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.