The only former president of the United States to ever make a living teaching constitutional law came to Stanford University last Thursday to propose greater regulation of speech both by the government and by private companies.
"So much of the conversation around disinformation is focused on what people post. The bigger issue is what content these platforms promote."
Actually, the bigger issue is how much protection the platforms receive for speech. President Barack Obama endorsed efforts to strip the platforms of the virtually absolute shield from liability that Section 230 of the Communications Decency Act provides social media platforms for content that their users post.
"These companies need to have some other North Star than just making money and increasing profit shares," the president said.
So does that make censorship a good thing? Who will make the rules, who will enforce them, and perhaps most critically, what will government do to regulate the enforcers?
There is obviously reason for concern. The extent of disinformation on the internet is not, itself, a subject of much debate. I used to ask my students to compete, in my First Amendment class, to see who could find the "worst" postings. I discontinued the contest because it was, frankly, terrifying.
Advocates of free speech will rarely be heard to argue, at least not these days, that all speech is necessarily valuable or that more speech is always better than less speech. It isn't. All speech is not equal. And speech — even pure speech — is powerful, which is why it is protected. It is also not necessarily true that in the marketplace of ideas, the good ideas always win. They don't. Sometimes jihad wins.
Or, as in 2016, Donald Trump did. The former president who once used social media to his advantage as a candidate but who was also plagued by disinformation about his own birth and citizenship reflected on his failure to perceive the threat to the integrity of the 2016 election.
"What does still nag at me was my failure to fully appreciate how susceptible we had become to lies and conspiracy theories, despite being a target of disinformation myself," he said, referring to the "birther" business that Trump himself supported — when he was still free to tweet about such things.
Now Trump is banned, a decision that I happen to disagree with almost as much as I disagree with everything Trump stands for. Which is no reason to ban him, for goodness' sake. Political speech may be the most dangerous, but it is the most deserving of protection.
No, the reason I served for many years on the national board of the American Civil Liberties Union, and as president of the Massachusetts affiliate, had absolutely nothing to do with my respect for free speech and everything to do with my concerns over who would draw the lines if lines were to be drawn.
Should Elon Musk decide who gets to tweet? Or should it be the government that then sits in judgment over whether Twitter or Facebook or others have adequately policed their posts? Is transparency, which Obama called for, enough to protect freedom?
The danger with anyone regulating speech other than you is that they will get it "wrong." The first lesson in a class on civil liberties is to assume that the political personage you respect the least is the one making the decisions. Now, in the civil liberties version of Immanuel Kant's original position, how much protection do you want to afford to speech?
The reason the First Amendment protects free speech against government restrictions (but not private ones) is that the founders recognized that a democracy depends on a free press and government control of the contents of coverage of itself is a step — or a leap — into dictatorship. See, for instance, Mr. Putin.
So is it better if Mark Zuckerberg or Elon Musk makes the decisions, instead of Joe Biden? The first step is surely greater transparency, but from there, both the government and the private censors need to proceed with caution.
Susan Estrich is a politician, professor, lawyer and writer. Whether on the pages of newspapers such as The New York Times, the Los Angeles Times and The Washington Post or as a television commentator on countless news programs on CNN, Fox News, NBC, ABC, CBS and NBC, she has tackled legal matters, women's concerns, national politics and social issues. Read Susan Estrich's Reports — More Here.