Stop Free Speech!
Block disinformation 🤔 with mandatory emoticons.
To be American is to believe in unfettered free-expression. Speaking truth to power. Insisting on political transparency and holding the government to account.
Although free-speech protections are limited by the Constitution to governmental encroachments, the First Amendment has become an essential gene of our patriotic American 🇺🇸 DNA 🧬. We balk when private companies (like twitter or facebook) impose their editorial values on our postings.
Unlike England, with its strong libel and censorship laws, the bar for damages 💵 in the US is high, even for disingenuous or blatantly false statements. Absent consequences American speech is “free”, and like any free commodity, easily squandered.
With the rise of the internet, deep-fake videos and disinformation campaigns have shifted the balance between truth and consequences far beyond the reach of the First Amendment. We can no longer trust the evidence of our own eyes and ears. Our freedom to speak is buried under an avalanche of distractions and lies which pour in faster than we can respond. These appeals to emotion suspend rational judgement, and what passes for free speech is merely reflexive instinct, or opinion based on deceptive premises.
As I’ve argued previously, rights become actionable freedoms only with the blessings of society. Otherwise, they exist as purely abstract ideals:
All constitutional rights face a balancing act ⚖️. A right to privacy can be pierced if used to suppress evidence of a crime. Parental rights are discounted if they withhold lifesaving medical treatment from a child. Free speech is censurable when a speaker incites a crowd towards imminent harm.
Today we must accept proportionate responsibility for our speech. While still maintaining our freedoms.
How can we balance these two disparate imperatives?
By compelling speakers to declare the intent of their speech and accept responsibility for breeching that explicit commitment.
It’s all too easy to cover up intentional lies, distortions and fraud by waving a First Amendment flag. Or to hide our true intentions behind anonymity and plausible deniability.
The time for obfuscation has ended.
Going forward, all social media postings, TV ads, newscasts, movies, newspaper, books- really, all speech, must be clearly marked by the author with emoticons to indicate the author’s intent.
The speech emoticon is a contract with the public¹, and like any contract, can be enforced by peer pressure and the law.
- An emoticon for OPINION 🤔 SATIRE 🙃 or RANTing 😤 means the author cannot fully support their position with verifiable facts, but only by argumentation. Caveat emptor.
- An emoticon for ENTERTAINMENT 📺 limits the public’s expectations to mere amusement. It may be shocking or NSFW, but unless the poster concatenates other emoticons promising freedom from violence or sexual content, limited-liability applies.
- An emoticon indicating the source material (e.g. image or video) has been slightly🎨 or greatly MODIFIED 🎨🎨🎨 from its original version is a lever the platform and the courts can pull to censure bad actors from deceiving the public.
- An emoticon for FACTs ✅ deserves greater attention and trust from the public, because a FACT ✅ emoticon can be challenged in court for libel and fraud.
Legislation is required to flesh out this proposal, enumerating the emoticon categories and legal penalties for mislabeling. Peer pressure is also a factor- many parents will insist on detailed content entertainment labels for their kids, and smart news consumers will prefer FACT ✅ over ENTERTAINMENT 📺 emoticons before reading the news. Users could limit their feed to certain levels of emoticon trustworthiness. And demand action from the platform owner if that contract is violated.
Every social media community will decide on which emoticon categories are necessary before posting -for example, “all images and videos must indicate if the original content and context have been distorted in meaning”. These emoticons also provide a useful guide for content moderation. To some extent (as determined by legislation) while platforms may share legal responsibility for the consequences of spreading false FACTs ✅ , emoticons offer them leverage against their posters for misrepresentation. Thus splitting the liability baby of Section 230 of the Communications Act of 1934.
Free-speech absolutists² will be appalled by this proposal. Users and platforms will try to game the system. But, with great power comes great responsibility, and one such responsibility is truth-in-labeling. Just like building construction codes or FDA regulations help the average person negotiate a safe path through a forest of untestable and potentially deadly claims, the benefits from a system of trust emoticons far outweighs the small imposition on free speech.
Sunshine is the best disinfectant.
Emoticons are text-based conveyors of emotions, like :) for smile, while emojis are the translation of emoticons into graphical form 🙂. I imagine some kind of XML emoticon language will be used in parallel to emojis, with the platform converting those descriptors into specialized visual icons or disclaimers.
[1] A federal judge just ruled that emoticons in financial communications (including tweets) represents a binding legal promise- e.g. a rising stock emoticon 📈 basically conveys a promise of future profits. And Toblerone was forced to remove the image of the Matterhorn ⛰️ from their chocolate bar because the majority of its ingredients are no longer produced in Switzerland. Images are promises.
And the EU is moving towards more transparent content moderation for larger platform owners. Our Supreme Court may rule this modest proposal is an untenable prior restraint on free-speech. Or they may propose a reasonable balancing test, and let it proceed.
[2] If history is any guide, we will tweak the boundaries of Free-Speech only AFTER a crisis. For example, after a presidential election was flipped in response to a deep-fake. Or after a war broke out triggered by propaganda and rumors pushed by AI adversaries (think “Remember the Maine” on steroids).
In the heat of anger, we will write bad law, and suffer the long term consequences. The question for Free Speech absolutists is- what is your alternative?
