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‘Harm Principle 2.0’: An update required for online free speech today

It is the classic convoluted story. A President posts a tweet and a CEO deletes it. A battle for free speech begins and the armies on both sides of the divide point fingers. The President’s tweet was declared dangerous: it contained a threat capable of inciting harm or violence. The President deletes Twitter (or tries to). The President (his spokesperson) declares that Twitter’s actions are violating free speech. The President is accused of violating free speech by deleting Twitter. Who is right? Who is wrong?

Free speech is the grey area somewhere between freedom and responsibility. One of the pillars of democratic civil society. Nothing else is more important in a democracy after the establishment of the rule of law. There are obvious limits to free speech, you cannot shout ‘fire!’ on board a plane or during a crowded session of parliament. Free speech cannot cover that kind of recklessness. So how do we draw the limits of free speech?

Can a Government legislate into law what is free speech and what is not? I do not think a Government should have such power and neither should a social media platform. What Governments and social media platforms can do is follow universal principles regarding free speech and its limits. One universal principle is the ‘harm principle’ proposed by the British thinker John Stuart Mill in his 1859 essay titled ‘On Liberty.’

Can a Government legislate into law what is free speech and what is not? I do not think a Government should have such power and neither should a social media platform

Mill proposed that no Government or person should interfere and prevent another person’s liberty to do or say anything. According to Mill, the only reason that permits interference with another person’s liberty is to prevent harm to others. This is the harm principle. The difficult question now is this: is inciting speech harmful? A strictly libertarian answer would be that until harm is directly attempted it is not. Strictly speaking, the person who acts upon hearing inciting speech is the guilty one because she has the freedom to act after hearing the inciting speech or ignore it. This may be difficult to accept. Consider the example of a violent movie: if a man commits violence and replicates the kind of murder he watched in movie, is the producer of the movie or the actor or screenwriter or the investors who bankrolled the movie guilty?

The ‘harm principle’ is more than 150 years old and it needs an upgrade for the social media age. One such upgrade is proposed by the Harvard University professor Cass Sunstein in his new book ‘Liars: Falsehoods and Free Speech in an Age of Deception.’ Sunstein is the most cited legal scholar in America today. He sides with John Stuart Mill and believes that free speech should be protected as much as possible for many reasons. Sunstein’s book focuses on misinformation (falsehoods). He believes that both truth and falsehood play important roles in society.

Sunstein believes that when falsehoods (part of free speech) are censored there would be a growing tendency for Government to censor any speech it does not like. Also, if falsehood is censored, then paradoxically, truth would be threatened to some extent because many people would fear being censored for saying what they believe is true. Allowing falsehood may sometimes lead to the discovery of new truths eventually. If you want to know what people really think and not what they pretend to think, you must make allowance for falsehood. According to Sunstein the best response to falsehoods is usually to correct them rather than to punish or censor them. Sometimes punishment or censorship actually fuel more falsehoods.

But there are limitations to the kind of falsehoods a society should tolerate. Sunstein presents a framework that builds on Mill’s ‘harm principle.’ He is careful to state that “…many false statements are not lies; people who make or spread them sincerely believe them to be true. Falsehoods are a broad category of which lies are a mere part. Some people say what they know to be false. Others are reckless; it should be obvious that they are spouting falsehoods, but they do not know it is what they are doing. Still other people are simply mistaken; they had reason to say what they did, but they turned out to be wrong. These differences matter.” These nuances inform his framework.

The decision to censor or punish falsehood or regulate it must distinguish between three types of peddlers of falsehood or ‘state of mind’ of the speakers: the liar, the reckless and the mistaken. In terms of harm: the magnitude of harm, the likelihood of harm and the timing of harm are all important considerations. How much damage can the particular falsehood cause (grave or moderate or minor or non-existent)? How likely is it that the falsehood will actually cause harm (for certain or probable or improbable or highly probable)? Is the harm from the falsehood immediate, imminent but immediate or likely to happen in the distant future?

So, back to the President and the CEO: neither of them can be the arbiter of truth or the legislator for free speech. Like the late Fela Kuti sang “You can’t dash me human rights!” Freedom of speech is a human right but comes with responsibilities.

Uyiosa Omoregie is the Founder of Avram Turing an online content information quality analyst firm. uyiosa.omoregie@avramturing.com, @UyiosaOM (Twitter)

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