression of his citizens. Though chastened by events of the war, Lindbergh never overcame his stroll down Tyranny Lane. Goldsmith looks like he’s three steps down the same path. Bootlickers to tyrants come in all sizes, shapes and manner of dress though mortar boards seem to predominate the sniveling breed’s head wear.


  16. If I were to extract and read only those textual passages directly attributable to Professor Goldsmith, -and not read anything else, my inference would be precisely as that which Professor Turley concludes. I find no room for equivocal interpretation.

  17. Government’s main job and goal is to grow. As it grows, there will be more rules and regulations, thus curtailing freedom for the masses.

  18. One thing I never expected to see in the United States was the advocating of censorship. The 1st Amendment was what made us different from the rest, even the Western Europeans that the Democrats want to emulate. I always thought that the importance of the 1st Amendment was clear and understood- while it makes us angry to hear things we don’t like, no one, and that means no one, is capable of knowing where to draw the line. So we have a 1st Amendment to protect us from people like Goldsmith. Now we have an academic elite telling us that censorship can be ok, and from Tuesday’s election results it sounds like a good part of the voters will be saying the same thing before long.

    1. Good for you for standing up to a bully and academic who agrees with China’s censorship, professor Turkey.
      I served in the military so that we all could enjoy democracy and express our opinions – from the elitists who consider themselves ‘educated’ and dismiss everyone else’s political opinions to those who were unable to attend college due to lack of handouts or not the specific minority Ivy and other colleges are seeking to provide tuition from their multi-million dollar endowments.
      Censorship is wrong! Especially as it is employed by Democrats who attempt to silence their political opponents because they disagree with their political views. One could consider ‘critical race theory’ as inaccurate and denigrating all whites and our public/private institutions but since academia embraced it, apparently efforts to expel it from school are considered censorship by parents who oppose it. Professor Goldsmith is believes he can aptly select censorship, and yet, where was he when Republicans were being dismissed and accosted by critics. Where was Mr Goldsmith when critics and zealots disrupt free speech at colleges and universities. Mr Goldsmith is no fan of those who disagree with his politics, unlike you Professor Turley. You routinely make it a point to rightly call out those who advocate for censorship or restricts others free speech, whether on the political left or right. Your initial assessment of Mr Goldsmith is dead on.

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