The idea that democracy can be salvaged through the sanitization of the speech that sustains it is both confused and dangerous. The Canadian Commission on Democratic Expression thinks otherwise. On Wednesday this week the Commission announced a plan for the federal government to assert a measure of control over social media platforms by imposing a Duty to Act Responsibly and creating more agencies to work out what that entails.
It called for the creation of a new regulatory agency to lead the development of a Code of Conduct that would guide parties under its supervision. A new Social Media Council would work out the speech policies that platforms would follow. Measures would be taken to enable people and groups to seek redress for offending content by means of an electronic virtual tribunal.
The Commission on Democratic Expression joins a number of initiatives that seek to curtail the powers of the large platforms. Some propose changes to Anti-Trust (competition) Law, like Tim Wu, so as to break them up like we did to Standard Oil back in the 19th century. Some propose getting rid of section 230 of the Communications Decency Act,[1] which protects the large platforms from the liabilities of a publisher. Some propose declaring the platforms to be national or governmental in nature, thus applying the US Bill of Rights to them.
No one has a complete, elegant, agreed upon solution or set of responses, but more governmental control seems appropriate to many, especially Heritage Canada. The report and the work that led to it was sustained by grants from the federal Department of Heritage. Another study recently announced[2] showed that Canadians were ready for greater controls on speech online, which was likewise funded by Heritage Canada. Where there’s smoke, there’s a smoke machine.
The villains of the report are on-line “hate” and disinformation, but the deeper concern of the report is with the commercial imperatives of the on-line platforms. “Structural biases [are] baked into the business models of the companies that have come to dominate Internet traffic and revenue”[3] “Many of the harms perpetrated on social platforms are therefore not simply the result of individual bad actors but are a function of how these information systems are designed.”[4]
If the history of regulated industries is any guide, the platforms themselves would enjoy the protection that a code of conduct would provide them. The chief winners in these situations are incumbents, not dissidents. Platforms have no interest in being broken up. They draw their power from economies of scale, from the attention of the millions who post to them, and from figuring out how to keep them engaged in the platform. If the proposals of the Commission were adopted, the platforms will happily be tamed. They will become the predominant voices in the projected Social Media Council. Co-optation is the goal of the incumbent. Just as AT&T accepted price regulation in 1919, so will the large platforms accept speech regulation in the 2020s. It protects their market power.
And what about the dissidents, left, right and centre? What about those who contest the efficacy of lock-downs for COVID, or the reality of global warming, the truth of Critical Race Theory, or dissent from financial orthodoxy (think Yannis Varoufakis)? For the Commission on Democratic Expression, heresies and “hate speech” sprout where disinformation reigns and wicked ideas are propagated by ignorant people outside the boundaries established by the enlightened. After all, the duty of the enlightened is to regulate public discourse.
The control of a communications industry is made feasible, or not, as monopoly power is present. As the power of the platforms expands, it becomes easier to regulate them.
Democracy is tough, risky, and unfettered. People need to refresh themselves in the classic arguments for free speech before they heed the well-meaning advice of the Commission. Jonathan Rauch has called these types “kindly Inquisitors”.[5] Free speech involves a rough, never-ending and democratic process of sorting truth from error. It is a contest. It replaced the previous rule by a Platonic Guardian elite, where the best and the brightest determined the boundaries of thought and expression. Appalled by opposition from the unlettered, the Guardians seek to still the voices of the conspiracy nuts who think that government is seeking to take away their freedoms and livelihoods. All for the best of motives, of course. Viewed from this perspective, the Commission on Democratic Expression would be better named the Council of Platonic Guardians. Be careful: a vigorous refusal of their claims to govern us might be considered “hate speech”.
[1] https://en.wikipedia.org/wiki/Section_230#:~:text=Section%20230(c)(2)%20provides%20immunity%20from%20civil%20liabilities,is%20constitutionally%20protected%22%2C%20as%20long
[2] https://nationalpost.com/news/canadians-want-online-hate-and-racism-curbed-even-at-cost-of-freedom-of-speech-poll-finds
[3] Final Report, 2020-2021 Canadian Commission on Democratic Expression, at page 12 of the report, found at https://ppforum.ca/wp-content/uploads/2021/01/CanadianCommissionOnDemocraticExpression-PPF-JAN2021-EN.pdf
[4] Ibid, at page 18
[5] “Kindly Inquisitors” by Jonathan Rauch, 1994, available at https://www.amazon.ca/Kindly-Inquisitors-Attacks-Thought-Expanded/dp/022614593X/ref=sr_1_2?crid=1H68QLW8IGXL2&dchild=1&keywords=jonathan+rauch&qid=1611845034&sprefix=Jonathan+Rauch%2Caps%2C264&sr=8-2