Friday, 9/22/17

It is good to live in the United States, where we still have a sort of free speech. Germany’s free speech isn’t so robust. (All dubious spellings and phrasings are original; would that I could write any foreign language as well as Colin Cortbus writes English):

Far rather, it weaponises Germany‘s already wildly overbroad and repressive anti-insult and criminal libel laws, which have been previously highlighted on this website. Under these pre-existing, but often ineffectively or inconsistently enforced laws, truth is no absolute defence and even criticism of long-deceased historical figures can be criminalised.

Pursuant to the Network Enforcement Act, social media companies now face substantial fines of up to 50 million Euros if they fail to delete content that is “obviously illegal“ under these laws within 24 hours of recieving a complaint. The same fines apply if not-so-obviously illegal content is not deleted within one week. Moreover, social media companies are also obliged to respond to requests (possibly for data about allegedly criminal users) from state prosecutors within 48 hours – a fraction of the time it would take a good lawyer to write a letter disputing or refusing any mala fide requests.

German courts take months or years to decide whether or not certain speech counts as criminal libel or insult – and even then they often cannot agree. Social media companies cannot possibly accomplish the same in 7 days, much less 24 hours – and the Network Enforcement Law does not even attempt to define what is meant by an „obviously illegal“ posting that has to be deleted in 24 hours. As a result, social media companies will simply feel forced delete all and any disputed content, amid a flurry of malicious complaints from censorious politicians and businessmen who are keen to stifle criticism and inconvenient election campaigning. No wonder, given that experts estimate the fines and costs in case of non-compliance might set social media providers back by up to 530 million euros in total, annually.

Merkel‘s government knows all this full well. Legal experts have voiced strong criticisms of the Network Enforcement Act at parliamentary hearings.The government has been advised by its very own parliamentary research service that the law is in breach of European Union rules. Experts acting for the Organisation for Security and Cooperation in Europe, of which Germany is a member, have voiced concern that the law fails to strike an adequate balance when it comes to freedom of expression. David Kaye, the UN special rapporteur for free expression, has pointed out that the „ obligation placed upon private companies to regulate and take down content raises concern with respect to freedom of expression… A prohibition on the dissemination of information based on vague and ambiguous criteria, such as ‘insult‘ or ‘defamation‘ is incompatible with article 19 of the International Convenant on Civil and Political Rights“. Moreover, the UN special rapporteur noted that he was “also concerned at the provisions that mandate the storage and documentation of data concerning violative content and user information related to such content, especially since the judiciary can order that data be revealed. This could undermine the right [of] individuals enjoy to anonymous expression ..“.

(Colin Cortbus via Popehat) The author believes that Merkel is trying to engineer a landslide instead of a regular victory, because there’s little print opposition but quite a lot on social media.

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But while we do have free speech, we also have cheap speech (a term I’d never heard before), and cheap speech is pushing the free speech envelope by breaking the paradigm many have in mind for free speech:

[A]fter a season of dangerous talk about responding to idiotic talk by abridging First Amendment protections, Americans should consider how, if at all, to respond to “cheap speech.” That phrase was coined 22 years ago by Eugene Volokh of UCLA Law School. Writing in the Yale Law Journal (“Cheap Speech and What It Will Do”) at the dawn of the Internet, he said that new information technologies were about to “dramatically reduce the costs of distributing speech,” and that this would produce a “much more democratic and diverse” social environment. Power would drain from “intermediaries” (publishers, book and music store owners, etc.) but this might take a toll on “social and cultural cohesion.”

Technologies that radically reduce intermediaries and other barriers to entry into society’s conversation mean that ignorance, incompetence and intellectual sociopathy are no longer obstacles. One result is a miasma of distrust of all public speech. Although Volokh leans libertarian, what he foresaw — “the demassification of the mass media” — led him to conclude: “The law of speech is premised on certain (often unspoken) assumptions about the way the speech market operates. If these assumptions aren’t valid for new technologies, the law may have to evolve to reflect the changes.” He warned about what has come about: odious groups cheaply disseminating their views to thousands of the like-minded. Nevertheless, he stressed the danger of letting “government intervene when it thinks it has found ‘market failure.’ ”

… [C]heap speech is reducing the relevance of political parties and newspapers as intermediaries between candidates and voters, which empowers demagogues. Voters are directly delivered falsehoods such as the 2016 story of Pope Francis’s endorsement of Donald Trump, which Hasen says “had 960,000 Facebook engagements.” He cites a study reporting approximately three times more pro-Trump than pro-Hillary Clinton fake news stories, with the former having four times more Facebook shares than the latter.

(George Will, emphasis added) Someone commented, and I’m surprised that I don’t seem to have blogged about it, that 2016 was the first time a Presidential candidate had essentially bypassed the political parties, using social media — specifically Twitter — to talk to willing inhabitants of a Trumpian echo chamber. This is probably the most notable example to date of cheap speech, and if the Democrats can get their minds off Russia, they might just try to “do a Merkel on it.”

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“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)

There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)

Some succinct standing advice on recurring themes.