Freedom of speech is an integral aspect of authentic freedom, grounded in the distinctively human capacity to adhere to truth through persuasion rather than imposition. While truth is objective and independent of the knowing subject, it can only be received by the subject freely.
We can contrast this with a thinly grounded notion of freedom as merely a pragmatic expedient to “get along” in a pluralistic society in which we assume that truth is more or less unattainable. In this thin form of liberalism, when it no longer appears the optimal empirical solution to maintain social comity or stability, freedom of speech will be easily abandoned. We have seen this dynamic play out in Western societies in the past decade, where elites now frequently insist that censorship is necessary to “protect democracy” from the populist rabble.
Principled freedom that encourages the shared discovery of truth must always exclude violence against ideas. Such force reduces individuals to mere means and undermines the possibility of honest persuasion. Instead, public authorities should only intervene to prevent persecution or the propaganda of “truncheon arguments”—that is, various forms of coercion or incitement to violence—while permitting the open expression of opposing views, however controversial.
Among the central problems with censorship is this: the prohibition on pronouncing certain things often makes them seem true even when they are not. Better to allow falsehoods to be voiced and refute them with arguments than to forcefully silence them before they can be spoken.
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As the appellate court noted in our case, given the vast reach of new digital technologies, the scope and scale of this censorship had no precedent in prior free speech cases in the United States. In the words of the district court judge, what our case uncovered was arguably the “worst violation of free speech in United States history.” Previous cases of censorship by overzealous government officials typically dealt with one-time offenses: a single article suppressed, a few paragraphs struck from a book, a journalistic story killed before it saw the light of day. But what we saw in our age of social media was entirely new, facilitated by the powerful reach of advanced digital technologies: government action censoring tens of thousands of ordinary Americans hundreds of thousands of times.
However, much of the government censorship was far more subtle and indirect. More often, it did not require a detectable person flagging a specific post or account for censure. In the United States, the First Amendment bars government from engaging in viewpoint-based censorship, while the state-action doctrine bars government from circumventing constitutional strictures by suborning private companies to accomplish forbidden ends indirectly, which also occurred. Our case revealed that in some circumstances, government pressure resulted in social media platform’s changing their algorithms and terms of service in order to automate and conceal the process of government-sponsored censorship.
In this regime, those silenced may not even realize that they are being censored, as the algorithm simply limits the reach of their posts such that it is impossible for them to spread organically or “go viral” and accrue influence. In the new context of digitally mediated censorship, subtle algorithmic manipulation can create an illusion of free speech while effectively controlling the reach and impact of communications online.
If an investigator or journalist asks X or Facebook to see its algorithm, the company will not be able to produce it, for the coding has been outsourced to thousands of programming consultants, each of whom are responsible for only one small piece of the entire puzzle. This produces opaque means of information control with no clear locus of moral agency or accountability. Censorship goes underground, where it is governed by machines, which, unlike human officials, cannot be challenged in court or held to account.
The future of censorship will involve outsourcing most of this work to artificial intelligence (AI). With large language models now capable of digesting and synthesizing enormous swathes of online speech, our ability to communicate in the digital realm will soon be controlled by invisible yet immensely powerful bots. Even if government actors are prevented from censoring online, and even if we beat back the egregious EU Digital Services Act and other authoritarian mechanisms of state-sponsored censorship, private companies with vested ideological interests, armed with the tools of advanced AI, will remain a serious hazard to free speech.
This global threat from powerful private actors may prove to be every bit as severe, and considerably more powerful, than government-sponsored censorship. (For reasons that go beyond the scope of this article, my own view is that under U.S. law these platforms should be treated as common carriers rather than editors of content, which would mean that private companies or their algorithms could not suppress constitutionally protected forms of speech.)
We are witnessing emerge in real time this pervasive and tenacious machinery of power, propaganda, and technological control. The response will require vigilance, legal precedents, and structural reforms to allow for open online discourse in our digital future.
