New Media Have a Free Speech Problem
     

The author is senior vice president and general counsel of the National Religious Broadcasters.

Two years ago, I took a closer look at the way in which Web-based “new media platforms” were changing — faster than the speed of sound it seemed — the entire landscape of broadcasting, as well as communications.

There is nothing new about the new media revolution, of course. But it was the free speech implications of this communications tsunami that both intrigued and rattled me.

As the general counsel for NRB, an association that represents radio and television stations and networks, webcasters and publishers (among others) who carry distinctly Christian content, I spend every day dealing with the statutory and regulatory policies and constitutional issues that affect traditional broadcast platforms. Like others who also come from the legal corner of the communications world, I also try to keep abreast of the changing tides of electronic media in order to see how those new currents might affect freedom of speech — and more particularly from NRB’s perspective, religious free speech.

So when I reviewed the meteoric rise and the monolithic market dominance of a handful of new media tech companies, I thought I would give them a closer look. I am glad I did.

Big names

For the next 18 months I directed an effort through our Office of General Counsel, aided by several key NRB legal partners, to evaluate the actual corporate practices as well as the written terms of use policies of eight large new media corporations.

The names are familiar ones: Apple (specifically the iTunes App Store), Facebook, Google, MySpace and Twitter, together with Internet service providers AT&T, Comcast and Verizon.

What we found was shocking. The results of our analysis have been released in our white paper, “True Liberty in a New Media Age,” available at our website, NRB.org.

What also resulted was the creation of our permanent, ongoing freedom of speech campaign, the John Milton Project for Religious Free Speech. In addition to being a famous epic English poet of Christian-themed works in the 17th century (“Paradise Lost”), Milton was an astute observer of public policy. When a small cadre of printers looked ready to collaborate with the government’s idea of granting them a license to print in exchange for their agreement to censor unpopular ideas, Milton cried foul.

His argument for freedom of speech and for an open marketplace of ideas where good ideas would be allowed to rise and bad ones would inevitably fall, became a classic. Our founders relied on Milton’s theory more than any other source during the free speech debates over the First Amendment.

After our review of the current new media situation, we concluded that Twitter was the only one of those eight large corporations that deserved a passing grade. Its policies not only demonstrate a respect for free speech, but even further, it has, up to now at least, never practiced viewpoint censorship.

The other seven companies, by contrast, forbid anything on their platforms that they deem to constitute “hate speech” — a dangerously undefined phrase that, more often than not, is used by ideologues to suppress politically incorrect ideas.

But the problems don’t end there. Using vague, ambiguous terminology, these companies ban whole categories of speech — any content that is “offensive,” or “inflammatory,” or which promotes a “politically religious agenda,” or that dares to say anything critical about other religions, or which takes on controversial issues like abortion or same-sex marriage.

Some of them promise to censor any form of speech on their platforms that their users might find objectionable — regardless of whether those reasons have any merit.

These new media giants have declared that they possess both the right and the will to use standard-less, arbitrary power to shut down ideas they simply do not like. Considering how a handful of these giant technology companies rule entire fields of Web-based communications, the threat to freedom of discourse is breathtaking.

Consequences

If this were simply a problem with the written policies of new media platforms, the civil liberty risk would be less. But policies — like ideas — have consequences.

Google and Apple’s iTunes App Store have already committed overt censorship of religious viewpoints. In December 2010 and again in March 2011, Apple removed two apps — after they were developed, vetted, approved and were placed in the iTunes App Store — simply because gay rights groups complained about their orthodox Christian ideas.

First, Apple stripped the Manhattan Declaration app off its iTunes App Store because of its view that marriage should be defined as one-man and one-woman. Next, Apple blocked the Exodus International App because that Christian ministry had the audacity to minister to persons in a gay lifestyle who wanted to get out — a concept that has apparently been declared an intellectual crime against humanity by the thought police. Gay online organizers succeeded in shaming Apple into remove those apps simply because they didn’t like the mainstream evangelical perspective on gay issues. Of the 425,000 apps currently on Apple’s iTunes store, the only otherwise lawful content that as been censored has been religious expression.

Google has also exhibited a predisposition against religious content.

Not only did they practice censorship of religious viewpoints while they maintained their China platform, but they also attempted to block a Christian, pro-life ad on their search engine. It was only after a lawsuit in England ensued that they reluctantly retreated. Earlier this year they established new guidelines for their fabulous Web tool, “Google for Non-Profits.” It had been available to all non-profits at a little or no cost. In March, however, Google announced that churches and other faith groups would be excluded from their program — only secular non-profits need apply.

Facebook, which has partnered with gay rights groups and which has promised to stamp out homophobia on its social networking site, is poised to join this “ideas too dicey to debate” club.

A better idea

These past practices and current policies of the giant new media platforms are tremendously significant for every broadcaster.

When we recently convened a panel discussion at the National Press Club in Washington to discuss these trends and the content of our report, former FCC Commissioner Harold Furchtgott Roth, now founder/director of the Center for Economics of the Internet of the Hudson Institute, one of our panelists, called our findings “deeply troubling.”

The others who joined me in our roundtable — Colby May, senior counsel and director (Washington office) of the American Center for Law and Justice; Suzanne Caruso, associate dean for external affairs, Liberty University School of Law; and Brian Walsh, executive director of the American Religious Freedom Program of the Ethics and Public Policy Institute — were equally appalled.

NRB is not looking for some new federal rule or a market-entangling lawsuit. The exact legal status of the Internet, in terms of the free speech obligations of new media companies that use it, profit from it and dominate it, is still a frontier area of law.

What we are really after is a voluntary recognition from these Web-based giants of their civil liberty responsibilities.

What is the standard that ought to prevail? Why not use the current free speech values that have been articulated by the Supreme Court: Other than that short list of narrow, well-defined categories of speech that can be deemed illegal for content reasons (child pornography, incitement to violence, criminal obscenity, “fighting words” etc.), everything else (something we call “otherwise lawful expression”) should be permitted.

Lawful ideas

NRB will try to initiate a dialogue with these companies. We will, of course, be thanking Twitter for doing it the right way. We will also be asking the hard questions of the other Web companies and ISPs. They may be tech giants, but they have to be held accountable to the American citizens they seek to serve and from whom they have generously profited.

Free speech is too important a value to be stomped underfoot by the fast-step march of companies that prize tech innovation and market dominance over liberty. We wouldn’t tolerate our local telephone company refusing to give us phone service because of our political views — neither should we permit these new media platforms to block our otherwise lawful religious ideas because they are unpopular with certain vocal, activist groups.

John Witherspoon, a signer of the America’s Declaration of Independence and a Scottish preacher, was the sixth president of what would later be called Princeton University. He mentored a host of men who would later become our nation’s earliest presidents, members of Congress and Supreme Court justices.

He once remarked that religious freedom is so intertwined with civil liberty that to do harm to the one invariably injures the other. Regardless of anyone’s personal worldview, or religious beliefs — or lack of them — freedom of speech over new media platforms is too important to leave solely to the whims of tech innovators. If that happens, the next ideas that are censored from these Web-based venues could be your own.

Comment on this or any article. Write to radioworld@nbmedia.com.


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