Social media are testing the legal boundaries of free speech

Members of the Ku Klux Klan arriving for a rally in Charlottesville, Virginia, July 2017. Photograph: Andrew Caballero-Reynolds/AFP/Getty Images

‘Fighting words” is American legal shorthand for the issue of how far a person’s public speech may inflame listeners before it can be justly restrained. Basically, it asks if the speech is likely to produce imminent lawless action.

In the UK and some other jurisdictions the same legal issue is labelled more sedately. “Public order” and “breach of the peace” are common markers of an old legal dilemma to which technology is giving new complexity. How police, prosecutors, judges and legislators react to it will influence the way social media affect the practical exercise of freedoms of association, assembly and expression in future.

Clashes of racists and counter protesters in Charlottesville last month brought the issue back into focus. Urgency was added last week when Facebook accepted responsibility for its profit-seeking algorithms’ willingness to facilitate businesswith “Jew haters”.

The scenarios that produce “fighting words” court cases vary widely and can be colourful and dramatic, sometimes foolish, vicious, quixotic. The political mood of the era matters. Hindsight and the detached prose of law reports often smooth out what were difficult situations for the people involved and for the law’s decision-makers.

In 2009 in Luton, UK, demonstrators gathered beside the route of a homecoming parade by army veterans of the conflicts in Afghanistan and Iraq. Demonstrators shouted “murderers”, “baby killers”, “rapists”, “terrorists”, “cowards” and “British soldiers burn in hell”. The soldiers’ supporters grew angry; bacon was thrown at the demonstrators, who were moved on by police and charged with public order offences. A judge decided the method chosen to convey opposition to the war – “an otherwise reasonable belief” – was “so unreasonable and disproportionately expressed” it deprived the demonstrators’ speech of legal protection. Essentially, appeal judges agreed.

In 1977, American Nazis, in stormtrooper uniforms, planned to march through Skokie, Illinois, where a large number of Holocaust survivors had made new lives. Judges, “albeit reluctantly”, ruled that the march could proceed and display swastikas.

Most “fighting words” cases have in common what we might call flesh-and-bloodness. The people uttering the contested words (actually, they usually shout) or displaying the challenged symbols are in the same geographical location as the people who are being angered by them. They hear the taunts, are stung by retorts, get spattered by their adversaries’ spittle. Participants have faces, not screens, in their faces.

The relevant law shaped itself in response to these very physical confrontations. But now we also live in cyberspace. Social media operate in parallel with crowd dynamics in the street. “Fighting words” may be in the air, but they will also appear on smartphones in the hands of people on both sides of a heated confrontation. This mix is yet to be reckoned with by the law.

If the response is heavy-handed it will impair the beneficial ways social media allows people to organise and debate, exemplified during the Arab spring. But if policy and law miss the ways new communications technologies could affect a crowd – fake news circulating in real time and designed to provoke, for instance – the public safety/public order dimension might be underestimated.

Charters tend to confer the right to freedom of expression (subject to interests such as public order and the rights of others) “regardless of frontiers”. We are at the frontier between physical and cyber spaces, testing our adherence to notions expressed this way in 1999 by a British judge: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear.”

A US court observed in 1975 that an “at all times disquieting truth” of a pluralistic society was “constantly proliferating new and ingenious forms of expression.”

The benefits and challenges of social media for democratic societies are increasingly apparent. Entities as dominant as Facebook cannot be left to tackle them alone.