Book Review: "Free Speech and Turbulent Freedom: The Dangerous Allure of Censorship in the Digital Era," by Michael J. Glennon

Disclaimer: I know the author and have previously hosted him for a book event at my place of employment. I think very highly of Glennon, a fact that should be kept in mind as you read this review.

In his latest book, Tufts University law professor Michael Glennon tackles both the historical and contemporary controversies that have swirled around the First Amendment since its enactment. He begins with a look back at the evolution in the thinking of the jurist most associated with the defense of the First Amendment, Justice Oliver Wendell Holmes.

Of particular note was Holmes transition from wartime censorship judicial advocate to defender of even the most controversial public utterances. As Glennon notes (p. 30):

...Holmes himself authored opinions for the [Supreme] Court in two controversial wartime cases that found defendants guilty of violating the Espionage Act for comments that by today's standards would be dismissed as insipid.

His account of Holmes' judicial evolution and his enduring influence on First Amendment jurisprudence is lucid and inspiring, noting that it is Holmes who gave us the concept of "the marketplace of ideas" in the landmark Abrams v. United States case in 1919, in which some Russian immigrants who had circulated leaflets opposed to Allied intervention in the Russian revolution and called for a general strike were convicted under the 1918 Sedition Act.

Glennon quotes at length from Holmes dissent in the case (p. 31):

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out...

There are times, however, when I feel Glennon attributes too much to the power of words alone. From p. 74, when he's discussing Southern censorship of abolitionists prior to the Civil War, and in more recent times, the work of the late Rep. John Lewis (D-GA) in the civil rights struggle:

On the eve of the Civil War, [Fredrick] Douglass decried the slaveholders' censorship of calls for emancipation and predicted the end of slavery if speech were left free. It was the ability of advocates such as [John] Lewis and Douglass to speak and be heard that brought about a rejection of notions of white supremacy.

The reality is that no amount of abolitionist newspaper articles or pamphleteering or oratory resulted in the peaceful end to slavery. The attacks on Southerners' defense of slavery only hardened their resolve, ultimately fueling the secessionist movement that led to the Civil War. Words and intense, even occasionally violent, public debate failed to physically free the slaves. It took organized Union violence at scale to achieve that goal.

Yet even military defeat of the white supremacist Confederacy did not eradicate long and deeply held Southern whites' beliefs that Blacks should be excluded from any role in political life. The passage of the 13th Amendment did not prevent the Jim Crow era, including Woodrow Wilson's infamous purge of virtually every Black federal employee during his tenure in office.

The enactment of the Voting Rights Act and Civil Rights Act in the 1960s did not eradicate racist practices or beliefs, but they did represent a shift on the federal government's part from denouncing white supremacist racist violence to actually investigating and prosecuting it.

The 1968 presidential campaign of Alabama Governor George Wallace, who remains the only third party/independent candidate to ever get a significant number of electoral votes, represented the political high-water mark of the "segregation forever" movement. Yet racist attitudes and even overtly racist or otherwise bigoted governmental policies--such the odious Trump administration-initiated "Muslim Ban" or its "China Initiative"--forcefully demonstrate such pernicious beliefs can be made manifest through materially harmful policies, even today.

Glennon's view that government censorship is never the answer to speech we find odious or otherwise despicable is a classically liberal idea that has been reaffirmed on multiple occasions by federal courts, including the Supreme Court, as he notes. It's a belief that I share.

But he discusses none of the cases I've highlighted above in which open, vigorous public debate enabled by the Constitution's First Amendment guarantee failed to secure the other fundamental rights also guaranteed by the same national political compact. As we have relearned from the Trump era, racist or religiously prejudiced ideas can be turned into discriminatory governmental practices that do real harm to real people without actually involving the use of physical violence against the victims.

Glennon also argues that citizens should be free from government interference and censorship to advocate ideas that those in government may deem wrong. Thus, on p. 82

It is true that free speech, thought, and discourse may lead people to imagine a reality different from the government's. As [Supreme Court Justice Oliver Wendell] Holmes and others have realized, sometimes through no small sacrifice, people simply have fundamentally different views of reality. In the U.S. constitutional tradition, it is not for the government to determine which of those views is correct. It is a choice left to the individual, a choice that includes the right to be wrong.

But that choice to be wrong cannot also include the choice to then try to force their mistaken beliefs on others, including and especially through the use of force, by an individual or group in civil society--something Glennon covers well in his discussion of the landmark 1969 Supreme Court decision in Brandenburg v. Ohio.

Clarence Brandenburg was a leader in Ohio's Ku Klux Klan who, as Glennon notes (p. 56), "...was charged with violating a state law that prohibited advocating violence to promote political change." Brandenburg's case made it all the way to the nation's highest court, which overturned his conviction and in doing so established the principle that even exhortations to overthrow the government cannot be banned by the government "...except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg decision is arguably the most important free speech case in American history.

In contrast, Glennon takes an extremely dim view of the more contemporary emergence of international human rights law as it relates to free speech. In the second-longest chapter is his book, Glennon demonstrates with detailed examples how, contrary to its most vociferous defenders, international human rights law is "incomplete, inapposite, inconsistent, and indeterminate on freedom of speech." (p. 119)

Some of the very things Clarence Brandenburg said about Jews and Blacks, as well as his call for a white supremacist revolution, would have led to his conviction in a number of European countries under various facets of international human rights law. Glennon shows how such allegedly "universal" standards are anything but and how they are often directly at odds with our First Amendment. And it is "Big Tech's" embrace of international human rights law and the related concept of "stakeholder capitalism" that cause Glennon the greatest concern about the future of the First Amendment.

When Facebook, X, and other tech companies treat governments as stakeholders, Glennon argues (p. 135), they

...become surrogates of the government...Thinking of government as a stakeholder in decisions about what content appears on social media inevitably gives government a direct role in those decisions. It encourages social media companies to do government's bidding--to decide as the government would wish them to decide, to seek the government's views in making content decisions.

Glennon's fear: government censorship by corporate proxy.

In Chapter 12, "Symbiotic Security and Free Speech," Glennon assails what he describes (p. 136) as the "security-media complex--I call it a cartel because of the level of conscious parallelism and outright coordination--through the emergence of the nation's double government, describing its recent appearance and suppression of speech during two prominent series of events: the COVID-19 pandemic and news reports concerning Hunter Biden."

Unfortunately, it is in this chapter that Glennon's arguments become unconvincing.

Glennon focuses on the Missouri v. Biden lawsuit, in which the attorneys general of Missouri and Louisiana claimed the Biden administration (Glennon's words, pp. 160-161) "...breached the First Amendment by encouraging social media platforms to suppress viewpoints at odds with the government's messaging on COVID-19 and other subjects."

There's no question that Facebook and other social media companies did in fact take down some content flagged by Administration officials and were arguably entirely too solicitous of the wishes of federal officials. But that was a choice made by the leadership of the various social media companies, not the result of threats of IRS audits or other punitive action by the Biden administration.

As the very recent oral arguments in the case (which post-date publication of Glennon's book by many weeks) made clear, there's no actual, credible evidence of direct threats of retaliation. As POLITICO reported on March 18:

While some of the justices seemed eager to air their views about the dangers of litigation trying to police government officials interactions with the traditional media and digital platforms, the arguments also raised the possibility that the injunction the plaintiffs won could be thrown out because they failed to show that whatever actions the platforms took against them were actually “traceable” to the pressure from federal officials.

“I don’t see a single item in your briefs that would satisfy any of our normal tests,” Kagan told Aguiñaga.

We likely won't know the final outcome in this case until late June, but I've reviewed the 5th Circuit opinion that got this case rolling and found it not only entirely unpersuasive, but that it makes claims about the implications of Biden Administration-tech company conduct during the pandemic that do not remotely pass the "laugh test."

Glennon would have the reader believe that Facebook, Twitter/X, etc. had absolutely no individual agency in the matter. Nothing could be further from the truth--they could've told the Administration to go pound salt at any time. Instead, they chose to collaborate with it during the worst national public health crisis in a century.

Did the social media companies in question show bad judgment in acquiescing to the Administration's take down requests? Probably--but it was their choice, not the result of an administrative subpoena or court order, which I'm sure Administration officials knew would be flagrantly unconstitutional.

The flipside of this in the national security context is how often news outlets either decide to print or hold stories involving classified information.

The New York Times and Washington Post published the Pentagon Papers because it was clear federal officials had been lying to the public for literally a generation about the realities of the situation in Vietnam. They were misusing the classification system to lie to Americans about the progress--or more accurately, lack thereof--in the war. In other circumstances, particularly where the identity of a foreign human intelligence source is concerned, news organizations have elected not to publish that information in the belief--driven home forcefully in private by Intelligence Community officials--that doing so would get the source killed.

Glennon's distrust of federal intelligence and law enforcement elements is something I generally share, but in my view his argument here is less persuasive than in his previous work, National Security and Double Government, which explored the relative continuity in national security and intelligence policy between the Bush 43 and Obama administrations.

But in the case of the COVID-19 pandemic government-social media controversy, a single email from an FBI agent to Facebook does not a conspiracy make or systemic collusion demonstrate. Indeed, the ability of the FBI and other law enforcement organizations to simply buy data on Americans from Facebook, Google, etc., is a much larger and more dangerous threat to the First and Fourth Amendment rights of Americans than the one alleged by Glennon.

Despite the very serious argumentative flaws in the final chapter, Glennon's book is worth the read--not just for the great First Amendment history it provides, but also for some of the larger issues he raises in terms of the challenges we face in navigating speech issues in the digital age.

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