I’m just starting to read this. I wanted to jump in and say that as far as I’ve seen you are the only substack writer speaking up for free speech. At length, at least. @popehat (ken white) is in a different category as he regularly writes and podcasts about it.
I appreciate your taking this stand. It’s surprising to me that free speech doesn’t seem to have too many defenders on here; maybe I shouldn’t be surprised as it never seems to. But these days it’s even more in retreat than usual.
Thank you Karl! I'm really shocked at what's been happening actually. I feel sort of embarrassed writing about this whole issue - it just feels like Civics 101 - and I kind of thought that everybody with a liberal upbringing, let alone everybody on Substack would get it. I really don't understand why turning over civil discourse to large and far-from-transparent corporations (which is what content moderation always actually means) would appeal to anyone, the left above all.
I’ll probably be referring to you, though probably only obliquely. Given that you two gentlemen are rare birds on substack, your takes on it are highly relevant to me. The plan is for my recorded discussion to be fairminded toward the various people I disagree with. I suspect in the end that no matter how reasonable I am, some people will be inclined to namecall and misrepresent what I’m saying. Anti-free speech people tend to cheat, intellectually, I think.
They have to cheat as most of their censorship is aimed at things they dislike or think are wrong, which is no argument to shut down speech. The antidote to incorrect info is more speech and they know it.
Hence the emphasis on hate or causing offense. That's all they've got.
Allusions to Nazis are an attempt to conjure up images of genocide, but most free speech advocates happily concede restrictions on calling for harm to others. Most would not consider this protected speech.
So it all boils down to them wanting to stop others reading something they don't want them to see. A hard sell.
If free speech has little to teach private parties then who is the government actor in the seminal First Amendment case NYTimes v. Sullivan?
More broadly, I found the Atlantic article a little naive. Substack doesn’t have a Nazi problem. Our society has a Nazi problem. Substack is doing great given the society it’s stuck in.
I think a careful reading reveals that the actor is the court system itself. Sullivan didn’t abridge anyone’s first amendment rights by filing a lawsuit, even if he is a public official.
Media reaction after Trump’s election followed by Covid hysteria mind-fucked a lot of people into believing censorship is a moral necessity. And an entire generation is growing up with this belief as a standard, acceptable position. I’m sad to say I think this is the road we’re going down from now on.
I went to UC Berkeley in the late 90's and it leaned left for sure, but did not feel illiberal (I was a conservative kid who was morphing into a liberal kid so I was senstaive to these matters) ... Then got busy with my career and starting a family.. And suddenly the the state of colleges today befuddle as if l was rip-van-winkle, but this narrative feels truthy to me.
I'm gonna write an essay about this soon, but I had a job where I did a lot of news aggregation between 2015 and 2018. I had to read and summarize every major news outlet on all the big stories of the day, every day. It was wild to see the media morph into what it has become and what effect it had on people. I was actually not surprised by the Covid hysteria because of this.
Please write that post Ray! I was working in a form of media at the time and was aware of a shift in sensibility but I was not as prescient as you. 2020 and especially 2021 totally blindsided me.
Well, "from now on" is a very long time frame! I hope it changes sooner than that. But, yeah, that analysis seems right to me. I remember the media going through this huge mea culpa after 2016 and basically jettisoning a whole bunch of their foundational principles in order to oppose Trump. That seems to be what's lingering and has gotten really tenacious.
That’s a good way to frame what’s happened. “Because of trump, we can’t afford free speech anymore.”
But that’s ALWAYS the way it gets framed in my experience. “Because of X, we can’t afford free speech.”
And then it’s a quick dog leg to “because you’re arguing otherwise, you’re just helping X.”
That is the argument I’m trying to call out. There’s a better and less bullshit argument for their side, and I’ll be talking about that. I’ve been rehearsing it with my Lawyer friend.
I think free speech is vital, and I liked your post very much. As you note, there are time-tested narrow constraints on free speech.
As for Substack, I have not encountered any "speech" that I could not easily accommodate.
In any case, the only true test of one's fidelity to free speech comes when you find the speech to be repugnant. I have not been subjected to that test on Substack.
However, I do not know the answer to the following question.
If on a social media platform, there's clear incitement to violence, what is the social media platform's proper responsibility? To judge that it violates the norms of constitutionally protected free speech and censor it? To report it to he government? Both? Neither?
***IANAL*** but doesn't incitement to violence border on criminal? If so report to authorities and deplatform. But at that point a platform has a clear guideline (and responsibilty) to act.
I could also see other regulated speech (such as porn) being relatively easily managed by a internet forum - again because there is an outside standard to appeal to.
That said, the beauty of Substack is that each newsletter is a kingdom unto itself, and the owners of each newsletters can censor to their hearts content. So there isn't a need to create system-wide rules that are stricter than that of our society at large.
I don't know about "responsibility." That gets into very tricky legal territory and I imagine there will be some major court case on this. Therapists and guidance counselors are responsible for reporting credible threats of physical harm? Could, for instance, Gab be held criminally responsible or liable for The Tree of Life shooting, since the key conversations happened on the platform and Gab didn't report it? If so, that would be a totally unenforceable standard for a platform but I could imagine somebody making a case along those lines.
Other than that, any citizen can report a threat to law enforcement and Substack could do the same. And, yes, I think that a platform would likely need to block posts that pass the "imminent threat" threshold once they become aware of them or else run the risk of being persecuted as an accomplice to a conspiracy.
Maybe somebody here knows the law on this better than I do?
You're most likely right. My thinking was more along the lines that *if* a "clear incitement to violence" AND is a crime AND the platform knew of its existence (otherwise how could the platform have banned that piece of content?) then it seems to me they should also report it to the authorities.
But of of course the real world is much murkier. Would be fun to have a lawyer weigh in on it.
You haven't been a target of Chandra Hardy? She's the most vile, racist White Supremacist on Substack that I've encountered. And she despises White men, labels everyone she disagrees with a right winger Republican. She's notorious for being blocked by folks who are tired of her hateful rhetoric, cyber stalking and racist attacks.
Free Speech maximalism doesn't harken to the constitution tho. Throughout the 19th century there were blasphemy and obscenity laws that were thought at the time to be constitutional. It's only in the mid 20th century that the court adopted a maximalist position. I mean I agree with it! But it's not totally historical to call it our country's founding principle or to say that restraints on speech are incompatible with liberal democracy
You’re absolutely right Naomi. I’m eliding over a lot of history. I will say this, though. I think it absolutely does “hearken back to the constitution.” The language of the first amendment could hardly be more clear. But it really was a far-ranging statement and it was almost as if the mores of the time couldn’t quite handle it. All kinds of laws showed up over the next century or so - the Alien and Sedition Act, the Espionage Act, various obscenity laws - that were all misfires and eventually stricken down. It’s like it took a century and a half for American jurisprudence to catch up with the unequivocal vision of the First Amendment.
This is an elegant, thought-provoking piece of writing. The idealism required to uphold true freedom is something most of us mere mortals are incapable of because it demands that we, at times must hold two violently opposing ideas in our head at the same time.
There are a few rare moments where we have the opportunity to see up, close the power of free speech in action. During the Pride celebration, a couple of months back, a group of zealot religious types stood in my front yard across from Piedmont Park with megaphones and signs espousing a variety of hateful things about the LGBTQ community. My heart hurt, and my blood pressure rose. I have a trans daughter.
An hour later, a group twice as big gathered on the opposite side of the street holding nothing but large handmade flowers. From a large set of speakers, they blasted a playlist of music that celebrates love and queerness.
Within 10 minutes, the holy assembly of haters disbanded. No one was hurt. No one was arrested.
Glad you're leaning into this. There is a whole side conversation that I won't get into about the limitations on academic freedom in an increasingly corporatized and liability-averse culture of higher ed. The fact that tenure was ever thought necessary perhaps speaks to how complicated free speech has been in practice.
I've scanned the comments, and I don't see this issue raised. But perhaps it has been broached in your conversation on Notes. Simply, it's the difference between drawing income from offensive sources and creating an environment in which those groups can freely express their own self-funded views. We would find it politically questionable if a candidate drew campaign funds from the KKK, and this is the ethical knot that I think Substack has to untangle if they provide a platform for white supremacists who paywall content and thus kick back a portion of their earnings to Substack. Perhaps that was always true of television networks, as well, but it seems a little more direct and personal in this case. As Timothy Burke has said quite well, Substack is probably trying to dodge a lot of expensive overhead by backing away from content moderation, not necessarily taking a principled stance on the issue: https://timothyburke.substack.com/p/and-now-a-word-about-your-sponsor. But I think it's fair for people to expect the top brass to have a principled stance and to articulate it clearly, which they've struggled to do.
I'm not sure the HBO revolution was a win for free speech. Sure, it was a win for gripping storytelling. But it's not so easy to elide the need for some kind of content moderation for minors. As a father of three, I've never felt that I needed to coddle my kids, but there are a lot of adult topics that I don't think they should have to confront involuntarily at, say, age 7 or 10. Has the profit-driven (and sometimes craft-driven) renaissance in TV been a net positive for American culture? I don't think there's an obvious answer to that, and don't hear me making a case for tepid content or for censorship, necessarily. But the "free speech is simple" argument glosses over the countless decisions that parents make, that teachers make, and that I once made as director of a first-year seminar to exercise a certain discretion about content that is a form of moderation but not necessarily a censorious one. That, to me, feels quite distinct from the debate about moderation of content on Substack, where it's not the opinion so much as revenue collected discreetly from those authors and readers that poses the real ethical conundrum.
Josh, leave it to you to find the soft points in my argument! That thing about HBO v. TV is just my theory, really, but I believe it to be true. Creatives get stifled in ways they almost can't even begin to express if there are restrictions, however well-intentioned, on what they can and can't say. What was the highlight of 70 lackluster years of network television? Seinfeld. Where did Larry David go as soon as he had half a chance? HBO. Why? Because he could curse and nobody was watching over his shoulder for "obscenity" or "indecency."
Totally take your point that there's lots of moderation that goes on all the time - among schools, among parents, etc. To me, that's just a different issue. And the standard of free speech applies more upriver to the production of speech - of which Substack is a clear example. There's absolutely no limit whatsoever on a reader unsubscribing from an objectionable newsletter or leaving the platform altogether.
As the judge here puts it, the right to earn "has deep roots in the nation's history and traditions." In general, we consider it a very extreme step to garnish wages or block assets - and I think there's a lot of labor law that would prevent a platform like Substack from doing it for someone who was a member of the service.
Right. In theory, Substack could come up with a different terms of service and then block revenue if not speech for those who engage in objectionable opinions. Again, it's a question of what would be an intelligent policy for that which could be consistently enforced - and whether the problem at hand is so extreme (which I very much doubt) as to warrant that step.
The FCC wanted to keep things under control so much that they shot the networks in their feet. If content regulation had been looser there, then perhaps they would still have their near-monopoly.
I was worried that someone who knew more about this than I did would comment.
"Self-inflicted censorship" may be a step too far on my part. But the sense I had is that the networks did very, very little to push back against the FCC regulations. I've never heard of some cause celebre where they really fought for free speech. I think the networks just felt like they had everything to gain and nothing to lose from the arrangement, and at the time when they had a near-monopoly of mass communications in the US they did absolutely nothing to generate interesting, thought-provoking, experimental, controversial content. (This is painting 50 or 60 years with a broad brush, but I suspect most Americans who've watched network TV would agree with that assessment.)
My sense is that all of us in this discussion are making a good faith effort to be accurate, because we care about the issue. Few if any on this thread, I would guess, can extemporize about it and never make a mistake.
I highly recommend ken white (popehat) and his essays and podcasts about this. He has a substack essay “in defense of free speech pedantry” that (to be blunt) it’s a big mistake not to read. And Katz people are never ever going to read it. It’s in our interest to read it and let it guide our discussion to a large degree.
At least, that’s my opinion. I hope people reading this find ken’s piece helpful. I have to take a nap, but I’ll be monitoring this thread.
The most controversial shows in the network period didn't get on their without a fight. Norman Lear fought tooth and nail to get his realistic sitcoms on the air as they were, and eventually got his wish.
Ok David! Smart points! I was a bit ahistorical in some parts of this piece and tbh got a bit carried away with rhetoric. I agree with you that the inanity of network television can largely be laid at the doorstep of the FCC and its control. I would just add that the networks didn’t do a whole lot to publicly push back on that. Closed-door battles like Lear’s are kind of a different story. Is that good enough or do you have another smart rejoinder lol?
First observation: who in their right mind thinks an article titled "Substack has a Nazi Problem" is anything but bad faith?
Second observation: timing is everything. Coming as this does after the smear attempt of Russell Brand and Musk telling advertisers to go fuck themselves - and, most importantly, before 2024 - it was only a matter of time before the powers that be tried to "do something" about Substack. It doesn't matter if there are Nazis here or not. Substack's allowance of free speech is a threat. Sadly, I think a lot of people who benefit from the free speech of Substack will be more than willing to stab it in the back and support censorship. For the cause, of course.
And third "observation:" long live the First Amendment!
Doesn’t the right of “free speech” focus solely on the individual’s right to avoid direct government interference with speech? I mean, I don’t feel like I have a right to go onto someone’s property and call them whatever I want without being evicted from the premises. We’ve had plenty of laws that restrict speech; for instance, no matter my opinion, I can’t go around saying that John down the street is a pedophile and avoid the consequences of a libel suit, no matter how much I truly believe it. A newspaper isn’t bound by law to print every letter to the editor it receives. I don’t understand why “free speech” has much to do with social media, which are inherently advertising platforms, not public debate mechanisms. Reach is expressly NOT PROMISED by these platforms. In fact, just the opposite is true—they work extra hard to algorithmically serve you content whether you want it or not because, at their heart, they charge for reach (again, they only make money via ads!). If they were ever to be considered “public squares,” then they couldn’t accept ads for placement or reach because that’s the opposite definition of a public square. These are simply media companies that have tricked users into providing free content (originally) under the guise of “exposure” and possible virality in an attempt to sell ad dollars against their attention. They don’t connect users as a core purpose; they connect advertisers with users...again, that’s how they make the money that pays for the service. The fact that journalists and public figures started using them was simply because they misassumed what this medium was about. Social media is simply a letters to the editors section without anyone to curate what gets printed.
The Constitution is a social contract. The document can only, as it were, speak for the government. It, however, lays down a principle for preferred civil discourse and it's axiomatic from that document that individuals or entities abridging somebody's freedom of religion or speech are running counter to the spirit of the Constitution.
In American tradition, the principle of free speech extends well beyond direct interactions with government, and a large number of private entities and organizations, Substack very much included, have chosen to implement free speech principles in their spheres of discourse.
There are a number of inaccuracies in your comment:
1."Free speech" does not refer only to the First Amendment. It's a principle that was codified in the First Amendment, as well as in many other settings.
2.You absolutely can say or print that "John is a pedophile" if it turns out to be true. If it's not true, then you are open to civil, although not criminal, penalties.
3.I have a hard time seeing how social media are "inherently advertising platforms" - especially Substack, which doesn't have advertising. (And Substack is the basis for the conversation here.) The social media companies are designed and marketed as public forums in which people may freely share their views. If the companies have more underhanded aims driving what they do, that's not a point in their defense.
4.You seem to be conflating the worst of social media practices with the nature of the form. There is no reason why platforms can't be like what early Facebook was or what Substack is now: provide digital tools for people to connect to each other and get as much reach as they can, while the platform takes some cut for themselves. The only downside there is that the platforms make millions rather than billions.
5.Again, there is no law on what newspapers should or shouldn't do, because that isn't the domain of the Constitution - that's part of the freedom of the press. But newspapers don't print all letters to the editor largely because of the inherent constraints of a printed material form. On the internet, where there isn't that constraint, that objection to posting content from "the community" wouldn't apply.
6.It's a stretch to call social media, Substack included, a "letter to the editor section" given that there's no "editor" and the material on it isn't "letters." I think it's simpler and clearer to just call it "writing."
You said everything so simply and astutely. I only want to add I was born in a post Soviet country and my family lived through the horrors that communism created. We immigrated to North America to be free. Never did we think our freedoms would be stifled. It is kind of disconcerting how not far from 1984 our society is becoming, but I am grateful for freedom fighters speaking out and fighting it in courts and people waking up and making changes to prevent things like censorship. Censoring one thing is a slippery slope to all of us being silenced eventually.
Thank you Nadia. Nicely put. What’s consistently so unnerving to me about the chilling of free speech from c.2017-the present is that there is no authoritarian state, no military coercion, to attribute it to, that we are doing it to ourselves. Liberal civil society is so deathly afraid of Trump that it’s become the mirror to Trumpism as opposed to actually liberal.
Yes, exactly. He is just a man making noises coming out of his mouth. Legacy media and the government learned how to feed on the fears of people and manipulate them, people now doing it to each other too.
Excellent. Absolutely true. Free speech has been pushed around pretty badly the past 5-7 years. The rash illiberalism of Trump created an equally noxious 'Woke' illiberal reaction on the fringe left. People love to say that free speech only relates to the public sphere; private social media companies aren't held to the same standard and can create their own moderation policies. True, technically. But there's no denying the creation of a censorious environment, and that's just as anti-democratic and bad for society. A big concern from my perspective also is: Who gets to decide what is 'racist' or what is 'conspiracy'? Fringe lefties are now often pro-Hamas; many of these people claim that the IDF attacked their own people on purpose to have an excuse to destroy Gaza. They're also rabidly antisemitiic. Both sides are filled with absurd claims; look no further than Trump's election denial on the one hand, and the 1619 Project on the other. Conspiracy galore on both!
What's my point? Free speech must stand for everyone and consistently--with rare and minor exceptions in cases of actual calls to violence--or what's the point? If you say certain views can't be voiced you've lost the plot.
Dems and social media companies tried to silence dissenting Covid claims in 2020. But many claims about Covid on the left turned out to be wrong, and some on the other side turned out to be right. So what does that tell you? When you've got one side claiming only *they* have the right to speak, that's cultural authoritarianism. Full stop.
You've been writing really well about this all over Substack. Totally second everything you're saying.
It is ironic also that, right now, the threat to Jews is from Palestinians, not "Nazis" in front of laptops, but it's the "Free Palestine" social justice crowd that has really glommed on to this issue.
One big difference that I've noticed migrating here from Twitter & WordPress, is there are fewer obnoxious people. The people who wish that my cancer will consume me or that my children will die in a road traffic accident or who just want to reply to everyone with something rude; those people don't seem to have come to Substack.
I find it easy to ignore people with obnoxious politics but the ones who wish me dead are harder to ignore. Let's hope those people don't find us here but, if they do, I hope Substack has a plan for dealing with them.
I think a lot of it is just the shape of the container. Substack is designed for people to write thoughtful posts, not to manufacture outrage, so that's what tends to be on here. This fringe that Katz found seems to be an unfortunate exception.
Hatchet job is right. Katz found what he was looking to find. From his posts on Notes, it was pretty obvious he came to Substack assuming he was entering a place filled with hate and bigotry and right-wing extremism and then went looking for examples that fit his narrative. The only surprising thing about this Atlantic piece is that the “traditional gatekeepers” never learn. Every couple years there are a few more hit pieces written at places like the Atlantic, NY Magazine, Columbia Journalism Review, bemoaning the “laissez faire approach” of Substack. It’s clear the thing they really care about is that Substack is a bit of a threat to their model and they hate the thought of anything they can’t control.
Sure, if you have free speech, that means some Nazis are going to speak freely. See, Skokie Illinois. For that matter, far left extremists will, too. The case for free speech isn’t that it doesn’t result in some extreme speech. It’s that the alternative (censorship) is worse.
Substack is, of course, a business and they do own the pixels we write on, Sam. None of us have a right to be here. That said, I very much like their free speech policy and it’s one of the things that drew me to Substack in the first place. Thanks for writing this defense/explainer.
Second that. "Moderation" always means control. Gatekeepers in hierarchical places always assume that that's the way it has to be. But it really doesn't - as, I feel, Substack has more than demonstrated.
I’m just starting to read this. I wanted to jump in and say that as far as I’ve seen you are the only substack writer speaking up for free speech. At length, at least. @popehat (ken white) is in a different category as he regularly writes and podcasts about it.
I appreciate your taking this stand. It’s surprising to me that free speech doesn’t seem to have too many defenders on here; maybe I shouldn’t be surprised as it never seems to. But these days it’s even more in retreat than usual.
Thank you Karl! I'm really shocked at what's been happening actually. I feel sort of embarrassed writing about this whole issue - it just feels like Civics 101 - and I kind of thought that everybody with a liberal upbringing, let alone everybody on Substack would get it. I really don't understand why turning over civil discourse to large and far-from-transparent corporations (which is what content moderation always actually means) would appeal to anyone, the left above all.
I’m with you. I’m working on a longer treatment of it; it may end up a recorded conversation with a lawyer friend, rather than an essay. TBD.
Very cool!
I’ll probably be referring to you, though probably only obliquely. Given that you two gentlemen are rare birds on substack, your takes on it are highly relevant to me. The plan is for my recorded discussion to be fairminded toward the various people I disagree with. I suspect in the end that no matter how reasonable I am, some people will be inclined to namecall and misrepresent what I’m saying. Anti-free speech people tend to cheat, intellectually, I think.
They have to cheat as most of their censorship is aimed at things they dislike or think are wrong, which is no argument to shut down speech. The antidote to incorrect info is more speech and they know it.
Hence the emphasis on hate or causing offense. That's all they've got.
Allusions to Nazis are an attempt to conjure up images of genocide, but most free speech advocates happily concede restrictions on calling for harm to others. Most would not consider this protected speech.
So it all boils down to them wanting to stop others reading something they don't want them to see. A hard sell.
Yes. Scary. This is an important piece.
If free speech has little to teach private parties then who is the government actor in the seminal First Amendment case NYTimes v. Sullivan?
More broadly, I found the Atlantic article a little naive. Substack doesn’t have a Nazi problem. Our society has a Nazi problem. Substack is doing great given the society it’s stuck in.
Yes! This is a great way to look at it.
In that case, it's Sullivan. But yes, I totally agree with the broader point you're making.
I think a careful reading reveals that the actor is the court system itself. Sullivan didn’t abridge anyone’s first amendment rights by filing a lawsuit, even if he is a public official.
Sorry! Didn’t mean to be pedantic. You’ve read on this more deeply than I have.
You weren't pedantic at all, really I took a very thin excuse to keep talking about something I just happen to find very interesting
Lol!
Media reaction after Trump’s election followed by Covid hysteria mind-fucked a lot of people into believing censorship is a moral necessity. And an entire generation is growing up with this belief as a standard, acceptable position. I’m sad to say I think this is the road we’re going down from now on.
I went to UC Berkeley in the late 90's and it leaned left for sure, but did not feel illiberal (I was a conservative kid who was morphing into a liberal kid so I was senstaive to these matters) ... Then got busy with my career and starting a family.. And suddenly the the state of colleges today befuddle as if l was rip-van-winkle, but this narrative feels truthy to me.
I'm gonna write an essay about this soon, but I had a job where I did a lot of news aggregation between 2015 and 2018. I had to read and summarize every major news outlet on all the big stories of the day, every day. It was wild to see the media morph into what it has become and what effect it had on people. I was actually not surprised by the Covid hysteria because of this.
Please write that post Ray! I was working in a form of media at the time and was aware of a shift in sensibility but I was not as prescient as you. 2020 and especially 2021 totally blindsided me.
Yeah, I want to read that essay too.
Nicely put Justus. College students are the last people I would have ever expected to be calling for more authority.
Well, "from now on" is a very long time frame! I hope it changes sooner than that. But, yeah, that analysis seems right to me. I remember the media going through this huge mea culpa after 2016 and basically jettisoning a whole bunch of their foundational principles in order to oppose Trump. That seems to be what's lingering and has gotten really tenacious.
That’s a good way to frame what’s happened. “Because of trump, we can’t afford free speech anymore.”
But that’s ALWAYS the way it gets framed in my experience. “Because of X, we can’t afford free speech.”
And then it’s a quick dog leg to “because you’re arguing otherwise, you’re just helping X.”
That is the argument I’m trying to call out. There’s a better and less bullshit argument for their side, and I’ll be talking about that. I’ve been rehearsing it with my Lawyer friend.
I think free speech is vital, and I liked your post very much. As you note, there are time-tested narrow constraints on free speech.
As for Substack, I have not encountered any "speech" that I could not easily accommodate.
In any case, the only true test of one's fidelity to free speech comes when you find the speech to be repugnant. I have not been subjected to that test on Substack.
However, I do not know the answer to the following question.
If on a social media platform, there's clear incitement to violence, what is the social media platform's proper responsibility? To judge that it violates the norms of constitutionally protected free speech and censor it? To report it to he government? Both? Neither?
***IANAL*** but doesn't incitement to violence border on criminal? If so report to authorities and deplatform. But at that point a platform has a clear guideline (and responsibilty) to act.
I could also see other regulated speech (such as porn) being relatively easily managed by a internet forum - again because there is an outside standard to appeal to.
That said, the beauty of Substack is that each newsletter is a kingdom unto itself, and the owners of each newsletters can censor to their hearts content. So there isn't a need to create system-wide rules that are stricter than that of our society at large.
I don't know about "responsibility." That gets into very tricky legal territory and I imagine there will be some major court case on this. Therapists and guidance counselors are responsible for reporting credible threats of physical harm? Could, for instance, Gab be held criminally responsible or liable for The Tree of Life shooting, since the key conversations happened on the platform and Gab didn't report it? If so, that would be a totally unenforceable standard for a platform but I could imagine somebody making a case along those lines.
Other than that, any citizen can report a threat to law enforcement and Substack could do the same. And, yes, I think that a platform would likely need to block posts that pass the "imminent threat" threshold once they become aware of them or else run the risk of being persecuted as an accomplice to a conspiracy.
Maybe somebody here knows the law on this better than I do?
You're most likely right. My thinking was more along the lines that *if* a "clear incitement to violence" AND is a crime AND the platform knew of its existence (otherwise how could the platform have banned that piece of content?) then it seems to me they should also report it to the authorities.
But of of course the real world is much murkier. Would be fun to have a lawyer weigh in on it.
You haven't been a target of Chandra Hardy? She's the most vile, racist White Supremacist on Substack that I've encountered. And she despises White men, labels everyone she disagrees with a right winger Republican. She's notorious for being blocked by folks who are tired of her hateful rhetoric, cyber stalking and racist attacks.
Nope.
Ah yes. I recently had the pleasure.
Me too. She called me a “pussy-ass little bitch.”
Free Speech maximalism doesn't harken to the constitution tho. Throughout the 19th century there were blasphemy and obscenity laws that were thought at the time to be constitutional. It's only in the mid 20th century that the court adopted a maximalist position. I mean I agree with it! But it's not totally historical to call it our country's founding principle or to say that restraints on speech are incompatible with liberal democracy
You’re absolutely right Naomi. I’m eliding over a lot of history. I will say this, though. I think it absolutely does “hearken back to the constitution.” The language of the first amendment could hardly be more clear. But it really was a far-ranging statement and it was almost as if the mores of the time couldn’t quite handle it. All kinds of laws showed up over the next century or so - the Alien and Sedition Act, the Espionage Act, various obscenity laws - that were all misfires and eventually stricken down. It’s like it took a century and a half for American jurisprudence to catch up with the unequivocal vision of the First Amendment.
Cheers,
Sam
This is an elegant, thought-provoking piece of writing. The idealism required to uphold true freedom is something most of us mere mortals are incapable of because it demands that we, at times must hold two violently opposing ideas in our head at the same time.
There are a few rare moments where we have the opportunity to see up, close the power of free speech in action. During the Pride celebration, a couple of months back, a group of zealot religious types stood in my front yard across from Piedmont Park with megaphones and signs espousing a variety of hateful things about the LGBTQ community. My heart hurt, and my blood pressure rose. I have a trans daughter.
An hour later, a group twice as big gathered on the opposite side of the street holding nothing but large handmade flowers. From a large set of speakers, they blasted a playlist of music that celebrates love and queerness.
Within 10 minutes, the holy assembly of haters disbanded. No one was hurt. No one was arrested.
Glad you're leaning into this. There is a whole side conversation that I won't get into about the limitations on academic freedom in an increasingly corporatized and liability-averse culture of higher ed. The fact that tenure was ever thought necessary perhaps speaks to how complicated free speech has been in practice.
I've scanned the comments, and I don't see this issue raised. But perhaps it has been broached in your conversation on Notes. Simply, it's the difference between drawing income from offensive sources and creating an environment in which those groups can freely express their own self-funded views. We would find it politically questionable if a candidate drew campaign funds from the KKK, and this is the ethical knot that I think Substack has to untangle if they provide a platform for white supremacists who paywall content and thus kick back a portion of their earnings to Substack. Perhaps that was always true of television networks, as well, but it seems a little more direct and personal in this case. As Timothy Burke has said quite well, Substack is probably trying to dodge a lot of expensive overhead by backing away from content moderation, not necessarily taking a principled stance on the issue: https://timothyburke.substack.com/p/and-now-a-word-about-your-sponsor. But I think it's fair for people to expect the top brass to have a principled stance and to articulate it clearly, which they've struggled to do.
I'm not sure the HBO revolution was a win for free speech. Sure, it was a win for gripping storytelling. But it's not so easy to elide the need for some kind of content moderation for minors. As a father of three, I've never felt that I needed to coddle my kids, but there are a lot of adult topics that I don't think they should have to confront involuntarily at, say, age 7 or 10. Has the profit-driven (and sometimes craft-driven) renaissance in TV been a net positive for American culture? I don't think there's an obvious answer to that, and don't hear me making a case for tepid content or for censorship, necessarily. But the "free speech is simple" argument glosses over the countless decisions that parents make, that teachers make, and that I once made as director of a first-year seminar to exercise a certain discretion about content that is a form of moderation but not necessarily a censorious one. That, to me, feels quite distinct from the debate about moderation of content on Substack, where it's not the opinion so much as revenue collected discreetly from those authors and readers that poses the real ethical conundrum.
Josh, leave it to you to find the soft points in my argument! That thing about HBO v. TV is just my theory, really, but I believe it to be true. Creatives get stifled in ways they almost can't even begin to express if there are restrictions, however well-intentioned, on what they can and can't say. What was the highlight of 70 lackluster years of network television? Seinfeld. Where did Larry David go as soon as he had half a chance? HBO. Why? Because he could curse and nobody was watching over his shoulder for "obscenity" or "indecency."
Totally take your point that there's lots of moderation that goes on all the time - among schools, among parents, etc. To me, that's just a different issue. And the standard of free speech applies more upriver to the production of speech - of which Substack is a clear example. There's absolutely no limit whatsoever on a reader unsubscribing from an objectionable newsletter or leaving the platform altogether.
Yeah, the Constitution as far as I know says nothing about the right to earn, and that's kind of a gray zone in our jurisprudence. Some of the issues are discussed here: https://ogletree.com/insights-resources/blog-posts/if-there-is-a-constitutional-right-to-earn-a-living-what-happens-to-osha/
As the judge here puts it, the right to earn "has deep roots in the nation's history and traditions." In general, we consider it a very extreme step to garnish wages or block assets - and I think there's a lot of labor law that would prevent a platform like Substack from doing it for someone who was a member of the service.
Right. In theory, Substack could come up with a different terms of service and then block revenue if not speech for those who engage in objectionable opinions. Again, it's a question of what would be an intelligent policy for that which could be consistently enforced - and whether the problem at hand is so extreme (which I very much doubt) as to warrant that step.
All best,
Sam
The FCC wanted to keep things under control so much that they shot the networks in their feet. If content regulation had been looser there, then perhaps they would still have their near-monopoly.
I was worried that someone who knew more about this than I did would comment.
"Self-inflicted censorship" may be a step too far on my part. But the sense I had is that the networks did very, very little to push back against the FCC regulations. I've never heard of some cause celebre where they really fought for free speech. I think the networks just felt like they had everything to gain and nothing to lose from the arrangement, and at the time when they had a near-monopoly of mass communications in the US they did absolutely nothing to generate interesting, thought-provoking, experimental, controversial content. (This is painting 50 or 60 years with a broad brush, but I suspect most Americans who've watched network TV would agree with that assessment.)
My sense is that all of us in this discussion are making a good faith effort to be accurate, because we care about the issue. Few if any on this thread, I would guess, can extemporize about it and never make a mistake.
I highly recommend ken white (popehat) and his essays and podcasts about this. He has a substack essay “in defense of free speech pedantry” that (to be blunt) it’s a big mistake not to read. And Katz people are never ever going to read it. It’s in our interest to read it and let it guide our discussion to a large degree.
At least, that’s my opinion. I hope people reading this find ken’s piece helpful. I have to take a nap, but I’ll be monitoring this thread.
Lol. And I’m going to sleep. I think you can nap soundly without fear of missing much. Nice to exchange views! And I’ll check out Ken White.
The most controversial shows in the network period didn't get on their without a fight. Norman Lear fought tooth and nail to get his realistic sitcoms on the air as they were, and eventually got his wish.
Ok David! Smart points! I was a bit ahistorical in some parts of this piece and tbh got a bit carried away with rhetoric. I agree with you that the inanity of network television can largely be laid at the doorstep of the FCC and its control. I would just add that the networks didn’t do a whole lot to publicly push back on that. Closed-door battles like Lear’s are kind of a different story. Is that good enough or do you have another smart rejoinder lol?
First observation: who in their right mind thinks an article titled "Substack has a Nazi Problem" is anything but bad faith?
Second observation: timing is everything. Coming as this does after the smear attempt of Russell Brand and Musk telling advertisers to go fuck themselves - and, most importantly, before 2024 - it was only a matter of time before the powers that be tried to "do something" about Substack. It doesn't matter if there are Nazis here or not. Substack's allowance of free speech is a threat. Sadly, I think a lot of people who benefit from the free speech of Substack will be more than willing to stab it in the back and support censorship. For the cause, of course.
And third "observation:" long live the First Amendment!
Doesn’t the right of “free speech” focus solely on the individual’s right to avoid direct government interference with speech? I mean, I don’t feel like I have a right to go onto someone’s property and call them whatever I want without being evicted from the premises. We’ve had plenty of laws that restrict speech; for instance, no matter my opinion, I can’t go around saying that John down the street is a pedophile and avoid the consequences of a libel suit, no matter how much I truly believe it. A newspaper isn’t bound by law to print every letter to the editor it receives. I don’t understand why “free speech” has much to do with social media, which are inherently advertising platforms, not public debate mechanisms. Reach is expressly NOT PROMISED by these platforms. In fact, just the opposite is true—they work extra hard to algorithmically serve you content whether you want it or not because, at their heart, they charge for reach (again, they only make money via ads!). If they were ever to be considered “public squares,” then they couldn’t accept ads for placement or reach because that’s the opposite definition of a public square. These are simply media companies that have tricked users into providing free content (originally) under the guise of “exposure” and possible virality in an attempt to sell ad dollars against their attention. They don’t connect users as a core purpose; they connect advertisers with users...again, that’s how they make the money that pays for the service. The fact that journalists and public figures started using them was simply because they misassumed what this medium was about. Social media is simply a letters to the editors section without anyone to curate what gets printed.
Hi Scott,
The Constitution is a social contract. The document can only, as it were, speak for the government. It, however, lays down a principle for preferred civil discourse and it's axiomatic from that document that individuals or entities abridging somebody's freedom of religion or speech are running counter to the spirit of the Constitution.
In American tradition, the principle of free speech extends well beyond direct interactions with government, and a large number of private entities and organizations, Substack very much included, have chosen to implement free speech principles in their spheres of discourse.
There are a number of inaccuracies in your comment:
1."Free speech" does not refer only to the First Amendment. It's a principle that was codified in the First Amendment, as well as in many other settings.
2.You absolutely can say or print that "John is a pedophile" if it turns out to be true. If it's not true, then you are open to civil, although not criminal, penalties.
3.I have a hard time seeing how social media are "inherently advertising platforms" - especially Substack, which doesn't have advertising. (And Substack is the basis for the conversation here.) The social media companies are designed and marketed as public forums in which people may freely share their views. If the companies have more underhanded aims driving what they do, that's not a point in their defense.
4.You seem to be conflating the worst of social media practices with the nature of the form. There is no reason why platforms can't be like what early Facebook was or what Substack is now: provide digital tools for people to connect to each other and get as much reach as they can, while the platform takes some cut for themselves. The only downside there is that the platforms make millions rather than billions.
5.Again, there is no law on what newspapers should or shouldn't do, because that isn't the domain of the Constitution - that's part of the freedom of the press. But newspapers don't print all letters to the editor largely because of the inherent constraints of a printed material form. On the internet, where there isn't that constraint, that objection to posting content from "the community" wouldn't apply.
6.It's a stretch to call social media, Substack included, a "letter to the editor section" given that there's no "editor" and the material on it isn't "letters." I think it's simpler and clearer to just call it "writing."
Happy to discuss/debate any of this.
- Sam
You said everything so simply and astutely. I only want to add I was born in a post Soviet country and my family lived through the horrors that communism created. We immigrated to North America to be free. Never did we think our freedoms would be stifled. It is kind of disconcerting how not far from 1984 our society is becoming, but I am grateful for freedom fighters speaking out and fighting it in courts and people waking up and making changes to prevent things like censorship. Censoring one thing is a slippery slope to all of us being silenced eventually.
Thank you Nadia. Nicely put. What’s consistently so unnerving to me about the chilling of free speech from c.2017-the present is that there is no authoritarian state, no military coercion, to attribute it to, that we are doing it to ourselves. Liberal civil society is so deathly afraid of Trump that it’s become the mirror to Trumpism as opposed to actually liberal.
Yes, exactly. He is just a man making noises coming out of his mouth. Legacy media and the government learned how to feed on the fears of people and manipulate them, people now doing it to each other too.
Excellent. Absolutely true. Free speech has been pushed around pretty badly the past 5-7 years. The rash illiberalism of Trump created an equally noxious 'Woke' illiberal reaction on the fringe left. People love to say that free speech only relates to the public sphere; private social media companies aren't held to the same standard and can create their own moderation policies. True, technically. But there's no denying the creation of a censorious environment, and that's just as anti-democratic and bad for society. A big concern from my perspective also is: Who gets to decide what is 'racist' or what is 'conspiracy'? Fringe lefties are now often pro-Hamas; many of these people claim that the IDF attacked their own people on purpose to have an excuse to destroy Gaza. They're also rabidly antisemitiic. Both sides are filled with absurd claims; look no further than Trump's election denial on the one hand, and the 1619 Project on the other. Conspiracy galore on both!
What's my point? Free speech must stand for everyone and consistently--with rare and minor exceptions in cases of actual calls to violence--or what's the point? If you say certain views can't be voiced you've lost the plot.
Dems and social media companies tried to silence dissenting Covid claims in 2020. But many claims about Covid on the left turned out to be wrong, and some on the other side turned out to be right. So what does that tell you? When you've got one side claiming only *they* have the right to speak, that's cultural authoritarianism. Full stop.
Michael Mohr
Sincere American Writing
https://michaelmohr.substack.com/
You've been writing really well about this all over Substack. Totally second everything you're saying.
It is ironic also that, right now, the threat to Jews is from Palestinians, not "Nazis" in front of laptops, but it's the "Free Palestine" social justice crowd that has really glommed on to this issue.
One big difference that I've noticed migrating here from Twitter & WordPress, is there are fewer obnoxious people. The people who wish that my cancer will consume me or that my children will die in a road traffic accident or who just want to reply to everyone with something rude; those people don't seem to have come to Substack.
I find it easy to ignore people with obnoxious politics but the ones who wish me dead are harder to ignore. Let's hope those people don't find us here but, if they do, I hope Substack has a plan for dealing with them.
I think a lot of it is just the shape of the container. Substack is designed for people to write thoughtful posts, not to manufacture outrage, so that's what tends to be on here. This fringe that Katz found seems to be an unfortunate exception.
Hatchet job is right. Katz found what he was looking to find. From his posts on Notes, it was pretty obvious he came to Substack assuming he was entering a place filled with hate and bigotry and right-wing extremism and then went looking for examples that fit his narrative. The only surprising thing about this Atlantic piece is that the “traditional gatekeepers” never learn. Every couple years there are a few more hit pieces written at places like the Atlantic, NY Magazine, Columbia Journalism Review, bemoaning the “laissez faire approach” of Substack. It’s clear the thing they really care about is that Substack is a bit of a threat to their model and they hate the thought of anything they can’t control.
Sure, if you have free speech, that means some Nazis are going to speak freely. See, Skokie Illinois. For that matter, far left extremists will, too. The case for free speech isn’t that it doesn’t result in some extreme speech. It’s that the alternative (censorship) is worse.
Substack is, of course, a business and they do own the pixels we write on, Sam. None of us have a right to be here. That said, I very much like their free speech policy and it’s one of the things that drew me to Substack in the first place. Thanks for writing this defense/explainer.
Second that. "Moderation" always means control. Gatekeepers in hierarchical places always assume that that's the way it has to be. But it really doesn't - as, I feel, Substack has more than demonstrated.
Substack is a good ecosystem for an incredibly wide range of writers, many of whom did not get their start in trad publishing or media.
Without rules there is unconscious habit
The exception is crucial for the emergence of the conscious, as it creates the corruption of habit.
https://open.substack.com/pub/iweothers/p/without-rules-there-is-unconscious?utm_source=share&utm_medium=android&r=1eqrx1
Nice piece!
Thank you...I've just started seeing your work and I really like it!