The importance of protecting free speech: Spain and FOSTA

Back in January, Germany debuted a new hate speech law that began causing collateral damage less than a week after it came into effect, first by blocking a satirical magazine’s Twitter account and then by censoring the German justice minister who’d championed the law. This isn’t an isolated incident; any attempt at criminalizing “hate speech” (which, contrary to popular opinion, has no legal definition in the US) is guaranteed to have unintentional consequences, and nowhere is this illustrated more frequently than in Europe, whose countries have a host of anti-hate speech laws that are routinely used to silence human rights concerns and punish political dissidence – all without incurring any notable reduction in bigoted speech.

The latest example comes from Spain, which has a particularly spotty free speech record, and where laws meant to stop speech that promotes hate or “glorif[ies] terrorism” are wreaking such havoc that Amnesty International took a moment off focusing on barbaric dictatorships to speak out:

In a new report on the phenomenon, entitled “Tweet… If You Dare,” Amnesty International looks at the rise in prosecutions under Article 578 of the country’s criminal code, which prohibits “glorifying terrorism” and “humiliating the victims of terrorism.” The law has been around since 2000, but was amended in 2015 and since then prosecutions and convictions have risen sharply. […]

Among those who have been hit by the law are a musician who tweeted a joke about sending the king a cake-bomb for his birthday and was sentenced to a year in prison, and a rapper who was sentenced to three-and-a-half years in jail for writing songs that the government said glorified terrorism and insulted the crown. A filmmaker and a journalist have also been charged under the anti-terrorism law, and a student who tweeted jokes about the assassination of the Spanish prime minister in 1973 was also sentenced to a year in prison, although her sentence was suspended after a public outcry.

This is a striking example, but Spain is hardly the only place, particularly in Europe, where a government empowered to curb “bad speech” is using that power to stamp out any kinds of speech it doesn’t like. After all, that’s what people told it to do – they just likely didn’t imagine those censorial powers would be used against them. (Shades of the “leopards eating people’s faces” joke.)

The whole point of having free speech protections – the reason the First Amendment exists – is to protect people’s right to express any ideas they want without fear of government interference. The moment you give the government power to selectively silence certain forms of speech, you’ve irretrievably started down a path that will lead to that power being used against you, your ideas, your speech. It’s only a matter of time. That’s why freedom of speech must be protected against any attempt to curtail it, even if that means putting up with terrible people saying terrible things.

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But laws that try to ban mean thoughts aren’t the only threat to free speech. In the US, Congress recently passed FOSTA, an anti-sex-trafficking bill that would do nothing to actually fight sex trafficking. Along with its sibling SESTA (which so far hasn’t passed), FOSTA would basically hold websites and service providers civilly and criminally liable for anything posted by users on their platforms. (In fact, it would make it harder to help sex trafficking victims, since closing down public forums where some traffickers may hang out will force them to move to darker corners that are less easily monitored, ensuring fewer victims will be found.)

FOSTA essentially neutralizes the all-important Section 230 of the Communications Decency Act (commonly known as CDA 230), which makes it so that social media platforms, website owners and so on can’t be held responsible for whatever their users say or do. CDA 230 is possibly the biggest factor that’s allowed the free and open Web to exist; without it, website operators would be forced to moderate their comment sections and other public platforms for any speech that may get them sued, regardless of the fact that they’re not the ones posting it. It would be the greatest chilling effect the Web’s ever seen as sites and services buckle down to cover their asses.

That’s not hyperbole. And in the hours since FOSTA’s passage, it’s no longer a hypothetical, either. Websites are already reacting, and several forums where people have spent years conversing, sharing and connecting without breaking any laws are suddenly going dark. The most prominent is Craigslist, which just killed off its Personals section:

US Congress just passed HR 1865, "FOSTA", seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully.

Any tool or service can be misused. We can't take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day.

Craigslist is not alone. Reddit is joining in with a new content policy, updated just as FOSTA arrived on the scene, that’s resulted in several long-running adult sections getting banned:

So far, four subreddits related to sex have banned: Escorts, Male Escorts, Hookers, and SugarDaddy. None were what could accurately be described as advertising forums, though (to varying degrees) they may have helped connect some people who wound up in "mutually beneficial relationships." The escort forums were largely used by sex workers to communicate with one another, according to Partridge.

It’s not explicitly stated that the subreddits were taken down due to FOSTA’s passage, but the timing all but eliminates the possibility of it being a coincidence. Other adult websites are also feeling the chill.

Regardless of anyone’s personal views concerning the content of these websites and the attitudes of the people there, the fact remains that these were totally legal spaces that have been closed in an effort to shield their owners from being held liable for speech that has no business being outlawed in the first place. That should concern everyone. And if Trump signs FOSTA into law – and frankly, does anyone doubt that President Fuck-Up will do so? – it’s a matter of time before every social media website, discussion forum, personal ads site, instant messaging platform and any other Internet-connected utility that allows people to communicate and upload material starts putting some serious clamps on what’s allowed. Whatever websites won’t police users much more harshly may just shut down altogether.

Anyone who hasn’t yet heard of FOSTA or SESTA or of the importance of Section 230 of the CDA is about to. Remember how websites panicked at the near-passage of SOPA in 2012? We’re in for some déjà vu.

(via Techdirt: 1, 2)