Brazil’s recent X-ban may seem at odds with Americans’ notions of the First Amendment and the internet as a “marketplace of ideas” where the good ultimately overshadows the bad and the ugly.
But experts at Northeastern University say the vision of the internet as a liberal, borderless, free-speech sphere where only the best ideas rise to the top is increasingly being questioned, even in the United States.
“We’re seeing more and more of an evolution, where courts are rethinking the libertarian free speech paradigm, which is to say, a very expansive understanding of free speech online,” says Elettra Vietti, an assistant professor of law and computer science at Northeastern University. “We’ve gone from a very libertarian, very hands-off approach to an increased appetite for regulation in the digital economy.”
Claudia Haupt, a professor of law and political science at Northeastern University, agreed.
“I think after January 6th there were some voices in the US saying maybe they should regulate speech on their platforms more heavily,” said Haupt, who studies comparative online speech regulation.
She also noted the proliferation of disinformation and misinformation online during the COVID-19 outbreak.
“There’s so much misinformation about science that the truth often never comes out,” Haupt said.
US-based X, formerly known as Twitter, was suspended in Brazil starting early Saturday after failing to appoint new legal representatives in the country within a court-set deadline.
On Monday, Brazil’s Supreme Court ruled unanimously in favor of the ban.
It was the latest escalation in a dispute between X’s owner Elon Musk and Brazilian Supreme Court Judge Alexandre de Moraes. In April, the judge ordered the suspension of dozens of accounts for allegedly spreading false information. Musk ignored the order, Moraes threatened to arrest him, and Musk responded by closing X’s Brazilian office.
The debate, at least publicly, revolves around the issue of free speech.
“Freedom of speech is the foundation of democracy, and Brazil’s unelected pseudo-judges are destroying it for political purposes,” Musk said on Friday.
But Brazil’s Supreme Court judge, Flavio Dino, argued that “freedom of expression is closely linked to the obligation of responsibility.”
“The former cannot exist without the latter and vice versa,” Dino added.
Vietti points out that there has always been a push and pull between governments and individuals when it comes to speech.
“We want freedom of speech, we want activists and bottom-up change to be heard through social media,” Vietti said.
She looks at the impact Twitter had at the time on events such as the Arab Spring protests, and the government’s crackdown on Twitter after the protests ended.
“But there’s always pressure from above, especially from governments, to limit it,” Vietti continues. “So how do you strike a balance?”
Increasingly, finding that balance seems to be on the minds of lawmakers, judges and others.
Both Haupt and Vietti pointed to the recently passed European Union’s Digital Services Act, which says its “primary objective is to combat illegal and harmful activities online and the spread of disinformation.”
U.S. Supreme Court Justice Samuel Alito also opened the door to regulation in his unanimous decision in NetChoice, noting that “the sky will not fall” if social media companies comply with the DSA.
Meanwhile in the US, there is bipartisan interest in regulating children’s access to social media and banning TikTok.
As for US social media companies, Haupt noted that they regularly change their community guidelines to comply with local regulations.
“All platforms have community standards, and there’s no First Amendment issue with that,” Haupt said. “The issue is the cost of doing business in multiple countries.”
For better or worse, you can choose not to comply with regulations.
Vietti also said Musk’s libertarian, hands-off approach to government is a bit disingenuous.
“Of course, a lot of his business benefits from government investment,” Vietti noted, “so the idea that the government is just going to go away and not get involved in regulating what kinds of technologies we have and what harm those technologies might cause is just absurd, and he knows that very well.”
Ultimately, it’s important to remind Americans that other countries have different standards as well as different laws regarding speech.
“Social media platforms essentially have to comply with regulatory frameworks wherever they operate,” Haupt said. “The standard for assessing whether speech is legal is local Brazilian law, not U.S. law.”
“The United States is actually an exception in how it treats speech,” Haupt continues.
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