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.
What regimes in history have not allowed free speech. Third Reich, Castro Cuba, Russia, China, Venezuela, and North Korea just to name a few. With such historical lessons we have Democratic representatives in congress demanding limits on speech. The limiting of speech always comes with a desire for more power for the narcissist when they are in control. When they are so superior to the rest of us why should we be allowed to hear anything other than what they decide we should hear? They walk hand in hand with the illustrious leaders of the past known as Stalin, Marx and Adolf. Fine company indeed. Considering speech there is not a sliver of difference between the new socialist of America and the old socialist of the past. We should not be lulled to sleep by the glittering trinkets they offer.
Dream team. The big guy will run for re-election in 2024. His new running mate will be Senator Fetterman. Won’t that beat all.
If it is the will of the Deep Deep State, it will come to pass.
Nothing is inevitable or inexorable unless your’re too damn lazy to stand up and stop it. By any means necessary if it has to come to that. Goldsmith is not pro free speech. He got called out and is now trying and failing to split hairs in defense of what he wrote. Has there been something new placed in the water around Harvard, the Ivy League, and the Northeast recently. Seems to be neurotoxic.
“Live election updates: Control of the Senate and the House remains too close to call”
If only the election results were ‘live’.
*this is the 21st century
Hateful and harmful is in the eye of the beholder. I’ve had comments denied on Aol/Yahoo news because they said “Someone might fight that Offensive”. I said nothing bad only a different point of view. In other words let’s not offend the snowflakes. My answer is if they are so easily offended they shouldn’t be reading the news.
Rick Nelson’s, Garden Party, song says it well. “You can’t please everyone, so you got to please yourself.”
Most people aren’t even in a group I consider crass in their communication or posts. They’re only stating their opinion, though it’s possible it is not in alignment with mine. I may not care enough to engage them; but if i do, I want to be able to communicate my opinions freely too. Let people communicate. If you feel strongly, one way or another, about what they say, voice your thoughts.
Of course, all the usual things any thinking person knows, usually without a doubt – do not yell fire in a crowded, or even minimally packed theater, and other such things like this.
But, where does fantasy come into play. I frequently wonder if the world of censorship can possibly deal with such things. Myself, I enjoy a good yarn now and then. I don’t think censors can tell when someone is pulling someone else’s leg and feel they must intervene for fear someone somewhere may take it as fact or dis/misinformation. It’s a shame we are at this juncture.
Fight with all your worth. More freedom depends on the freedom of speech being upheld.
RE:”growing divide among academics and advocates over censorship..” Same old rodeo dog and pony show!!” It all boils down to whose ox is being gored!! They’re all OK with it as long as their point of view prevails.
Professor Turley,
The Atlantic article is not advocacy for more censorship; rather it seems to recount the inevitably of censorship. The norms and values he refers to are things like government surveillance of child pornography online, which is censorship which I am sure you agree with. He does not advocate for Chinese-style anything. China being “right” is a reference to the necessity for some degree of censorship. His article doesn’t really make much of an argument at all. The purpose is expository rather than persuasive.
We have spent centuries hammering down the legitimate domain of government censorship to very very few things.
Any effort to expand that domain is very bad for all of us.
Governmnt should and MUST be confined to the narrowest possible domain for censorship,
And can not circumvent that – as we have seen, by acting through proxies.
What government can not censor – it can not ask others to censor.
Private censorship should be left to the free markets.
In a free markets – broad platforms will have to restrict censorhip to only those things that have near universal agreement.
Otherwise the platform will decline
Niche platforms can conform to the standards of those in that niche.
On LGBTQIA+_RUS using the wrong pronoun can get you kicked off.
On twitter it should not.
Actual free markets will ultimately pressure the censorship in a silo to match the views of the majority of the silo.
Broad silo’s will have limited censorship.
Narrow ones broader.
This will in the long run happen automatically.
Child pornography is hardly self-expression, and certainly not related to freedom of speech.
Also, there are plenty of examples in the West of censorship of free speech, often using a vaguely defined or undefined category called “hate speech”—there seems little reason for using China as an example, unless to express support of its example of more extreme censorship than is already found in the West.
This is just legally incorrect. Freedom of speech includes visual content other than words. Your right to post a meme is part of the freedom of speech. What if that post contains content that appeals to the “prurient interest”? That is the Supreme Court standard for determining whether the government may infringe on obscene content. Child porn would clearly be an example of government control (via making it illegal).
Anonymous has to resort to using banning (censoring) child porn, a crime, with things like the government telling Twitter to ban the Laptop story. This isn’t an argument, it is pathetic justification for censoring things you don’t like as compared to things that are actual crimes.
Hey Anonymous, how about if the new Twitter bans liberals from saying that men can get pregnant or that men can play in women’s sports, is that the same as banning child porn? The lengths partisans will go to make a point can really be laughable.
Y’all didn’t read the Atlantic article. Child porn is not my contribution to this discussion but Goldsmith’s example of the need for some degree of government control of online speech forums. A free speech absolutist would have no problem with child porn posted online. More speech is better than less, as Turley likes to say.
I personally don’t care what Musk does. It is his company. But, he certainly has indicated that he will in fact engage in censorship, because, as Goldsmith argues, some degree of censorship is necessary. Case in point – his desire to reign in fake blue check accounts. A free speech absolutist would have no problem with a fake “verified” Pepsi account admitting that Coke is better, but once Musk hires back the censors, he will clamp down on that.
“no problem with child porn “
Child porn is illegal. You sound like a supporter. I’ll visit you in jail.
That’s what you gleaned from this post? Really? Yikes.
Yes. I don’t see a denial. Enjoy your child porn at the expense of children.
Criminalizing content is the definition of government control over free speech.
Are you arguing that the government passing a law to criminalize content is not government intervention on speech?
Please help me understand that argument.
Abusing children is both illegal and immoral.
I agree with you. So does Goldsmith. Those morals and values Goldsmith discussed in his article, which Turley purports to have no idea about, requirement government intervention!
Sounds like you favor government control then when your morals require it? Interesting…
Society determines certain laws. For instance, we don’t approve of murderers running loose on the streets, so we arrest them. Though that is part of my morality, it doesn’t seem to be part of yours. However, such laws are mostly not controlled by the federal government but left to the states. That is federalism, just one of many things you do not wish to understand.
If you wish to be a child abuser go to a state where the laws are the most tolerant for your kind.
We are living in a nation of unfree thought, speech nor are our actions free.
And government uses coercion to enforce a one sided compliance.
And yet academics and government entities are on that bandwagon.
Those whose job and obligation it is to guarantee our rights see their authority as entitlement to enforce their ideology.
What is the common name for such a state?
“As academics, none of us are beyond such errors but the test of principle is to admit our errors.”
But if that were the national consensus.
Growing up in China, I witnessed that people in power at every level always want to silence voices they do not like. It is part of human nature and censorship makes the job easier for people in power. Censorship made general public in China more vulnerable to real misinformation as they never had opportunities to judge for themselves about information. In a society with free speech, the harm caused by misinformation is transient and reversible, since the truth will always prevail in the end. And the harm caused by misinformation gives public immunity for subsequent misinformation and makes people more mature and smarter over the time.
Y: A very good -and wise- comment.
If you are a young person, you have a very insightful, perceptive mind for your presumed age.
(If you are an older person, you still are a sage!)
Dear Prof Turley,
Was just passing by and noticed you were burning the midnight oil (good work).
Sticks and stones may break my bones but words will never hurt me. And I agree with you about the ‘internet’. The greatest invention since the light bulb .. . and its ever expanding matrix of global ramifications which are only now dimly perceived by the ‘Kings & Rulers’ of earth.
Quite frankly, presently I do not share your initial underlying respect for Harvard Professors in toto. Obama was a Harvard man, and G.W. for heavens sakes. .. still it’s a step up from Trump U.
>”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.”
The role government could play is to limit the ability of private business/org.s to control the [digital] town square market place of ideas and thought. I recommend kneecapping large social media tech companies at around 5% market share (Twitter currently owns 70.93%).
>”Goldsmith insisted “the trend toward greater surveillance and speech control here, and toward the growing involvement of government, is undeniable and likely inexorable.”
Professor Goldsmith has it all backwards. No government is an island and the global ‘internet’ will not be controlled. .. what a rube.
*if you need me, I will call you
Regarding your statement, “I recommend kneecapping large social media tech companies at around 5% market share”, that sounds like a good policy (of course, the actual figure may be debatable).
However, I would go further to say that EVERY corporation and business should be similarly capped in permitted market control. The concept of financial institutions (for example) as being “too big to fail” is exactly the wrong situation to allow — “too big to be allowed to continue without being split up”, like Bell Telephone in the 1980’s, would be preferable.
“I recommend kneecapping large social media tech companies at around 5% market share (Twitter currently owns 70.93%).”
So your “solution” to government controls is more government controls — of the most horrific type: punishing those individuals and companies who *created* the digital “town squares.”
Keep up with the unprincipled arguments, and you’ll keep losing the culture to the Left.
>”So your “solution” to government controls is more government controls …”
For better or worse gov. *does* ‘control’ free speech, hopefully through the exercise of the 1st Amendment, and the laws governing free speech are sown thick. Twitter Inc. only has propriatary ‘terms of service’ agreements.
While I have nothing against Twitter’s terms of service (I have a Twitter account: 0 followers, following 0) personally, I would vehemently oppose Twitter controlling 70.97% of the free marketplace of ideas, thought or habit.
Moreover, with control/ownership of ‘70.97%’ of the social media marketplace there is always the possibility of gov. ‘censorship-by-surrogate’ – as Prof Turley describes it – for example Hunter Biden’s Laptop and out-right banning the POTUS (while I don’t think Trump is the answer to any social ill, banning the President of The United States of America from social discourse is definitely a bridge too far imo .. . who does Twitter think they are?).
>”Keep up with the unprincipled arguments, and you’ll keep losing the culture to the Left.”
Well, I will do my best to adhere to rational, authoritative and principled arguments .. . but ‘Left’ & right are directional headings.
*but I know what you mean.
God Bless Professor Turley.
The Barbarians Are at the Gate.
He Alone Stands in the Gap.
Natural and God-given rights and freedoms existed before government was conceived.
Americans are not asking Jack— or anyone else for them; Americans already possess them.
Most certainly, natural and God-given rights and freedoms existed before the antithetical, anti-Constitutional, and anti-American, globalist zealot, Jack— Goldsmith, came into physical form, such as it is, and they existed before Jack—‘s “globalist” ally, if not Jack—‘s dearest of leaders, Xi Jinping.
Free people do not need any of Jack—‘s arbitrary dictates and edicts, free people need only the Constitution and Bill of Rights, 1789.
Decent people do not need Jack’s admonishments not to covet, steal or kill, etc., decent people need only the Ten Commandments, which were written, as was the Constitution, to stand in perpetuity (excepting only non-“injurious” amendment).
No woman can be half pregnant.
If a man is half right, he is half wrong, and if a man is half wrong, he is all wrong – as are you Jack—.
If the freedom of speech is not absolute, the freedom of speech does not exist.
If freedom of speech does not exist, tyranny and dictatorship does.
Jack Goldsmith is all-in on the ruse of the “dictatorship of the proletariat” of Karl Marx, which is actually the dictatorship of the Marxist dictators.
The modern way of presenting that totalitarian despotism is through the use of the ruse and red-herring, “globalism.”
Jack, the liberals, progressives, socialists, democrats, RINOs, AINOs et al. prefer to be known as the innocent, beneficent and, oh, my yes, wholly innocuous, wait for it, “globalists.”
In fact, Jack Goldsmith and the communists (liberals, progressives, socialists, democrats, RINOs, AINOs) are the direct and mortal enemies of the American thesis: Freedom and Self-Reliance, free enterprise, the Constitution, the Bill of Rights, America and Americans.
Not to put too fine a point on it.
“…ALL THE RESERVATIONS OF PARTICULAR RIGHTS OR PRIVILEGES WOULD AMOUNT TO NOTHING…”
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“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what they forbid.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
Should the Goldsmith article be censored as “misinformation”?
WISEOLDLAWYER
wiseoldlawyer says:
October 30, 2022 at 6:30 AM
George, you left out the nail the left has always used to hang all that spending on. The General Welfare clause. That is vague enough to cover everything you claim to be unconstitutional from conception. I know, as you do, that a proper reading of Article 1 section 8 would conclude that the specifics that follow the General Welfare clause are intended to be its exclusive definition, but it is too late to put that toothpaste back into the tube.
Reply
George says:
October 30, 2022 at 4:55 PM
Thank you so much for your irrefutable brilliance. Words mean things. General means all, which means the whole. The Framers used defined words in the Constitution to facilitate understanding by all or the whole population. That you don’t understand, does not bear. General Welfare means ALL WELL PROCEED. Commodities and services necessary for ALL, or the WHOLE, to proceed well are water, sewer, roads, electricity, post office, trash pick-up, etc. Social Security, Medicare, cash assistance, food stamps, public housing, Obamacare, social services, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, etc., constitute individual welfare, specific welfare, particular welfare, favor or charity, not “general” or all. The Constitution does not provide Congress any power to tax for individual welfare, specific welfare, particular welfare, favor or charity.
___________________________________________________________________________________________________________
Dictionary.com
general
[ jen-er-uhl ]
adjective
of or relating to all persons or things belonging to a group or category: a general meeting of the employees.
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Merriam-Webster
general
adjective
gen·er·al | \ ˈjen-rəl
, ˈje-nə- \
Definition of general
1 : involving, applicable to, or affecting the whole
You can have all the free speech you wish as long as it agrees with mine. How in the Lords name have we survived all these years until recently, living with free speech or is it questioning questionable positions of questionable people?
Professor Goldsmith and his fellow censors should put up or shut up! Let us see a draft law that defines hate speech, dis/misinformation and all the other wrong-thinks. Will this new censorship law comply with woke standards, where hate is in the eye of the beholder? Will there be compensation for someone who is censored for wrong-think and then is subsequently found to have been correct. Pointing to China for inspiration on the parameters of free thinking today is like the post war leftists pointing to Stalin’s Soviet Union as an exemplar of a fair society. Professor Goldsmith and his friends will end up looking as foolish over China as his leftist predecessors did over the Soviet Union.
I wonder if Professor Goldsmith had an internet connection in the mid-1990s. If he did, surely he was aware of Usenet, a vast unsupervised, ungoverned network in which some discussion groups were totally unmoderated. Somehow Usenet did not endanger anything or anyone, so far as I am aware–and at that time, if you didn’t like unmoderated groups, you could participate in groups that were moderated. Is the world so different that this model has now become a threat?
Nostalgia….I remember back in the 1980’s when mail addresses still used “!”.
Shut up and obey! Do not ask questions! We know what is best for you!
~Your liberal friends in academia, the media and government~
To simplify the topic, there’s no such thing as hate speech; only speech that some people hate.