WashU Expert: Clear principles needed for meaningful digital free expression

Our daily lives revolve around the internet, whether it’s personal contact, news or the sharing of political views. As such, there remains significant work to do so the internet can deal with the real challenges it faces, rather than ones it fails to consider, an internet privacy expert at Washington University in St. Louis argues in a new paper.

This isn’t merely a Facebook matter. It’s a mandatory societal change, a necessary revolution to protect both free expression and democratic self-government.

“This is a real challenge, and whether and how we respond to it will be one of the defining legacies of our time,” said Neil Richards, the Thomas and Karole Green Professor of Law and internationally renowned expert on privacy law and freedom of expression.

Richards

“At stake is nothing less than self-government itself,” Richards wrote in the paper “Four Principles for Digital Expression,” co-authored with Danielle Keats Citron of the University of Maryland Francis King Carey School of Law.

The paper is forthcoming in the Washington University Law Review.

The authors argue that much of our public debate about the internet fails to understand how free expression in a digital age actually works, and they suggest a four-part path to meaningful digital free expression:

  • Avoid magical thinking. We must make policy for the internet and society we actually have, not what we might want. Many court cases and discussions of free expression fail to understand how the internet actually works, from the fact that powerful corporations wield massive power over free speech in practice to the problems of hate speech, trolls, fake news and “doxing,” which is distributing someone’s personal information online without consent.
  • Inputs matter. If we want to have meaningful free expression in practice, we need to make sure that speakers (all of us) actually can speak. Three inputs that are critically important to digital expression are intellectual privacy, protection from harassment and solving the problem of the “digital divide,” in which those with resources have vastly greater access to digital technologies.
  • Structure matters. If we want to make sure that our commitments to free expression survive their transition to digital technologies, we need to pay attention to the social, economic and technical structures that facilitate digital expression. One particularly important structure, though by no means the only one, will be the preservation of network neutrality, the idea that the powerful corporations that control the channels of digital expression cannot discriminate against speakers or viewpoints they dislike or which fail to pay access fees to the channels’ owners.
  • Values matter. If we are committed to ensuring that our expressive traditions survive the translation to the digital age, nurturing the capacity of free speech in privately controlled online environments will be essential. This means that we need to make sure that the hard-won basic values of free speech survive in our digital environment, like the ability to freely criticize the government.

“As we move cautiously but realistically into our digital brave new world, we should keep in mind the four principles we have outlined in this article — the avoidance of magical thinking, the importance of inputs and structure, and the need to remain true to the values that have animated our First Amendment tradition — when dealing with private power in addition to that of the state,” the authors wrote. “Other principles will inevitably be needed, but these four are a good place to start.”

“Underlying these principles is a unifying normative commitment: If we want to ensure that our commitment to long-standing democratic theories of free expression survives its translation to the digital environment, we need to take a long, hard look at the digital public sphere we actually have, rather than one that we might want or one that has been advertised to us by Silicon Valley,” they wrote.

At a time when consumers have been bombarded with news of Russian hacking, big-data breaches and mistrust of some corners of the web, Richards and his co-author are optimistic about the future of digital free expression, but they warn that we must make sure to protect it.

In an era when America’s president is openly hostile to the press, the authors argue that we must remain attentive to the cultural, legal and technological protections for democratic government’s most important protection: meaningful free expression.

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