Freedom of speech or promotion of lies? Who gets to decide what’s true?

When YouTube suspended Sky News due to coronavirus misinformation from its stable of after-dark commentators, the Murdoch organisation protested that this was an unprecedented incursion on freedom of speech.

Sky News digital editor Jack Houghton has even described YouTube’s actions as “a disturbing attack on the ability to think freely”.

Sky News uploaded this “uncancelled” image to the platform on Thursday night when the suspension lifted.Credit: YouTube

Others, including former prime minister Kevin Rudd, have pointed out that it’s a bit rich for the mascots of the Murdoch-owned News Corp to sustain the idea that they are being deprived of free speech, given that their employer owns around 70 per cent of Australian newspaper circulation, the top-rating website news.com.au, as well as Sky News.

But you don’t have to be a fan of Sky News to be worried about the power of the new communications behemoths – social media companies such as Facebook, Twitter, TikTok and Google, which owns YouTube.

During the storming of the US Capitol building in January this year, these companies took the momentous decision of blocking the US President, Donald Trump.

Whether you agree or disagree with their actions, we are forced to deal with the fact that they have their hands on the levers of free speech, and with it political debate and our democracy. And they are accountable to no one.

Social media companies banned US President Donald Trump when he incited protestors who stormed the Capitol building. Credit: AP

This means it’s a good time to think through what free speech means, why it matters and how its practical expression is changing.

Free speech is a complex thing. It implies the right to be heard.

In the old days, the right to be heard was very unevenly held. If you didn’t own a broadcasting licence or a printing press, your reach was seriously constrained.

You could write a letter to the editor, or ring up a talkback radio program. If your words were not published or broadcast, you might have been frustrated, but would be unlikely to protest that your freedom of speech had been constrained.

But in our own time, social media has led to publication no longer being an issue. Anyone can publish. These days, it’s all about the ability to be heard. We have no right to be heard.

Just because I don’t retweet you, or like you on Facebook or share your TikTok video, doesn’t mean your free speech has been constrained. It just means that for whatever reason, I choose not to help you to be noticed.

In the US, where the right to freedom of speech is protected by the constitution, the courts have long recognised that the freedom of speech also implies the freedom NOT to speak – for example, not to sing the national anthem, or not to recite an oath of allegiance.

So if I were forced to share your content, that would be an incursion on my freedoms.

We could smoothly move on to conclude that it is perfectly acceptable for YouTube, or any other social media channel, to set standards and kick out those who don’t meet them. But it isn’t that simple.

If a few speakers in a crowd have megaphones, they can effectively drown out all other voices. This is, arguably, what has happened in Australia due to our concentrated media ownership. If you don’t find favour with News Corp or Nine (owner of The Age and The Sydney Morning Herald) or one of our major broadcasters, your ability to be heard is constrained.

In the past decade, the megaphone has begun to slip out of the hands of the Murdochs and into the hands of social media companies. This is a hugely significant transfer of power, and we should watch it and question it and call out abuses.

So what is freedom of speech? The classic definition is that it is the right to express yourself in public without fear of persecution, government interference or legal sanction.

I believe in freedom of speech more than most, I think. In this age of supposed cancel culture, I am prepared to put up with being offended, infuriated and distressed rather than argue for the limiting of another’s freedom of speech.

But there are limits. Even extreme libertarians concede that child pornography should be banned, for example.

There has to be a balance between rights and responsibilities.

A commonly quoted example is that the right to freedom of speech should not be used to allow someone to shout “fire” in a crowded room, causing panic, when there is in fact no fire.

This idea comes from a landmark 1918 judgment of the US Supreme Court. The case did not, in fact, concern a blaze, but rather whether the government could prevent an organised effort by socialists to prevent young men being conscripted during World War I. In other words, political speech.

Judge Oliver Wendell Holmes, generally considered a fierce defender of free speech, said in his judgment “the character of every act depends upon the circumstances in which it is done”. He went on to conclude that the circumstances of the war – “a clear and present danger” that the government had a right to try to prevent, justified suppressing the anti-conscriptionist publications.

It’s easy enough to transfer that principle to the present day, and the actions of Sky News during the coronavirus pandemic.

Sky News has been suspended from YouTube for content that, variously, suggested masks were not effective in containing outbreaks, hydroxychloroquine and ivermectin are effective treatments being wilfully overlooked by health authorities and vaccinated people are as likely to die from the virus as the unvaccinated.

All this goes against scientific consensus, and in the case of the death rates is just plain wrong.

People should be able to question the scientific consensus. Just ask Galileo.

But undermining public health action in the circumstances of a pandemic is exactly the kind of “clear and present danger” talked about by Wendell Holmes. In fact, I think the case is much clearer than conscription in a war.

The Sky News commentators continue to speak and continue to be heard. Ultimately, even if they were abandoned by the Murdoch organisation they could mount soapboxes and rail at the crowds.

I’m not losing sleep about this tiny check on their ability to be heard.

Margaret Simons is an author, journalist and academic.