June 27, 2011, was a red-letter day for a generation of video game fans. After years of argument, the US Supreme Court struck down a California law banning the sale of “mature”-rated games to minors — declaring that one of the youngest art forms of the new millennium deserves the full protection of the First Amendment. The decision, made just over a decade ago, felt like one step in a steady march toward unprecedented opportunities for artists.
In the 1990s and early 2000s, the Supreme Court reversed speech crackdowns on the nascent web, including key pieces of the Communications Decency Act that restricted online sexual content. Politicians and courts have had a waning appetite to sync music, movies, and games out of bounds. Online publishing eroded the power of soft gatekeepers like Walmart and theater chains, which could spike sales of explicit songs and unrated movies, and crowdfunding offered a way to put niche media into the world.
But the road ahead these days looks increasingly dangerous. The online platforms that have transformed art have created their own rules and incentives, shaping what people see online. A broad activist push is trying to pull books from schools, libraries and sometimes commercial bookshelves. A series of new laws could make that even easier. And America’s highest courts have proven willing to put even long-established principles up for grabs.
In 2021, the American Library Association reported 729 complaints about attempts to remove books from libraries, the highest number in its 20 years of record keeping. The efforts were centered around books dealing with gender identity, sexuality, and race or racism, and while many of them played against a backdrop of local politics, they were motivated by a nationwide political campaign. They’re not slowing down, either: Deborah Caldwell-Stone, director of ALA’s Office of Intellectual Freedom, says 2022 surpassed the previous year’s tally by November.
Local battles have been paired with state-level laws designed to lock down libraries and classroom curricula. Florida passed the Stop WOKE Act, one of many recent attempts to keep allegedly repulsive material out of schools, with language that some college professors feared would ban readings about segregation and genocide. Missouri Senate Bill 775 makes it a crime to show multiple visual depictions of sex in private or public school materials.
“This campaign to censor books about gender identity, sexual orientation, race, racism — we’ve never seen such a concerted effort,” says Caldwell-Stone. “I suppose we could recall the McCarthy-era attack on materials believed to communicate a message of socialism or communism. But it’s pretty much the same.”
The consequences are far greater than a few books missing from school shelves. Public libraries are not only visited by children, and in addition to lending books and movies, they are portals to the web for many people. “The whole idea of public libraries is to equip individuals to learn for themselves what they believe,” says Caldwell-Stone. And when librarians pushed back against restrictions, they faced harassment or apparent criminal complaints. In some cases, this has led to communities at least temporarily losing their libraries altogether. State laws like Missouri’s threaten to dramatically raise the former.
Some courts have struck down legal attacks on speech. A judge blocked the Stop WOKE Act in a scathing opinion full of comparisons to that of George Orwell. 1984. A Virginia court threw out an attempt to bar Barnes & Noble from selling two books under an obscure state obscenity law, though initially letting the case move forward. Texas courts were unimpressed when a local official sued Netflix for letting viewers stream ToolsFrench adult film.
But there is also reason to worry. A Texas Court of Appeals upheld an Internet moderation law with stunning implications for speech, and the Supreme Court blocked it with a slim five-to-four majority. At least two judges have called for re-evaluating the standard for defamation, making it dramatically easier for public figures to sue over negative press coverage. Earlier this year, the Supreme Court threw out decades of legal precedent in an overturn Roe v. Wadesomething that could bode ill for all sorts of supposedly settled legal doctrines.
These book-banning efforts are concentrated among Republican activists and lawmakers. But Democrats have floated misinformation bans and anonymity-threatening child safety bills that could also chill speech for years to come. Both parties supported the Children’s Online Safety Act, which aims to protect children from viewing harmful material — but could also lock them out of sex education or LGBTQ resources. Governments worldwide are banning “fake news” that threatens the freedom of the press, and some are pushing for rules that would allow them to pressure websites to remove even legal content.
“I think it’s inevitable that we’re going to see more legislative attacks on the legal foundations of online free speech from both Democrats and Republicans in the United States and political parties in other countries,” says Evan Greer, director of a digital human rights organization. Fight for the Future. . “It’s been steadily increasing, and I would argue maybe even exponentially increasing, over the last couple of years.”
Many of these efforts have been fueled by the rise of social media, which has offered ordinary people a megaphone that puts the law of speech under intense strain. Even as this happened, however, the web itself was undergoing a transformation. Users are concentrated in a few private social networks that play a huge role in what people can say – and how they say it.
Social networks can (and in order to avoid being overwhelmed by spam and harassment, in fact must) ban speech that does not violate the law. But even if this isn’t legal censorship, it shapes culture in significant and sometimes bizarre ways. TikTok, which recently boomed while the social giants of the 10s stagnated, is defining how a new generation of creators talk — giving rise to bowdlerized slang called algospeak to avoid its supposed bans on words from “kill” to “lesbian.” .”
Some algospeak is cheeky, but that doesn’t make it trivial. “The rules that these very large platforms set have an effect on what is seen and heard, but also an effect on what people perceive as good,” says Greer. And increasingly, that means rules against depicting or discussing sexuality and human bodies, a taboo that artists once fought to end. Most major social networks have bans on pornography, and they often define that category loosely, sometimes including almost any nudity outside of some narrow exceptions. “People grew up on the internet where if you see a pair of breasts, you’re like, Oops, I ended up in the wrong place.”
Even when platforms wants more liberal policy, they face ostracism from payment processors and mobile phone stores, which are increasingly playing the kind of gatekeeper role merchants once occupied. Tumblr boss Matt Mullenweg laid out the situation earlier this year, explaining why Tumblr hasn’t lifted its “porn ban” – a set of rules that purged queer and body-positive blogs, among other material, from the site in 2018. ” No modern internet service in 2022 can have the rules that Tumblr made in 2007,” Mullenweg lamented. “You would need to be online only on iOS and sideload on Android, take payment in crypto, have a way to convert crypto to fiat for business operations without being blocked, do a lot of work in age and identity verification and compliance so you don’t go to jail, protect all those identity information so you don’t dox your users and make a lot of money.”
But if there is hope for a more open future, it is that the state of speech has rarely changed faster. The global launch of TikTok took place less than five years ago. The recent surge in library book bans is even newer. Twitter, which has played a huge role in shaping political discourse over the past decade, is undergoing an overhaul that has driven many users to smaller independent platforms like Mastodon. These platforms face their own moderation challenges, but they offer the next decade an alternative to the centralized control of the past decade. “I don’t know that anyone can predict what will happen next,” says Greer.
And Caldwell-Stone believes that when people understand the stakes of speech battles, they get involved — and usually not on the side of censors. “I think that’s where the change has to come. It is to encourage everyone to realize that what is happening in the community is important. That even the library selection is important. That voting for county commissioner who appoints your library board and school board partly knows what their agenda is and what they stand for. And what they should support is everyone’s ability to make their own choices,” she says. “It’s not the government’s role to tell people what to think.”
