INTRODUCTION
ORIGINS OF THE COUNTERSPEECH DOCTRINE
Marketplace Theory
Thus, Milton's framing of the counterspeech appeal must necessarily be seen as a contrast to the broad nature of the Licensing Order (and by nature, prior restrictions), rather than the category of speech regulation itself. It is by no means certain that Milton was opposing all kinds of speech regulation and promoting counter-speech as the only solution.
Initial Articulations of Counterspeech in American Jurisprudence
U.S. courts have taken up some of these objections and concerns as the basis for why, under the modern understanding of the First Amendment, adversarial and a laissez-faire approach to unpopular speech remains preferable to government regulation. But when people realize that time has disrupted many warring beliefs, they may come to believe even more than they believe the foundations of their own behavior that the ultimate desired good can be better achieved through the free trade of ideas—that the best test of truth is the power of thought to be accepted in the competition of the market, and that truth is the only ground on which their wishes can be safely carried out. Although Justice Holmes writes a dissent, his appeal to the marketplace of ideas as necessary to validate constitutional rights has become one of the most famous in defining the philosophical justifications for the modern First Amendment.
California.41 Whitney referred to the conviction of a California woman, Charlotte Anita Whitney, for violating the California Criminal Syndicalism Act, which prohibited the promotion of certain social movements.4 2 Whitney worked to establish a branch of the Communist Labor Party in Oakland, California claimed that she advocated the violent overthrow of the government.43 According to the court. To brave, self-confident men, with confidence in the power of free and intrepid thought, used in the processes of popular government, no danger arising from speech can be considered clear and present, unless the evil attack is so imminent that it can be happen before there is an opportunity for a comprehensive discussion. With its stirring description of the value of "more speech" as the preferred remedy for unfavorable, false, and dangerous speech, this passage serves as a cornerstone of the counterspeech doctrine in American law.
Justice Brandeis's framing of the dissent has been adopted as a clarion call to civil libertarians and First Amendment advocates for decades.47 Emphasizing the need for more speech to combat disfavored speech, Brandeis emphasizes the desirability of exchanging ideas as opposed to alternative. solution, obviously government regulation or censorship.
Counterspeech Since Whitney
Judge Brandeis chooses to elevate dissent as the preferred path forward, rather than government repression that conflicts with the liberty interests that, in his view, the Founders sought to protect.4 6. 34;imminent lawless action' test. 52 Whitney is usually cited not for the majority, but for Judge Brandeis's concurrence, for his formulation of adversarial judgment as the preferred remedy for adverse rulings. Rather than allowing government actors to put their thumb on the scale to achieve certain economic, social, or regulatory goals by directly restricting speech, courts tend to favor non-governmental speech in most circumstances as a method to achieve those goals.
The Court's recent formulation of dissent as the preferred remedy for adverse speech in United States v. Alvarez concerned the Stolen Valor Act,5 7 which created a federal criminal law that prohibits individuals from falsely claiming that they Congressional Medal of Honor.5 The problem with Alvarez was the government's ability to criminalize false speech. Justice Kennedy, writing for a plurality, noted that contradiction would serve as the preferred remedy for false speech: “The remedy for false speech is speech that is true.
The response to the irrational is rational; for the uninformed, the educated; to the straight lie, the simple truth."6 While there is something attractively elegant about the simplicity of Justice Kennedy's framing—similar to Justice Brandeis's—it eliminates many of the complexities of speaking in a modern marketplace of thought.
The "Is Counterspeech Effective? " Debate
COUNTERSPEECH AND CHANGE
As discussed in Part II, supra, counterspeech remains a cornerstone of free speech doctrine, even as critics have noted shortcomings in the way counterspeech and the marketplace of ideas function in practice, as well as shortcomings in its theoretical underpinnings . This section discusses these criticisms in a broader context to highlight the growing gap between the legal appeal to counterspeech and the broader social and political discourse on whether counterspeech can ever function as effectively as judges suggest.
Changes in Judicial Conceptions of Counterspeech
Instead, counterspeech is also the best option compared to government regulation of speech. It is not that counterspeech is being used in a process to "discover" the truth, but rather that it is more effective and preferable to any kind of government action.77 If counterspeech is ever a viable option, it seems to win out. automatically government regulation or sanction. Truth is not "unknown" in this case, unlike the classical concept of contradiction.
Its existence as an alternative method to a disputed law does not necessarily mean that the law is not the least restrictive remedy. Counterspeech is not a government regulation, and it theoretically always exists.8 4 Moreover, the state does not have the. What seems to underlie the appeal of counterspeech is not the idea that it helps us find the truth, but rather that it offers an alternative to government regulation.
Thus, among those who choose to debate whether counterargument is effective or preferable, it is not always clear whether the same concept is being discussed.
Criticisms of Counterspeech over Time
COUNTERSPEECH OUTSIDE LAW
This section describes how counterspeech has been used to guide speech regulation outside of legal entities and encourages entities using counterspeech to consider some of the criticisms outlined above. Social media companies, the paradigmatic example of a non-governmental public space, are the most obvious example of how counterspeech has jumped from courts to non-governmental entities. The speech-rating regimes that major social media platforms have developed have been extensively studied by both legal and non-legal academics.11 While a comprehensive discussion of the platforms' complex content moderation regimes is beyond the scope of this article, many of the platforms have incorporated elements of US law on freedom of expression in their policies.
In discussing how platforms conceive of counterspeech, this piece seeks to explore how counterspeech is framed and operates in extrajudicial arenas (which are still heavily influenced by First Amendment doctrine). The debate points to how social media platforms, which rely in part on counterspeech to regulate content policy, should take a closer look at evolving legal doctrine. 112 See e.g. Klonick, supra note 12; SIVA VAIDYANATHAN, ANTI-SOCIAL MEDIA: HOW FACEBOOK IS DISCONNECTING US AND UNDERMINING DEMOCRACY (2018).
Counterspeech and Content Moderation Policy
Central to this approach, as noted above, is the idea that "the only cure for bad speech is more speech. Instead of extensive moderation of user-generated content or pre-screening, most major platforms such as YouTube, Twitter, Facebook, and Instagram have adopted a model , which generally allows users to post content without prior review. For further discussion of the origins and history of section 230, see JEFF KOSSEFF, THE TWENTY-SIX WORDS THAT CREATED THE INTERNET (2019). 122 Part of the content moderation puzzle is the juxtaposition between what platforms say they do in terms of speech and what they actually do.
128 This brief summary necessarily eliminates many other differences between government restrictions on speech and private entities' restrictions on speech, particularly concerns regarding the state's power to limit dissent. Using counterspeech as a guideline for content moderation is justified by reference to the framework established by First Amendment doctrine, but it is not clear why counterspeech is preferable to other forms of speech regulation (especially given the differences between governmental and corporate power). 129 Commissioner Ellen Weintraub of the Federal Election Commission has observed that platforms that rely on microtargeting can create an environment that is impervious to dissent, given that not all market members may even be aware of certain ideas they are targeting. to oppose.
130 One aspect of the dominance of American companies in the digital economy is the lack of alternative conceptions of speech (such as the completely different European framework) in the development of content moderation strategies.
Changing Platform Counterspeech
CONCLUSION
Courts need to better articulate what counterspeech is, why it matters, and what it is designed to accomplish. A lack of specificity in analyzes of counterspeech has led to an unfortunate increase in confusion regarding counterspeech. For private entities, relying on counterspeech without explanation—or as a shortcut to more expensive, more challenging or difficult choices—will only compound the confusion and frustration that abound.
138 See, e.g., Casey Newton, The Trauma Floor, VERGE (February https://www.theverge.com cognizant-facebook-content-moderator-intervista-trauma-working-conditions-arizona [https://perma .cc/ 6NJ9-AZFZ] (describing the challenges of moderating content on Facebook and the psychological implications suffered by some moderators); Anna Wiener, Trump, Twitter, Facebook and the Future of Online Speech, NEW YORKER (July 6, 2020) (discussing recent political criticism of Internet platforms and the case for amending Section 230 to more effectively regulate speech). what speech is expressed online. It cannot be the only solution we talk about when faced with with the “speech we hate.” Only by being transparent about what we hope for from counterspeech—its strengths, limitations, and goals—can we actually aim to improve the state of public discourse and the lives of our fellow citizens.
For detailed discussion of the common issues of Section 230 reform, see, for example, Daphne Keller, Six Constitutional Hurdles for Platform Speech Regulation, STAN.
