MPAA: To Save Free Speech, We Must Broadly Censor Free Speech

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Earlier this year, we wrote about a thought-provoking article by Zeynep Tufecki discussing how some people were deliberately trying to use the open “marketplace of ideas” to effectively attempt to poison the marketplace of ideas. Also mentioned in that article was an excellent Yale Journal Article called Real Talk About Fake News by Nabiha Syed, which raised similar issues, and wondered if we needed a new framework for thinking about free speech online. We later had Syed on our podcast to discuss this further. Both Tufecki and Syed were raising important, thought-provoking issues that were not at all like the usual attacks on free speech — because neither was an attack on free speech. Instead, they were attempting to protect free speech by pointing out that the way we often frame these discussions may not be the most effective way of thinking about these issues — and that might actually lead to the silencing of voices.

This has certainly spurred many more thoughtful discussions on these topics. But… it won’t surprise you that some are now looking to exploit this open discussion in their own way. The MPAA recently filed some comments with the NTIA, and what’s striking about them, is how they appear to be co-opting the language of Tufecki to attack free speech online, and push for legal changes that would lead to massive censorship. But, in doing so, they claim these changes are necessary to “protect” free speech. The MPAA’s VP Neil Fried also put out a somewhat snarky blog post about the filing, in which the MPAA insists that CDA 230 and DMCA 512 must be changed because “the status quo does not seem to be working.”

Is that so? CDA 230 became law in 1996. DMCA in 1998. Let’s take a look at how movie box office revenue has been over the years since (2018 numbers are projected based on tickets so far):

I don’t know, Neil, but it sure looks like Hollywood is doing just fine under these conditions. But, the MPAA has basically invested so much of its identity into the idea that infringement is an existential threat, that it has to keep going with it. Remember, this is the same organization that insisted the VCR was going to be “the Boston Strangler” to the movie industry — and that was said in Congressional testimony just four years before home video revenue surpassed box office revenue. So, the MPAA does not exactly have a credible track record on claiming that the threat of piracy is a real problem for the industry. But, it just can’t let things go.

So now it’s trying again with this comment to NTIA. And I find it notable that it appears to be trying to co-opt the framing that Tufecki used in order to argue for a regime that would stamp out free speech online:

Responsible businesses refusing to facilitate such activity are not squelching speech. They are not stifling speakers wishing to communicate ideas, but thwarting culprits engaged in malfeasance. In fact, curbing such illicit activity promotes free expression by creating a safer, virtual forum where individuals feel comfortable to engage and communicate. In this sense, it is leaving lawlessness and bullying unchecked that is chilling free speech.

But, of course, a large part of the problem is that the MPAA’s entire framing here is simply incorrect. It claims that platforms have no incentive to clean themselves up — which is laughable when you consider just how far various internet companies have bent over backwards to try to appease everyone complaining about the crap on their platforms.

Many of the platforms are not living up to that bargain, shielded behind the broadly interpreted limits on liability that ensure few if any consequences, and failing to apply the same innovation to address internet harms that they do to other areas of their business.

This statement has zero basis in reality. Of course all of the major internet platforms regularly moderate content, and these days are under tremendous public pressure from basically all sides, to “do something” about content deemed dangerous. In fact, the worries about over-censorship from this kind of pressure and motivation is already well documented. Hilariously, the MPAA pretends that the platforms don’t have much incentive to do anything — which ignores all of the pressure from their own users, the media, politicians and more.

Bizarrely, later in the filing, the MPAA admits that platforms are, in fact, moderating content heavily (something that it spends pages insisting isn’t happening). Yet, when it does so, the reasoning is equally perplexing:

The rebuttal is often that there is a risk that efforts to combat illicit conduct online will be overbroad, and inadvertently chill speech. But the platforms appear increasingly willing to curb things like hate speech. As odious as such speech is, it is quintessentially expressive. Efforts to combat it are fraught with challenges of under- and over-inclusiveness. Such activity is more susceptible to a chilling speech argument than attempts to curtail clearly illicit conduct, which present a brighter line.

So… let’s get this straight. The platforms have no incentive to get rid of illegal content on their platforms — even though all of them do so. And, to prove that there’s no problem with overbroad censorship, we’ll point to the fact that they do the kind of moderation we previously said they don’t… and then admit that that moderation itself is chilling speech. Incredible.

The MPAA seems so wedded to its desire to take away the DMCA safe harbor and the CDA immunity provisions that it really doesn’t care that no mainstream platform is eagerly courting “illegal” content. But, in order to undermine the open internet, and push for one in which all things must be licensed, it has to keep up the charade that platforms encourage illegal behavior and refuse to deal with it. And it’s adopting the language of those who were trying to have a more serious conversation about dealing with bad actors online. It’s the ultimate troll move.

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