In this episode of Australia Censored, David Inserra, a Fellow for Free Expression and Technology at the Cato Institute, talks to the IPA’s Director of Law and Policy, John Storey, about the key US Supreme Court case, Murthy v Missouri, and its potential impact on free speech across the internet.
Today, the Australian government is preparing to introduce its internet censorship laws into parliament, which will give unelected bureaucrats the power to force social media companies to censor certain content and opinion from the internet.
A similar debate has been raging in the United States after the revelation that the Biden Administration colluded with social media companies to ban certain online content and opinion, with the Supreme Court poised to hand down its judgement on whether these actions breached the United States constitution.
Below is a transcript of the show.
David Inserra:
… this sort of free speech recession that we’re seeing. It’s not unique to Australia. Like I said, we’re seeing it around the world. Canada right now is contemplating a similar sort of eSafety Commission. I wrote a blog about it. I’m like, “Look, what’s happening in Australia. Why would you do this to yourself?” And it’s like, that’s exactly the challenge is how do we convince this generation, how do we convince people today that we’re not in the Cold War anymore, but we still need this sort of comparison of why do we not want to give power to the government? Why is that a bad thing? And what are the many benefits of free expression?
John Storey:
Welcome to Australia Censored. My guest today is David Inserra from the Cato Institute in the United States. David is a fellow for free speech and technology at America’s premier libertarian think tank. The Cato Institute works to advance solutions based on the principles of individual liberty, limited government, free markets, and peace.
As we have learned recently, laws in other countries can have a huge impact on the application of censorship laws in Australia. A case in point is Australia’s eSafety Commissioner, Julie Inman Grant, who tried to ban footage of a stabbing and alleged terrorist attack from the global internet. She argued that the use of VPNs meant that Australians could still see the footage even if it was blocked for Australian users, and only a global ban would properly censor this content. However, her efforts were recently overturned in the federal court, and part of the judge’s reasoning was that the injunction would unlikely be respected in the country where so many social media companies are based: in the United States.
The issue of government-led attempts to use social media companies to censor certain content is the subject of a hugely important free speech case in the United States. The Supreme Court case of Murthy v. Missouri is expected to be decided any day now. Because of the global nature of the internet, it could well prove to be an international precedent, setting the limits of what levels of censorship governments can impose on the internet.
David, welcome to the show. Can you please tell us a bit about the case for an Australian audience?
David Inserra:
Certainly, and thank you so much for having me. So Murthy v. Missouri is a really interesting case that really hinges on the First Amendment. And just I’ll give a little background to this case, and we’ll work into the specifics. So the reason this case is so important is because this is a case where it goes after, sort of back-dooring, trying to get around our First Amendment. The First Amendment says that the United States government may not abridge the rights of Americans to express themselves freely.
And so in effect, the way that our society and our Supreme Court jurisprudence has held that, what that means is that unless there’s a direct and imminent call for violence, speech cannot be censored by the government. This is a rather high bar. This means that essentially the case where someone has a microphone, a bullhorn, is saying, “Go get that guy over there right now. Let’s go beat him up,” that can be stopped by the government because there’s a direct and imminent connection to harm. But any lesser connection to harm, someone saying, “Those people don’t deserve to live,” or something like that, and they write that in a newspaper, well, that’s not direct and imminent, and so the courts have said that that kind of speech we need to allow.
For example, you could imagine, what if the target of, “Those people don’t deserve to live,” is something like the people who did October 7th, Hamas fighters, or pick your other group; you could substitute in different people there. The point is is that people have the right to express their opinions about topics of the day in ways that some people may find offensive and off-putting, but unless it’s clearly and directly and imminently connected to violence and harm, the government doesn’t have the right in the United States to try to take that content down, to try to take that speech down.
So what we see in this case of Murthy v. Missouri is the government isn’t coming directly after the speech of Americans and the social media companies. Instead, what it’s doing is it’s trying to try to go around the First Amendment, excuse me, going around the First Amendment and saying, in secret, behind closed doors, sending direct messages to the social media companies saying things like, “Really nice if you would change your policy there, and if you don’t, we’re going to have to consider our options,” sort of these semi-veiled threats. And that’s why this case is so important, because it gets at, what is the bounds to which government can engage in conversation with these companies, and how aggressively can they pressure them to effectively change their speech, change their positions? Because that would go against the First Amendment, and it has been held to go against the First Amendment.
Historically in the past, and even in this very term, the Supreme Court has held in another similar case that the government is not allowed to do this sort of jawboning or pressuring people, pressuring companies, to change their speech based on the perspective of the speaker. So that’s sort of the underpinning of this case and why it is so important to the future of the internet and to the future of speech.
John Storey:
Yeah, I guess a request from the government, even if it’s couched as a request, has certain different connotations than, say, a member of the public saying, “Can you take down this footage,” because there is that implication that if you don’t comply, something could happen to you. And as I understand it, in the US when this engagement between the government and social media companies was taking place, there were things like congressional hearings on how social media should be regulated. Is that correct?
David Inserra:
Yeah. And so this is part of the challenge, that there’s always an ongoing conversation, even to this day there is conversation about, should there be legislation or policy changes around certain key elements of liability protection for these companies or other public policy issues that these companies care about? And so that impacts their decision-making rationale when they receive these requests. And that’s what we see in this case is that there’s a variety of types of requests and discussions with the government.
On one hand, you have what I consider the most aggressive and egregious, the cases where the government is swearing at these companies, berating them for what they’re doing, not gentle persuasion of any sort. This is, “You better do what we want,” curse, curse, curse, curse. Or in other cases, it’s things like, “If you don’t do what we want, we’re going to have to consider our options,” sort of alluding to these policy changes or potentially something else, but very much left vague, or things like my concerns are not just mine, but they’re shared at the highest levels of the government. And by highest, I mean highest, the idea being that President Biden himself cares about your answer to my questions. These are things that are pretty aggressive and that social media companies take seriously about, how should we respond to these sort of aggressive requests?
But then you also have less aggressive requests, things like, “Does this go against your policies? Can you just review this,” or “Can you give me more information about this? Maybe you could change your policy,” but it’s more of a discussion or persuasive attempt. And then there’s pieces of content, pieces of speech, where the social media companies are actually going to the government and asking for help. They’re saying, “We don’t know about…” especially around Covid, there’s the lack of expertise, “How should we handle this?” So you have a wide range of types of conversations happening, and we see that in their record, and that’s what makes this case hard.
Some types of speech I think are pretty bad for the government, the government shouldn’t be doing it, other things fall in a grey area, and other things are things we definitely want to allow. And the challenge of this case is how does the court find that balance? How do they prevent the government from abusing the First Amendment by going behind closed doors, but how do they also not stop legitimate conversations that the government might want to have with private companies or that private companies want to have with the government?
John Storey:
Yeah, and I think that’s one of the interesting things about the case is that superficially, some of the interactions between government and social media companies can be pretty friendly, pretty collegiate. But part of the problem is is the fact that it’s behind closed doors, that we don’t actually know. And that sort of cosy relationship, or even if it’s a cosy, friendly relationship, is that a healthy thing? And of course, does it then allow the government to say, “Hey, hey, hey, actually now it’s not so cosy because I really need your help on X”?
Is it true that the reason we are aware of this arrangement was because of the so-called Twitter files when Elon Musk took over what was then called Twitter, now called X, he opened up some of the email archives to independent journalists, including Andrew Lowenthal, who’s an Australian who we’ve had on this show, and that revealed this level? Is that true? Was it only through that sort of process that we’re even aware of this back channel between the government and social media companies?
David Inserra:
I’ll say that it’s not the only, but it’s certainly, I think, one of the early breaks in the dam, so to speak. It is sort of a random occurrence of happenstance in the… How this happened that Elon Musk decided to buy Twitter, it is truly sort of crazy that that is one of the reasons why we know this has happened. Now, in this case, there was also some discovery, some legal discovery was allowed to occur, but that doesn’t always happen. There’s also subpoenas done by members of the House of Representatives asking these companies for more data. But yeah, this is exactly right. We’re finding out about these behind-the-scenes conversations, we’re finding out about them randomly happenstance because Elon Musk decided to do what he did, because we happened to get discovery and because we happened to find bits and pieces of these conversations through subpoenas that were often resisted by both the government and the companies. So it is difficult to always know the full picture.
And that actually speaks to one of the big policy choices that I think we have around this issue, which is that because it might be difficult for course to draw the right line about when exactly has the government gone too far and when is it perfectly allowable speech from the government, one of the important policy outcomes from this case, regardless of what the Supreme Court decides, is that Congress and a current or future administration should embrace radical transparency around their discussions with social media companies. Now obviously the current administration has used that secrecy to their benefit, so I don’t think we’re going to see that, but I would encourage them to. But Congress should take this up as a matter of… Look, there’s no harm in just saying every single time the government communicates with these companies, they should be required to just fill out a form-
David Inserra:
… case with these companies, they should be required to just fill out a form, just like any other sort of lobbying form or many other sort of disclosure forms that governments have to fill out in the course of their duties. Say, I had this conversation. Here’s what I said to them. Here’s what I requested, here’s what I sent. Put that into a database that is searchable, that is something that’s easily could be done and easily handle to make sure that we are bringing these secret things into the sunlight. Because once the government knows that this has to be out in the open, they’re going to change their behaviour, you’re probably going to see a lot less swearing, a lot less aggressive tones, and you’ll see a lot more polite requests just sending this as an FYI. And yes, that could still, to your point, could that still potentially result in some sort of pressure? Potentially.
But at least then we know exactly what that pattern is. And if we still see a problem as a society from that kind of interaction, then we have the record laid out for us and we can then take action to say, “You know what? I do think we need to put more limits on what the government can do here because we’re seeing this pattern of conversations emerging and we have it because it’s on the record.” That’s something that just seems entirely responsible for us to do as a society that cares about free expression, is to demand what our government is doing with regards to the expression of the companies and with regards to the expression of Americans and other people that is on the platforms.
John Storey:
Yeah, I think transparency in this space is a huge issue. The Institute of Public Affairs has talked about this in relation to Australia. In particular the eSafety Commissioner who has have risen in notoriety somewhat in this space of censorship and sort of global censorship of social media. One of the issues is she’s really a lone person, not accountable to anyone. Her decisions are not overviewed by any elected officials. In the same vein, Australia is proposing to introduce, so-called misinformation and disinformation laws. And I see that same, the issue of an element of lack of transparency and a lack of accountability in the sense that if the government was doing this directly, people would say, “Hey, hey, no, no, that’s not on. This is government censorship. This is government overreach.” But because there’s a level removed, it’s seen as, “Well, no, we’re just helping.”
And in Australian context, what it will be is there’ll be a government agency, ACMA, that will, they will demand social media companies implement misinformation codes of conduct.
The codes of conduct are voluntary, but they have to be approved by ACMA. And if ACMA ultimately don’t like them, they can impose them so that sort of voluntary. And then ACMA can say, “You’re not complying with your codes of conduct, so here’s a fine” or whatever. And what we’ve already heard the government who are proposing to introduce these laws. The current Australian government say is, “This isn’t government censorship. We won’t be taking down a single item from the internet. We won’t have control of, we won’t be sitting there, delete, delete, delete. There’ll be social media companies doing it.”
But there is this, it wouldn’t be a sort of secret back channel. It’ll be enshrined in legislation, a process where a government agency is saying, “Hey, we think this might be misinformation. Are you guys complying with your back channel?” And the whole thing is it’s not transparent to the public. And if the government did it directly, there would be a voter backlash. But it’s that level removed. I’m not sure if you have a comment about?
David Inserra:
Yeah, no. I actually have followed this a little bit just because I’m interested in the legal cases in the United States and our laws around expression, but I’m equally, I equally care about what I consider the culture free expression and that expands beyond the U.S. That includes what are other nations doing and so yeah, exactly. I’ve followed the case. I believe it was actually, was it FOIA, the government minister, the communications minister in Australia was saying, “We’ll have power to direct some of these investigations.” It’s like, “Oh, it’s just a neutral regulatory agency stopping misinformation.” Not when they’re being directed by the current government, which can change from year to year, month to month. That’s not neutral. And that’s how you guarantee that only the government’s perspective is the one that’s respected. I believe actually the Australian Human Rights Commission weighted and said exactly this. “The government can never be accused of misinformation because they will always be right according to their own standards.”
We know governments get things wrong. We know governments change over time. We know people have biases and ideological preferences. So to pretend that the government can be a responsible determiner of what is true and false is, it’s naive at best. And I think actually clearly harmful at worst. So I do worry exactly about these things that are happening in Australia. And it also has a corollaries in the United States because there are other laws.
In fact, there’s another Supreme Court case on the books going on right now that’s called, also known as the NetChoice case. And these are cases where state governments have tried to say, “Hey, we do want to directly challenge the fairness of social media companies, moderation practises, or the viewpoint discrimination or whatnot.” And so these are more akin to direct attacks on free expression because there’s the government saying, “You can’t moderate that way. You have to moderate the way we think you should moderate.”
And of course they’re saying it in the sense of we want to be neutral and fair and consistent. And I get that. Of course, people want fairness and consistency and people to not be biassed, but companies have a right to moderate as they will. The First Amendment does protect bias. The New York Times is different than the Wall Street Journal, and they present different perspectives. And so that’s actually a case where if Murthy v. Missouri is the sort of backdoor secretive channel, then some of these other net choice cases and these laws in Florida than Texas are more these direct cases that are challenging the idea that, yeah, companies should be allowed to sort of speak their mind and set their own standards and moderate as they will. And so that’s sort of the other side of the spectrum. Both of these cases are before the Supreme Court this term so it’s really a wild ride for technology policy in the U.S.
John Storey:
Yeah, I really like what you said about this culture of free speech, and that’s why it’s another reason why I think these cases playing out in the U.S. Have some relevance to the debate in Australia because … Look, Australia doesn’t have a First Amendment as such, we have an implied freedom of political communication that judges, sort of apply to legislation through our constitution. It’s nowhere near as litigated as the First Amendment or as strong.
So in that sense, there is more scope for parliament to limit free speech in Australia. And we’ve now got various hate speech laws being debated. But I do feel that it would be quite significant if more or less what’s being proposed under Australia’s misinformation laws that is a sort of government saying, “You’ve got to take certain content down because it’s false or whatever.” If that was ruled to be unconstitutional in the U.S. I think it would have an impact on the debate here.
I mean, before we maybe move on to some other cases, just to finish up on Murthy v. Missouri, what’s your predictions the case could come out tomorrow and make fools of us all.
David Inserra:
It could come out tomorrow.
John Storey:
What are some of the possible outcomes? And if you care to give a prediction, what would it be?
David Inserra:
Sure. So I think based on the way it was argued, I think most people that I’ve talked to say it’s probably unlikely that Murthy will be sort of a full throated rejection of what the government did. And like I mentioned it, part of that is because the record is mixed, some of the things that they were doing were seemingly perfectly fine.
And so the question is, I would ideally like the case to be at least some sort of split the baby, recognise that there are some things that the government did here that crossed the line, and there are some things the government did that are perfectly fine, and they could probably reiterate some of their existing precedent in this area.
And as I mentioned, they could even reiterate one … actually another case, NRA v. Vullo was actually explicitly decided, I think a 9-0, like a unanimous decision that said, “In that case there was job boning, government coercing parties to change their expression to do the government’s bidding. So that’s already been decided in this term. And so I would hope that there’d be some sort of call out to that decision that recognise that maybe some of that was happening here, and to not allow it to be sort of a free for all and say, “Oh, the government did nothing wrong. The government could keep doing this all they want.” Because I think that would be harmful.
That being said, I don’t think the court will probably do that. If they want to avoid that outcome, they could also come up with some sort of technical punt on the issue. Like, “Oh, we want to send this back to that district or that. We need to hear more information on this or that.
So there’s also a possibility that it could be sort of punted for certain technical reasons, or they could decide it on some sort of minor side issue without addressing the key point. There’s a variety of ways it could come down but I do think that right now I would be surprised if they said they created like a whole new jurisprudence that said, “Oh this was wrong and here’s the new standard that we’re setting.”
But I will say it. I suspect that we might see some of that in some of the minority opinions regardless. And so it’d be interesting to see how the court is thinking about this, whether they take this sort of narrow technical approach or whether they split the baby or whether they just sort of go with something else. We will see.
John Storey:
Well we’ll see. I think part of the lesson I’ve learned from this process is that the threats to free speech, they’re different today. It’s not the government simplistically banning certain people from saying things or censoring certain information in a direct way. There’s still a bit of that going on, but it’s often government acting in other ways, and also non-government actors who can silence you.
It’s not necessarily the government that says, “You’re not allowed to say that.” It’ll be some activists that will complain to your HR department that, “Hey, your company has an employee who said the wrong thing on some politically controversial issue. Let’s get them fired.” And that’s why I think the role of the First Amendment, I think is still really interesting, but it’s to what extent it can adapt if it needs to adapt.
John Storey:
But it’s to what extent it can adapt if it needs to adapt or can adapt to what I would call cancel culture, which is a broader concept of using other levers, other influence to shut people up. That’s why you mentioned that NRA case, which I think epitomises what you might call cancel culture to a T. It’s not a case of the government saying, “You are not allowed to say this, or, “You’re not allowed to hold these beliefs,” or, “You’re not allowed to associate in this way anymore, but we’re going to try to achieve that by undermining your business.” Do you want to explain that case in a nutshell?
David Inserra:
Yeah. So in a nutshell, NRA v. Vullo is a case which has parallels to Murthy v. Missouri, in that they’re both considered what are called jawboning cases as a legal term that comes from the Bible. It’s a biblical term. That basically means that in that case, what happened was essentially there’s a state regulator in New York, financial regulator, who basically went around threatening the insurance companies about their providing insurance or financial services to the NRA, a gun rights organisation in the United States, basically say, “You shouldn’t do this because if you don’t, certain elements of your financial credibility and your financial elements of your business might come under scrutiny for either risks that you’re taking and things like that.”
So essentially, she was suggesting that there could be a punishment to these financial companies if they continue to provide services to do business with the NRA. It was very clearly the case that, like I said, the Supreme Court 9-0 or 8-0 unanimously said that you can’t do that. That’s pressuring private companies to make decisions about who they want to associate with, what kind of speech they want to engage in, pressuring them to take action because of your political beliefs, government actor. That’s not acceptable. So like I said, I’m happy that at least in this term, we have that case, which means that whatever happens in Murthy v. Missouri, we’re also going to have this case as a good indicator, saying, “No, look, you can’t go around the First Amendment with this kind of jawboning.”
But your point about the broader culture is one that is something that I spend a lot of time thinking about because it speaks to the… We’re talking about First Amendment and stuff like that, but there’s reasons why we need to care about free expression that doesn’t just boil down to just protect the First Amendment, especially if we’re thinking about an Australian context or any other country for that matter. I think that we as societies, especially societies that claim to be liberal and democratic societies, need to reenergize our commitment to the ideals of free expression.
Why do we care about free expression? Because for a very long time, I think we hit the golden age of free expression, the end of the Cold War, Francis Fukuyama’s The End of History. We’ve achieved victory over the totalitarian forces of the world. Now the age of truly liberal democracies is ushered in, and since then we’ve seen unfortunately slow but sure declines in free expression. That’s not just in autocracy. It’s not just like the Russia’s of the world; all of a sudden they got liberal and they got worse. That did happen. But it’s also the case that many Western countries, many liberal democracies, went from reaching the pinnacle of respect for free expression and now have increasingly, over time, restricted those rights of their citizens.
So this free speech recession that we’re seeing. It’s not unique to Australia. Like I said, we’re seeing it around the world. Canada right now is contemplating a similar sort of eSafety Commission. I wrote a blog about it. I’m like, “Look, what’s happening in Australia? Why would you do this to yourself?” That’s exactly the challenge is how do we convince, I think, this generation? How do we convince people today that we’re not in the Cold War anymore, but we still need this comparison of why do we not want to give power to the government? Why is that a bad thing? What are the many benefits of free expression?
We need to talk about the fact that free expression is essential for democracy. It’s essential for people to self-actualize to be their true selves. It’s essential for us to find the truth and to understand each other. The fact that it’s essential for us to solve conflicts without resorting to weapons and violence. It’s essential for us to make progress as a society. There are so many reasons why we should care about free expression that I think we drowned out today in a lot of the fears of free expression. It’s spreading misinformation, hate speech. This is what we hear.
I think it’s worth reminding us like, “Yes, there are bad parts of speech. There are bad things that happen when people are able to speak,” but the many, many benefits that we see from expression far outweigh those negatives. We strip free speech away from people at our own peril, at our society’s peril, and we said politics is downstream from culture. So as our cultural thinking on free expression, I think is harmed, eventually our laws follow suit. That’s why, like I said, it’s not enough just to defend the First Amendment in the U.S. It’s not just even enough to, I think, stop potentially bad laws in Australia, but we need to actively make the argument for why people should care about free expression.
John Storey:
David, I think you’re 100% right. There has been a decline in the respect for free speech across much of the West, including the Anglosphere. I struggle to understand exactly why. To return to that NRA v. Vullo case, my instinct in reading this, well, I’ve read a summary of the case, was outraged.
David Inserra:
Yeah.
John Storey:
The idea that there would be a public official who would target an organisation. I understand the NRA can be a bit controversial and gun rights and all that. I understand. I’m not picking sides on that issue, but the idea that a public official would take it upon themselves to try to undermine that organisation by targeting its suppliers and insurance and finances and whatever. It led me to be quite angry thinking about it. But other people would say, “Well, this is just accountability. It’s not cancel culture; it’s accountability culture. If you are going to promote evil, then expect this.” It’s just a mind shift that it’s quite alien to people who I think default to free speech is always the right way on the very fringes, yes, incitement of violence and whatnot. Yeah, there are, of course, no right is absolute in all situations.
But yeah, it’s re-fostering that culture of, look, you might disagree with someone, but it’s not okay to shut them up and not helpful. I mean, that’s what we’re seeing. Speaking of the US judicial system as an outside observer, what I’m seeing with this litigation about Donald Trump. It’s being perceived, he’s been convicted of a criminal offence. Won’t get into the case, but as an observer, it does seem that it’s a series of concoctions to get to that. It’s a very left-wing city. The judge has affiliations with the Democrat Party. It’s these novel, unusual laws that have been applied, as far as I’m aware, they’ve never been applied to anyone other than Donald Trump.
If the attempt was to shut him up, or get him off the ballot, or somehow prevent him from being the next president of the United States. It had the complete opposite effect, as I understand it. He’s up in the polls. People are seeing him as a victim, seeing him as being bullied and harassed and a victim of Biden’s Justice Department. Whether that’s true or not, I’m just scratching the surface, and I see that with censorship. The eSafety commissioner has in Australia… returning to Australia, has issued various takedown notices. There’s the stabbing attack, which was the most prominent, but there are also things that have been said by various, and to do with transgender issues, that have actually drawn attention to that issue, made it more public.
I mean, the stabbing attack in Australia was terrible, but the victim didn’t die. It was not excessively gratuitous. Most people outside of Australia probably would never have seen it or particularly cared as terrible as it was, just that the news cycle moves on and there’s a lot of terrible things going on at the moment, whereas it became international news. I’m sure millions and millions of people ended up watching that footage because the government tried to silence it. I mean that is one aspect of why you don’t try to censor is it can have the complete opposite effect to what you’re trying to achieve.
David Inserra:
So what you’re getting at is when there’s this perception; you also meant this perception of unfairness under the rule of law, whether it be judicial system, which way, so we don’t have to comment on the specifics of the case, but when you have people who perceive unfairness or here in censorship, like, “Why won’t you let me see it? Shouldn’t I have the right to see it.” Well, yeah, I’ve seen the video. I would not have otherwise seen the video because I was paying attention. I guess I called attention to this recently. I was like, “Canada, you’re thinking about doing eSafety Commission. Look at these cases that are going on right now in Australia, where exactly you have someone…” The terminology in the US like this is called the Streisand effect.
Barbara Streisand tried to stop someone who’s doing a geology weather little report about the beaches on the coast of California, whatever it is. So took pictures of a lot of different places of the beach, including the back of Barbara Streisand’s house, and she tried to get it removed like, “Don’t put that on the internet.” Of course, it was viewed by tonnes of people. Up to that point, been viewed by a couple dozen people, now has been viewed around the world by millions of people.
So this idea that exactly censorship often backfires because it either creates a Streisand effect where it draws more attention, but also because it often creates a martyr effect. We can see this quite dangerously actually in places like Weimar, Germany, where, like I said, there’s lots of reasons to account for, the rise of Hitler and whatnot. I’m not trying to say this is the only reason, but part of their prominent propaganda was things like saying posters that say, of all the millions of people in the world, only he, picture of Adolf Hitler, is forbidden to speak. They would propagandise the fact that they went to court and, of course, virulently, anti-Semitic papers, Der Stürmer and whatnot, and they’re saying that the Jews control everything.
David Inserra:
… Burma and whatnot, and they’re saying that the Jews control everything and then the court cases find them guilty or whatever, and then they just say, see, we told you. And like I said, it can be the furthest thing from the truth, it can be crazy lies, but they propagandised it so well based off of the censorship that was common in Weimar Germany. That’s an extreme example, but even this one example in Australia or the Streisand effect, censorship often has unintended consequences as a society. And so in addition to all the positive reasons we should care about free expression, we should keep in mind that even if you do censorship in the most noble of reasons, it’s also possible that it’s going to backfire in your face and harm the very things that you’re trying to accomplish, like protect your democracy or find what truth is or whatever it is. It could backfire and actually make those more extreme voices louder and give them more confidence to say that they’re being oppressed and potentially give them more of a platform than they otherwise would have.
John Storey:
Yeah, I think that’s 100% right. Just to tie a few of these threads together I’ll finish on this point and then I’ll let you go. I know it’s getting late in the US. I do think there is an understanding that sort of the blunt approach to censorship can have the opposite effect and also to tie in that thread of alternative ways to censor. I think in Australia there’s an acknowledgement that the approach that the eSafety Commissioner took to sort of blanket ban certain footage from the global internet it was ineffective because it really couldn’t be enforced, and secondly had the opposite effect.
Australia is now debating changing the eSafety Commissioner’s powers so that instead of just being able to take down content or maybe issue fines for failing to take down content, she would have the power to disrupt business. She would have business disruption powers. And so effectively she would have the power to what was seen to be unconstitutional in that NRA v. Vullo case. The power to say, okay, X… Let’s face it, she’s got a bit of a beef with Twitter/X, so that’s probably going to be the main victim as she was a former employee. That, okay, I can’t force you to take this down from your servers in the US or wherever, but I can prevent advertisers from giving you money or I can prevent the energy company providing energy to your building in Australia or whatever it is. I can disrupt your business.
I mean, again, my instinct is this is just wrong. Secondly, it might be a more roundabout way of doing it in the sense that it doesn’t quite have the publicity, it has a more chilling effect. It could be more X, can you just attend to this and we’re not going to make a big public scene. I’m not going to issue a formal notice because I know that’s going to draw attention. But if you fail to do this, I’m going to exercise these powers to destroy your business. That’s why it really is to return to that I think a core theme, that culture of free speech, there could be ways to sense a free speech that are really quite problematic and dangerous.
David Inserra:
Yeah, there’s been US judges as well as other figures who have talked about how free speech, this idea of free speech, if it’s in the hearts, if liberty lies in the hearts of man, no law or government can drive it out. But if liberty dies there, then no law or government can resurrect it. Similarly, there’s been folks who have said that if the culture is one that wants a free expression, then you’ll have it. Even if the laws forbid it, you’ll have it. But if the laws protect free expression but the culture doesn’t care about it, then you will see it eroded in the way that it’s just enforced and yet people are allowed to get away with things that they shouldn’t be allowed to get away with. The government is allowed to slowly but surely trample on it.
That is what we see in these cases. To your point, there’s also these sort of regulatory approaches. We see these sort approaches all very popular in Europe right now with things like the Digital Services Act. That just creates such an overwhelming regulatory weight on top of these companies with all these supervisors about the things that they have to do, and if they don’t do them, they’ll be punished by these companies or various parts of their business model will come under fire. And I think all these things together point to the fact that there’s acceptance around the world. There’s grown acceptance to the idea that government should be responsible for limiting misinformation, hate speech or whatever it might be, and they’ll use various regulatory methods, various indirect methods or various in some cases, especially authoritarian regimes, just straight up, we will make this illegal.
All of those percent challenges to the world that I think we want to see, which is a world where people are able to flourish by using their free expression to convince their neighbours of the best arguments around this issue or that issue, to debate controversial topics where some people find it harmful, but other people find it to be just part of their religion or their viewpoint. Content when it’s debating really big things, conflicts are happening on the world scene where we need to be able to discuss these things without just saying you can’t speak or you can’t speak, and the government of the day is responsible for determining who it can’t and can’t speak. None of these things ultimately end with human flourishing. They may be [inaudible 00:42:39] said even you can assume best intentions, they’re trying to protect people, whatever it might be, it just doesn’t actually work.
Free expression is the vehicle by which abolition in the United States. Patrick Douglass, a famous abolitionist in the United States pled to the people of Boston saying, we need free expression. It is the great moral renovator of our society. He believed in these things despite the fact that there are people holding slaves in the south of America right before the Civil War. The Civil Rights Movement in the United States believed that free expression was the way in which they would convince Americans of the injustices that they were facing.
We can’t pretend that we can make progress as a society, that we can figure out what truth is, that we can advance our democracy without free expression. And every bit that we give to the government, every time we give over some of that power, it makes it harder for us as individuals and societies to flourish and so that’s what I hope Australians continue to commit to. I know in the United States, that’s what we also similarly hope for. Whatever the form may be, whatever the laws may be, we can just hope that people of all stripes realise the importance of free expression in order to reach that better tomorrow.
John Storey:
David, it’s a little sad that we have to relearn some of these lessons, but it’s good to know that there are organisations like the Cato Institute who are out there fighting the good fight, and despite the controversies that our judicial systems in both yours and my country sometimes face, I think there is a strong inclination amongst the judiciary to protect free speech. So there are the core there needed for a re-flourishing of free speech, but it won’t happen on its own. It’ll only happen if people fight for it. Thank you so much for your time. I know I’ve learned a lot about the First Amendment and the current cases in the US. You’ve been very generous with your time. Thank you so much and hope to catch up with you another time.
David Inserra:
Indeed. Thanks so much for having me.
