09/30/2014 07:01 pm ET Updated Nov 30, 2014

How Free Should Speech Be?

Recently, I was invited to speak at Utah Valley University's Center for Constitutional Studies Constitution Day conference. It was a great experience to reach across traditional scholarly boundaries to discover new ways of looking at old problems. A modified version of the speech is below.

Because I study media and their effects, I often look at current events through a theoretical lens. I could (and often do) ponder everything from what it means to be a citizen in our digital era to how media cover mass shootings.

Of course I'm not the only person to spend endless hours contemplating media effects and their role in society. In 1944, the Hutchins Commission -- a group of esteemed faculty from the University of Chicago, Harvard, and the New School -- began deliberating on the proper functions of media in a modern democracy. A mere four years later, they released their report, which suggested that the media play an important role in the development and stability of modern society. The Commission argued that the press could be "inflammatory, sensational, and irresponsible" and when the press engage in these practices, "it and its freedom will go down in the universal catastrophe." Yet they also held out hope for the press, claiming it can "do its duty by the new world that is struggling to be born... by promoting comprehension and appreciation of the goals of a free society." The Commission concluded that the press should be free, but also accountable. Among the five "requirements" the commission proposed were that the media should present and clarify the goals and values of the society, and serve as a forum for comment and criticism. When I talk to my theory students about this "social responsibility theory," they understand its basic goals. But in practice, these propositions are simply too abstract and difficult to enforce. The press, needless to say, didn't respond kindly, and the Commission's report remains largely that -- an unrealized theory on paper.

So why am I spending so much precious Internet space on a nearly 70-year-old report that didn't seem to effect much change? Because it's worth reconsidering such normative questions in the face of disputes over freedom of expression and censorship, whether they regard Hollywood photo scandals or threats toward national security. Americans know that freedom of expression, as outlined in the First Amendment, is a central tenet of American democracy. In fact, studies show that more than 90 percent of the U.S. public endorses the importance of protecting freedom of speech and of the press. (Of course, they are decidedly less so when it comes to complicated speech like pornography and hate speech).

But importantly, this concern about freedom of expression and its effects dates back far earlier than the Hutchins Commission. It predates television, radio, even silent films. This goes back to Gutenberg, who famously invented the printing press in the 1400s. Let's travel back to a time a bit more recent -- 1644 to be exact -- when printing became a predominant method for communicating about religion.

At this time, printing was controlled by licensing, registration, and censorship. When John Milton published an unlicensed pamphlet defending divorce (quite controversial at the time), he defended himself to Parliament, after which he published his defense as the "Aeropagitica." This, of course, was also unlicensed. In it, he said, "Give me the liberty to know, to utter, and to argue freely according to conscience above all liberties." Milton argued that open communication, with no regulations, can create a forum where truth and an ideal social order can emerge. Of course, Milton was not promoting unrestrained free expression; his liberty was reserved only for some Protestants sects (Catholics, Jews, and Muslims need not apply).

But now we have the new kid on the block -- the Internet -- which has reignited the conflict between our ideals of free expression and regulation of mass media. Two recent examples have illustrated how free expression is both facilitated and hampered by new technologies. Perhaps the most recent, and starkest, challenge to free expression is the Islamic State, or ISIS, and its use of social media to spread information. On August 19, 2014, the group released a video depicting the beheading of American journalist James Foley. Shortly thereafter, a similar video appeared showing American journalist Steven Sotloff, also brutally beheaded. More recently, we saw the eerily similar beheading of a British aid worker. Is this free expression? Should such videos be censored? Some argue that -- as revolting as it is -- this content should not be censored because it is protected under the First Amendment. Yes, the videos are gruesome and could incite terrorist copycat acts. But on the other hand, Americans could be made aware of the sheer brutality of which this organization is capable and support change. Indeed, recent polls suggest that a stunning 94 percent of Americans have heard about these beheadings; that's higher than the 2012 health-care decision by the U.S. Supreme Court (78%) and Syria's reported use of chemical weapons in 2013 (79%). And it's true, the American public has largely backed the recent strikes in Syria and Iraq.

Others argue that such videos are clearly propaganda meant to incite violence, and that we shouldn't give into what ISIS "wants." But, of course, propaganda is not prohibited under the First Amendment or any other statute. Indeed the U.S. has actively engaged in a propaganda war with ISIS to prevent Westerners from joining the movement.

Moreover, does what ISIS want matter in whether its videos are made public or not? One interesting issue here is how traditional media -- who often self-censor as a result of the norms of prior constraint established in the 17th century -- have handled it; many outlets have refused to broadcast the video, even as they remark it is widely available online. But the organizations publishing this content are not traditional media. They are private corporations, which of course are not accountable in the same way that government-regulated communication or media are. Twitter, Reddit, and others have the right to display some content and to exclude others. When it comes to such gruesome and horrifying content as the beheadings videos, some organizations have chosen to remove offensive accounts, even as others pop up to repost them.

A second recent example is the celebrity nude photo scandal, in which private photos of many Hollywood actresses were posted to various web sites. This comes after a slew of cases involving what some people refer to as "revenge porn," which has devoted followers and sites designate for making private photographs public material online. Such situations have led 11 states to enact new laws aimed at better tackling revenge porn.

At Reddit, where the celebrity photos garnered the most views in the company's history, CEO Yishan Wong openly struggled with the decision to keep the photos on the site. Wong published a blog post attempting to clarify the company's publishing philosophy: "We understand the harm that misusing our site does to the victims of this theft, and we deeply sympathize," Wong wrote. "Having said that, we are unlikely to make changes to our existing site content policies in response to this specific event." The blog was inexplicably titled, "Every man is responsible for his own soul."

Reddit's policy allows users to post almost anything, as long as it abides by U.S. law. Since linking to stolen material isn't a crime, Reddit said they didn't feel obligated to remove the content. Yet about a week after Wong's blog post, Reddit removed the subreddit "The Fappening," which was where most of the photos were being viewed. Why? Not because of concerns about free expression, indecency, or theft. It was because some photos were of minors, which does violate U.S. law. But what if there hadn't been minors? What responsibilities do companies like Twitter and Reddit have in publishing questionable content?

John Milton surely couldn't have imagined our media landscape today. Even the Hutchins Commission, which labeled 1940s mass communication as the "most powerful single influence on society," would likely have difficulty applying its requirements to today's media. So what would they recommend? Is it possible to balance the freedom to publish such content with accountability? How might we begin to encourage and/or enforce social responsibility in an online world? And perhaps more importantly, should such an approach be taken with a medium where, some argue, information wants to be free? As is often the case when I ponder such issues, I've come up with more questions than answers. But these kinds of events require us to discuss the tensions between freedom of expression and regulation; social responsibility and accountability; and private and public communication.