In early April 2016, over 11 million documents were leaked from Mossack Fonseca, a Panama-based law firm. Known as the Panama Papers, these documents implicated some of the world's most powerful and influential figures—from sovereign leaders to FIFA executives to oil tycoons—for their use of shell companies, discreet corporations used to hold financial assets.
The publication of the Panama Papers marked a controversial moment in freedom of expression protections. The documents themselves were likely leaked through an illegal breach of Mossack Fonseca's internal databases, but organizations who published the Papers did not engage in these breaches themselves. Rather, they had obtained the documents through an anonymous whistleblower, and as such, could not be directly prosecuted in many nations.
The legality of speech is an issue that has grown increasingly prominent over the last several years. Here in the United States, the First Amendment prohibits government legislation from “abridging the freedom of speech or of the press,” but makes certain exceptions. Defamation, for instance, is not protected by the First Amendment; neither is fraud or “fighting words,” which is language purposefully meant to incite violence. Many of these exceptions are not exactly specific, however. “Inciting violence,” for example, is a tricky term to pinpoint, especially when such incitement needs to be “purposeful.” As such, the interpretation of First Amendment exceptions has gone to district, circuit, and the Supreme Court—who also have had differing interpretations over the years.
Complicating these issues is our new communicative technology. Facebook and Youtube and Instagram are not subject to the First Amendment, and thus have much more leeway in how they regulate their content. In theory, this would allow social platforms to propel almost any voice to the top of the world stage, resulting in a diverse array of voices. But more often than not, this diversity is skewered by each platform’s algorithmic patterning, which promotes people, propaganda, and opinions most similar to a user's own. As Swalé of Forbes puts it in his article “Inception: Social Media’s Influence On Your Opinion,” “If a level of certainty exists [surrounding an idea], social media can provide all the affirmation needed to validate that belief —and it doesn’t matter the topic.” These algorithms have sparked legal and ethical debates in and out of themselves.
New legislation surrounding speech and expression will not just shape the ways we can speak, write, tweet, and post today—but will rather shape the course of our communicative history. If done right, these new laws will harmonize our personal freedoms of expression with the protection of information. But if done wrong, they could enable the total legality of misinformation—and with it, a society where truth is continuously bludgeoned by the comfort of falsehood.