A Walk through the Modern Marketplace: Duty of Care to Protect Free Speech

90th Street and 5th Avenue

I enter Central Park and stand in awe face-to-face with the Jacqueline Kennedy Onassis Reservoir, a wide expanse of water in the center of the beating heart of American capitalism, Manhattan. It is a brisk Sunday morning buried in the depths of winter. There is a light covering of matted snow on the ground and a feeble sun aiming its rays upon the water. In an attempt to escape the rat race of daily life, I am taking a few hours to stroll the streets of New York.

Bundled up, I follow the path and come across a woman, standing pronounced on a wooden crate, shouting to the world from the corner of one of the many park greens. A young gentleman approaches the woman while walking a thoroughly enthusiastic Labrador. They proceed to engage in vigorous conversation, gesturing wildly but maintaining a certain level of amiability.

The sight evokes in my mind what I always perceived to be John Milton’s[1] and John Stuart Mills’s[2] conception of a marketplace of ideas.[3] A forum whereby the citizenry of society could engage in vigorous debate with equal access of voice and ear. The goal was that through such debate, a community could better empathize with alternative points of view, form more nuanced opinions and ultimately further overall social goals. The enabling environment of the marketplace would give power to the freedom of speech.

59th Street and 5th Avenue

Exiting Central Park, I am confronted with the concrete jungle that is Midtown Manhattan. In the distance, I hear what sounds like screaming and shouting and walk trepidatiously towards the commotion. As I continue down 5th Avenue I am bumped by a gruff gentleman, veins bulging and eyes bloodshot. Spittle flies from his mouth as he chants aloud.

It is then that I realize that I have stumbled upon a seething mass of protestors. Their anger is visceral. They scream in unison, holding signs aloft that exclaim their frustrations. Police line the street and I look to extricate myself from the situation rapidly.

Passing the threshold of the protest, I take a moment to reflect on the scene. I stand at the base of a man-made canyon surrounded by proclamations of wealth and economic progress, yet on the street people brave the elements to shout at the heavens.

Unlocking my phone, I am assaulted by notifications that describe similar rage across the world. India.[4] Hong Kong.[5] France.[6] Iraq.[7] The notifications grow numbing and irritating, but the polarization of our society is evident. Despite record economic success, technological innovation and significant reduction in the levels of extreme poverty, in many parts of the world citizens appear to be enraged.

While people continue to exercise their freedom to speak, is the marketplace in which they speak one that facilitates the goals of its original conceivers? Such a marketplace requires the enabling characteristics of a level playing field and protection of speech. However the marketplace also provides an environment that empowers those who listen through protections on how such speech should be proffered.

In furtherance of these characteristics many legal protections have formed around freedom of speech and press. The protections are enunciated within such preeminent texts as the United Nation Declaration on Human Rights,[8] Declaration of the Rights of Man[9] and the United States Constitution.[10] Is freedom of the press, a corollary of the freedom of speech, helping society tame the flames of social unrest and disillusionment? Does this market continue to act as a forum to further social goals or rather one that perpetuates underlying biases and polarization?

42nd Street and Broadway

My quiet walk to escape the rat race of modern society is no more, yet I am pulled inextricably further into the belly of the beast. With my head swirling with unanswered questions and ears ringing from the protestors, I turn into Times Square and am assaulted with further sensorial overload. Even at this midday hour the neon lights are burning, billboards pulse rhythmically and tourists pose dangerously in an attempt to optimize content for their social media feeds.

Times Square takes its name after one of the great, private media institutions of the United States and the world. Ironically, while the New York Times continues to be viewed as a bastion for freedom of speech and the press, it stands in stark relief to the modern shift towards special interest journalism. We are inculcated with accusation of ‘fake news’ and co-option of the media from those with political power and capital, all eroding our faith in what we read and hear. Spurred by deregulation, ownership of media in many Western democracies is becoming ever more concentrated.[11] Furthermore, in the past five years we have observed that 19% of ‘free’ countries have seen a reduction in press freedom.[12]

The messages dominating the senses are delivered from those with privilege. Corporations replete with funds and those with political power can afford prime real estate within this modern marketplace.

The original conceptions of a marketplace of ideas with a level playing field and equality of access no longer holds. The advertising hoardings are now a mere façade covering the special interest underbelly of our modern society.

Mulberry Street and Canal Street

After such heady thoughts my mind turns to thoughts of the stomach; from which neighborhood should I get lunch? To one side of me are the mouthwatering smells of carb-ilicious pasta, pizza and cannoli of Little Italy. To the other side are the visual delights of Peking duck, dumplings and noodles in Chinatown. These neighborhoods, like many in New York, are both dense cultural remnants of immigrant communities and agglomerations of highly profitable modern business.

Manhattan is a microcosm of our increasingly interconnected, globalized society. At no point in history has the world been so small, yet we still coalesce in neighborhoods of people who are so similar to us. These neighborhoods, these echo chambers, reinforce our beliefs and norms. Our modern neighborhoods are no longer just physical, but virtual and intellectual as well. We ascribe our policy preferences as an effect of party affiliation and not vice versa.

Within the marketplace of ideas, the curation of these neighborhoods is increasingly being handed to a smaller and more powerful set of moguls — social media moguls. These organizations leverage black box algorithms to ensure the sustainability of their highly profitable business models.[13] It has become evident in recent years that this includes the exploitation of our behavioral bias towards local comparison groups,[14] our modern neighborhoods.[15]

We live our lives in neighborhoods that are becoming ever more homogenous on an intellectual level yet heterogenous on a global level. The streets between our neighborhoods get ever more narrow, but the gates to enter get ever more reinforced. The local elite heighten our walls through tactical curation of the views that are given voice in our neighborhoods, all with the goal of maximizing their control. Throwing stones across the street to the ‘others’ is our social playtime and fewer and fewer of us are willing to cross the void to just experience life across the border.

I have lost my appetite and continue walking.

Wall Street and Broadway

As I near the southern tip of Manhattan Island, the ostentatious display of corporate power physically manifests itself in glass and girders rising to the heavens. Mere steps away from me lies Alexander Hamilton who stated, “that the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends.”[16] I question whether the modern media ends are motivated by good and justifiable reasons. Surely profit motivation that reinforces social and economic inequality cannot be a fair price to pay for the deterioration of social cohesion and corrosion of the lofty goals ascribed to freedom of speech and the press.

I stand in front of Trinity Church and next to me, leaned up against the fence of the church, is a disheveled man surrounded with a piecemeal assortment of blankets and belongings. He appears to be sound asleep and a sign at his feet requests donations for assistance to remove him from his predicament.

Juxtaposed against the beating heart of our capitalist society across the street, the New York Stock Exchange, I am struck by the feeling of shock that worlds can so seamlessly coexist: abject poverty next to overflowing wealth, vanguards of the future next to fathers of the founding. While millions are lifted from extreme poverty each year, inequality and disillusionment continue to compound.[17] Anaesthetized by a modern marketplace of ideas that perpetuates our own ideologies, we are able to justify the binary opposition of our society.

Battery Park

Pondering this thought I stumble onward and am once again faced with a wide expanse of water, this time with lady liberty standing pronounced in the distance. I stand in the shadows of the city and the sights and sounds of the day weigh heavily on me as I take a seat to reflect.

My quiet stroll through Manhattan has elucidated conceptions of modern speech and press that have very troubling consequences. In the hopes of fostering unity and social progression, freedom of speech and the press are legally protected in most democratic societies. However, through co-option of the marketplace by special interests and profit-minded curation of messages, certain voices now take priority.

Our freedom of speech and the press must be re-calibrated through the protection of our modern marketplace of ideas.

A duty of care to the public should be enforced on the press and those with the ability to curate content delivery. This duty of care should be extended to editorial boards and more generally those with editorial control of platforms that disseminate speech to the public for private monetary gain. Such a duty to the public must be prioritized over duties to owners of these private organizations. Such a duty of care has been considered in the past, but none have been implemented.[18]

Such a duty of care recognizes that participation in the modern marketplace of ideas brings with it a responsibility to others within that marketplace. A responsibility to be transparent about the source of messages. A responsibility to provide free and equal access prioritized not by profit maximization but rather a duty to consumers. A responsibility to foster the marketplace of ideas as a public good, where no one can be excluded from access and where one’s participation in the marketplace does not affect others’ participation. Through the inculcation of such a duty, participants in the marketplace of ideas will have the opportunity to interact with a more diverse set of ideas and further the underlying goals ascribed to freedom of speech.

In a practical sense, such a duty would require private organizations to be transparent about the source of content. Organizations would need to be transparent around their editorial decision-making processes and the design of algorithms used to determine prioritized publishing of content. The duty would impose certain reporting requirements on private organizations targeted at facilitating this increased transparency. Fundamentally, this transparency would aim to ensure that maintenance of the public good take priority over profit maximization, based on a common law conception of reasonableness. Some form of regulatory oversight would be required to enforce the duty.

While regulations can be seen as a first step towards redressing the balance that we observe within our modern marketplace, it can only go so far. A deeper set of norms must be entrenched within all participants of the marketplace. Those with the power to determine content delivery must understand that monetary benefit and political power are merely short-term gains. However, more importantly, we who participate in the marketplace must take it upon ourselves to ensure it is protected and not desecrated. The continued perversion of the marketplace of ideas will only further perpetuate the increased polarization and anger that we observe across the globe.

A cool winter breeze sobers me to the present. As I sit looking over the Statue of Liberty I am reminded of the strength of the human spirit. On the base of the Statue is written, “Give me your tired, your poor, your huddled masses yearning to breathe free.”[19] I deeply believe that we all still yearn to breathe free, to speak freely and to engage in a marketplace of ideas that will provide mutual benefit to those that participate.

I stand, turn around and begin the trip home.

[1] Milton, J (1644) Areopagitica; A speech of Mr. John Milton for the Liberty of Unlicenc’d Printing, to the Parliament of England.

[2] Mill, J S (1859) On Liberty.

[3] Abrams v. United States, 250 U.S. 616 (1919), Justice Holmes dissenting first used the term ‘marketplace of ideas’.

[4] Kuchay, B. (2020) ‘Fight for India’s soul’: Protests mark Republic Day celebrations, Al Jazeera, [Online]. Available at: https://www.aljazeera.com/news/2020/01/india-soul-protests-mark-republic-day-celebrations-200126140155387.html (Accessed 29 January 2020).

[5] Goldman, R. & Yu, E. (2019) Hong Kong Protesters Return to Streets as New Year Begins, New York Times [Online]. Available at: https://www.nytimes.com/2020/01/01/world/asia/hong-kong-protest.html (Accessed 29 January 2020).

[6] Nossiter, A. (2020) At the Heart of France’s Long Strikes, a Fight Between the Haves and the Have-Nots, New York Times [Online]. Available at: https://www.nytimes.com/2020/01/09/world/europe/france-strikes-pensions.html?searchResultPosition=2 (Accessed 29 January 2020).

[7] Rubin, A. & Hassan, F. (2020) Protesters Mass in Baghdad, Demanding U.S. Leave Iraq! New York Times [Online]. Available at: https://www.nytimes.com/2020/01/24/world/middleeast/protests-iraq-baghdad.html?searchResultPosition=32 (Accessed 29 January 2020).

[8] The Universal Declaration of Human Rights, 1948–1998. [New York], [United Nations Dept. of Public Information], Article 19

[9] Robespierre, M. (1850) Declaration of the rights of man and the citizen [England], Article 11.

[10] United States Constitution, Amendment 1.

[11] Molla, R. & Kafka, P. (2019) Here’s Who Owns Everything in Big Media Today, Vox Recode [Online]. Available at: https://www.vox.com/2018/1/23/16905844/media-landscape-verizon-amazon-comcast-disney-fox-relationships-chart (Accessed at 30 January 2020).

[12] The Economist (2019) The Global Gag on Free Speech is Tightening; citing Freedom House (2019) Freedom in the World 2019.

[13] Horowitz, J. (2019) Facebook Earnings Soar as Zuckerberg Warns of ‘Tough Year’ Ahead Politically, Wall Street Journal [Online]. Available at: https://www.wsj.com/articles/facebook-reports-growth-in-revenue-users-11572467564 (Accessed at 30 January 2020).

[14] Tversky, A. & Kahneman, D. (1974) Judgement under Uncertainty: Heuristics and Biases, Science, New Series, Vol. 185, №4157, 1124–1131, 1125.

[15] Sisario, B. (2018) Facebook’s New Political Algorithms Increase Tension with Publishers, New York Times [Online]. Available at: https://www.nytimes.com/2018/06/14/business/media/mark-thompson-facebook-algorithm.html (Accessed at 30 January 2020); Bleiber, J. & West, D. (2015) Political Polarization on Facebook, Brookings Institute [Online]. Available at: https://www.brookings.edu/blog/techtank/2015/05/13/political-polarization-on-facebook/ (Accessed at 30 January 2020).

[16] People v. Croswell 3 Johns. Cas. 337 N.Y. 1804.

[17] Resources and research available from: United Nations, Department of Economic and Social Affairs Poverty [Online]. Available at: https://www.un.org/development/desa/socialperspectiveondevelopment/issues/inequality.html (Accessed at 30 January 2020).

[18] United Kingdom Parliament (2019) Online Harms White Paper [Online]. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793360/Online_Harms_White_Paper.pdf (Accessed at 30 January 2020)

[19] Lazarus, E. (1883) The New Colossus.