The corporate enablers--and disablers--of free speech

A few days ago I wrote a lengthy comment responding to a post by Wendy Kaminer called "Wikileaks and the Unfree Market". In that post, she observes that "corporate control over speech is nothing new":

Authors and journalists in the pre-digital age were dependent on publishers willing to disseminate their work -- without publishing support, they were mere street corner pamphleteers.... Still, recent demonstrations of corporate power over WikiLeaks seemed to resonate with the force of revelation, mocking any lingering illusions of the Internet as a frontier free from corporate as well as state control.

Yes, it's true that the Internet potentially offers significantly larger audiences to electronic pamphleteers than they'd ever find on any street corner, even in Times Square; and for better and worse, a few break through, thanks to their demagoguery or thoughtfulness, marketing acumen or luck. But the Internet is an ocean, and without a berth on a corporate or corporate sponsored ship, most people will quickly sink, or swim unnoticed. And, while the street is a public place in which the government's powers of eviction are limited by First Amendment rights, the Internet has always been (pardon the metaphor shift) a gated community. If virtually anyone can enter, the right to remain and speak your mind is generally subject to corporate control, as the WikiLeaks fracas has shown.

...

I'm not dismissing concerns about the threat that corporate control and homogenization of speech poses to the flow of information and dissent. Having worked as a freelance writer for some 30 years, I am only too keenly aware of marketplace censorship. But it's a fact of life, and First Amendment editorial freedoms, which the private press enjoys.... There is no significant political constituency for free speech on the Internet. The Electronic Frontier Foundation is right: "Online Speech is Only as Strong as the Weakest Intermediary." But we the people, not private corporations, are the weakest links in the chain.

My response, in which I try to make the argument that there is in fact something unprecedented going on here:

Wendy, I think you are mistaken in viewing Wikileaks' position as no different in principle than that of a pre-digital age individual "dependent on publishers willing to disseminate their work". Wikileaks is not a single author or publisher--it is itself a media organization, no different in principle (I argue) than the New York Times.

Suppose Lieberman had called for all companies to sever ties with the New York Times, so that the NYT suddenly found nobody could pay them using a credit card; their bank accounts were frozen; their domain name was deleted by their domain name provider; and that whoever they rent their servers from dropped them as a customer, essentially hounding the NYT from the internet. Does this strike you as analogous to a pre-digital age author who cannot find a publisher for his political pamphlet? It seems to me the proper pre-digital age analogy would be if the government told all paper and ink companies to stop selling their wares to a particular newspaper, and took steps (freezing accounts, making it difficult to transfer money) to keep that newspaper from functioning on a day-to-day basis. To my knowledge such a snuffing-out of a publisher, orchestrated by the US government in concert with corporate interests, is indeed unprecedented.

I take your point that free speech has always been dependent on the distribution mechanisms provided by corporate entities. But what has changed is the degree of this dependence, and the higher-ordered-ness of the dependence. In the pre-digital age, you would need money of course to print a newspaper, but political and cultural norms rendered the idea outrageous that the government could suffocate the operation by denying it the raw materials it needs to function or the financial infrastructure (bank accounts, credit transfers, loans, etc.) is needs to survive as a business. In other words, the individual was dependent on a wealthy corporate publisher; but the corporate publisher was not dependent on some higher, more powerful corporate entity. What we are seeing in the Wikileaks case is unprecedented and, I think, extremely alarming: now political speech is at the mercy of entities further upstream in the corporate food chain (Visa, MasterCard, Amazon), handing the government a far more powerful means for controlling political speech than anything that has come before.

My feeling is that large corporations like Amazon and MasterCard--that provide a platform for some general activity that is abstracted from the specifics of the particular activities that take place on the platform--do not like being in the position of free-speech arbiter or government-enforcer. I think their preferred outcome would be a law that ties their hands and prevents them legally from meddling in cases such as these without some kind of judicial court order, thereby protecting them from the possibility of political recriminations for not complying with the government. For example, in the current case, Amazon would have simply said to Lieberman: "Sorry! We legally cannot kick Wikileaks off our servers. You have to get a court order for that."

I would just add a couple of things. First, interestingly enough it turns out that the New York Times rents its server space from none other than--you guessed it--Amazon. So that comparison turned out to be pretty apt: if the government can get Amazon to kick Wikileaks off its servers, what's stopping it, in principle, from getting Amazon to kick the New York Times off its servers?

Second, it is worth pointing out that, ironically, the leaked cables themselves provide an insight into the ways that large corporations like Visa and MasterCard can be beholden to the US government. According to the Guardian, documents show that the US government was actively involved in lobbying the Russian legislature on Visa's and MasterCard's behalves, to ensure that the card payment companies were not "adversely affected" by some proposed legislation there. This clearly illustrates that for an international corporation to take a stand against a government request--however informally or implicitly made--is to risk political recriminations in the form of losing out to one's competitors when it comes to special favors such as these.

Not about free speech

Roger Cohen has an op-ed today about a kerfuffle in France surrounding the firing of a political cartoonist:

The offending piece in Charlie Hebdo, a pillar of the left-libertarian media establishment, was penned last month by a 79-year-old columnist-cartoonist who goes by the name of Bob Siné. He described the plans — since denied — of Jean Sarkozy, 21, to convert to Judaism before marrying Jessica Sebaoun-Darty....

“He’ll go far in life, this little fellow!” Siné wrote of Sarkozy Jr.

He added, in a separate item on whether Muslims should abandon their traditions, that: “Honestly, between a Muslim in a chador and a shaved Jewess, my choice is made!”

[...]

Philippe Val, the editor of Charlie Hebdo, requested an apology from Siné, to which the veteran “chroniqueur” replied, with some brio it must be said, that he would much rather cut off his testicles.

That did it for Val, who promptly fired Siné, who shot back by bringing legal action against the paper for “defamation.”

Cohen believes that Siné crossed the line into anti-Semitism, but that he should not have been fired, arguing that such drastic action risks making Siné into a martyr and "stirring, rather than assuaging, what remains of French anti-Semitism". Fair enough.

But Cohen also criticizes the firing of Siné on free speech grounds, which I don't think makes any sense. Says Cohen:

I’m with Justice Oliver Wendell Holmes Jr., who wrote in 1919 that: “I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”

[...]

...I remain a free-speech absolutist. In that spirit, I defended the publication of the Prophet Muhammad cartoons. Curtailing speech is generally far more dangerous than allowing even vile views to be aired, not least by a cantankerous has-been like Siné.

I'm glad that Cohen feels so strongly about free speech, but it's not really applicable to the situation he describes. Free speech, after all, is the right of an individual to express viewpoints without fear of retribution from the government. It also imposes on government a duty to protect an expresser of unpopular viewpoints from violence or suppression at the hands of his fellow citizens. What free speech does not do is protect an employee of a newspaper from being fired by his editor. The cartoonist Siné ought to have the right to say whatever anti-Semitic thing he wants--but that doesn't entail a right to a megaphone to broadcast those views.

Those who accuse Charlie Hebdo of a double standard for printing the infamous "Muhammad Cartoons" and yet firing Siné for his offensive remarks are unclear on the same point. In the case of the Muhammad Cartoons, a Danish newspaper was materially threatened and intimidated by a large number of offended Muslims. Reprinting the cartoons in solidarity with that paper really was an assertion of free speech, because it forced the government to uphold its duty to protect those with unpopular views (although personally, I thought the reprinting unnecessary and a little overdramatic). Unless we interpret Siné's gig at Charlie Hebdo as a "right"--something that it is clearly not--I don't see how refraining from firing him for his offensive remarks stands up in any way for free speech or rights in general.

Of course, all that said, an editor may freely choose to adopt an editorial philosophy that borrows from the logic of free speech, and permit the staff to express whatever inflammatory views it wants, even if they contradict the publication's mission. Indeed, as Cohen suggests, there can be wisdom in letting unpopular views be expressed unhindered so that they can be properly discredited in the marketplace of ideas.

However, there are limits to this approach: an off-kilter remark now and again might be permissible, but if a consistent pattern of offensive bigotry emerges, the editor may want to rethink having such a person on staff. In this case it looks as though the editor Philippe Val did precisely that.

A silly city

It made national headlines--and the Daily Show--a few weeks ago: the Berkeley City Council passed a resolution stating that the US Marines and their recruiting center near campus were "uninvited" and "unwelcome" in the city, and even went so far as to grant a parking space in front of the recruitment center to Code Pink, which is an anti-war group that has been haranguing the Marines for months. There has since been a national outcry, persuading the City Counsel to reconsider its actions.

Of course, none of this made any sense to begin with. In the first place, the government should never be in the business of granting special legal privileges to one political faction at the expense of another. Free speech entitles all players in the marketplace of ideas to present their argument to the community without government interference. What the Berkeley City Counsel is doing is selectively curtailing this freedom for those they disagree with (the US Marine Corps) by granting to their political opponents special powers of harassment (a special parking spot for Code Pink right in front of the recruitment center).

The second reason none of this made sense is because the US Marine Corps itself is an unlikely target of derision for anyone who opposes the Iraq War. President Bush and a complacent Congress made the decision to invade Iraq, not the Marines.

And before you accuse me of invoking the Nuremberg defense--i.e., of claiming that the Marines are not responsible for the war because they "are just following orders"--let me just preempt it by saying that, in my view, such a critique is not applicable in this case. This kind of defense of a soldier's actions only fails in extreme cases where the soldier is ordered to carry out atrocities or war crimes. In such cases, the soldier is being ordered to do something that is considered to be so categorically wrong that it cannot possibly be justified. Since there is no question that the order is unjustified, the soldier is obligated to refuse to carry it out. However, most orders require that the soldier do something that may or may not be justified, depending on the circumstances. For example, the soldier may be asked to invade a sovereign nation (unless you are hopelessly pacifist, you will agree that this is sometimes justified). But the principle of civilian control of the military demands that the soldier leave the political question of whether the orders are justified to the civilians in charge. For soldiers to act otherwise would be for them to assume a veto power over the civilian authorities that is inconsistent with the principle of civilian control of the military.

It is undoubtedly possible that the invasion of a sovereign country like Iraq could be completely justified; whether or not it actually is justified is an open political question to be debated and resolved by elected politicians. If soldiers are to defer to the democratic process, then they have no choice but to "just follow orders", regardless of their political opinions. The only time that those soldiers should refuse to follow orders is when those orders could not possibly be justified, as in the case of genocide and other war crimes and atrocities.

The Berkeley City Council and Code Pink seem to think that soldiers bear responsibility--and should shoulder the blame--for any unjustified action they are ordered to do. But this is unfair, because the only way for the soldiers to absolve themselves of this would be for them to sacrifice the principle of military subservience to the civilian government. And I don't think anyone wants them to do that.