Public Speech is Opt-In

July 25, 2014 Politics / Religion, Pop Culture Comments (0) 790

In the years before the Internet, engaging in public debate and discussion required time and effort. One might print books or pamphlets, post flyers, speak into a bullhorn, or speak at some public forum. Each of these decisions, barring specific measures to preserve anonymity, carried certain risks of consequence–including, in many cases, prosecution, imprisonment, or execution. “We must all hang together,” Ben Franklin famously quipped at the signing of the Declaration of Independence, “or assuredly we shall all hang separately.”

The advent of the Internet, and particularly social networks, has made public speech exponentially faster and more accessible. To enter public debate today requires only a web browser and a few taps at a keyboard or smartphone screen. Perhaps because of the speed and ease with which we can now communicate, many who choose to enter the public dialog fail to consider the potential consequences for their actions–but those consequences remain, and they can be severe.

When Justine Sacco, a PR exec with less than 200 followers, tweeted a racist HIV joke before a flight to Africa, she probably didn’t consider that she would rise to top the Trending Topics and ultimately lose her job. Online activist Suey Park seemed unprepared for the backlash against her #CancelColbert tweet, and the originator of the #YesAllWomen hashtag was so traumatized by the abuse she received that she now chooses anonymity.

I have argued before, in the wake of the “Twitter Block Scandal,” that choosing to use social media, and Twitter in particular, is a choice to be a public figure. In a post this week on Medium, Anil Dash presents a different view, arguing that modern concepts of “public” and “private” are antiquated and unsuited for the digital age, that social network users are exploited by the media and technology industries for profit, and that legislators and policy-makers are complicit in this exploitation.

While Dash points to a few legitimate cases of exploitation–Facebook’s ever-shifting policy around privacy, the risks of unknowingly sharing EXIF data, and questions around NSA and telecom tracking–the bulk of his piece argues for a redefinition of “public” that would protect online users from what he calls “harassment and exploitation,” but I would call “the risks and consequences of entering public debate.

Dash asserts that our definition of “public” is antiquated; I would argue this his notion of “public figure” is what’s antiquated. Historically, the courts have reserved this label for celebrities and politicians, those who willingly put themselves in the public eye. In our modern conversation, however, when any single tweet may receive an unexpected signal boost and corporations and individuals both pursue “virality,” one has to recognize that any of us can choose to become a public figure.

In a somewhat condescending Gawker piece from March, Hamilton Nolan reminded readers in no uncertain terms that “Twitter is public,” and that what people choose to post there is available for public consumption and response. Dash challenges this, labeling Nolan’s argument “wrong-headed.” Making his own analogy, Dash compares discussions on Facebook and Twitter to:

“conversation happening between two people at a restaurant? Or two people speaking quietly at home, albeit near a window that happens to be open to the street”

This omits the fact that both Facebook and Twitter in fact have built in functions to support private conversation (Messenger and Direct Messages, respectively) and that both Facebook and Twitter empower users to restrict even their ‘public’ communication to the eyes of an approved-list of friends. When a person makes the choice to instead share a statement publicly, not only is it not analogous to a private conversation, it is by definition contradictory. Conversing with a friend on Twitter is like speaking over megaphones in a crowded public square, or trading notes posted on a public bulletin-board. It is an informed decision to make that conversation public.

Privacy has always been something that had to be protected, because public speech is powerful. The authors of the Federalist Papers wrote under assumed names to avoid remuneration from their peers and their government; hosts of public commenters, from journalists to radio call-in guests to online commenters, have chosen anonymity for similar reasons. In the United States, we are presumed to have privacy when we choose it, and as an ardent defender of the right to privacy I am offended by overreach–like NSA spying, cell-phone tracking by telecoms, or the loosening of laws around surveillance–that violate that right.

I am offended, however, by the idea that we should redefine privacy to include an informed choice to enter the public sphere. I’ve seen similar arguments, often from those who don’t like the response they receive to a particular statement. The term “harassment” is thrown around, often haphazardly–which is not to say it’s never the right term for the kind of ugly speech encountered online, but that it is too often used to describe dissent or disagreement. One is reminded of right-wing talking heads who, when facing blowback from a particularly offensive statement, claim abridgement of their “freedom of speech.” Aside from the fact that it limits only governmental authority, the Constitution as a cultural document is not a shield against criticism or consequence. Quite to the contrary, the concept of free and open debate protects the original speaker equally with those who choose to respond.

To be fair, much of the argument Dash articulates seems motivated by a desire to protect people. “The same public sharing that constitutes investigative journalism against a politician can be destructive and demeaning harassment against ordinary citizens,” he writes. It’s true that unwelcome media attention can be damaging, as can the kind of virulent and abuse that runs rampant online. That said, this is something commenters choose to risk when they choose to make public statements.

It’s not as though options are lacking for those who don’t wish to expose themselves, or mitigate their risk. As already stated, both Facebook and Twitter offer various grades of “privacy” for an individual’s feed, and there is always the option of signing up under a pseudonym or choosing to remain anonymous. If Dash’s argument was that social networks should be obligated to clarify the risks of joining public discourse, or to embrace privacy as a default setting, I wouldn’t object. That that isn’t what Dash suggests–instead, he proposes a redefinition of “public” that suggest the rest of the world act as if we don’t hear the person shouting into a digital megaphone.

Online communication has opened up public discourse in a way unprecedented, perhaps in human history. To keep that discourse free and open, it strikes me as essential that every person not only be given the chance to speak, but to respond to the public speech of others. Balancing that with privacy is vital, and challenging, and refreshing our definitions does strike me as practical–I just disagree with Anil Dash about what those definitions should be.

While I’m all for drawing a stark distinction between public and private, I do not believe in treating public speech as private, or in protecting anyone from the consequences of a their own informed decision to make a public statement. To go back to that original comparison, a pamphleteer in the 1700’s could never pass out literature in a public square and then claim, after an unwelcome response, that those pamphlets were meant as a private conversation between friends. Privacy is a right that should be protected, but speaking in public is a deliberate, intentional action. It’s opt-in.

If a person chooses to raise his or her voice in the public square and doesn’t like the response, that person has the right to leave the public square and be left alone. They don’t have the right to change the parameters of the public square to make it feel more habitable, or to shout through a megaphone and then act as if they were whispering to a friend.

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