The NBA and Free Speech Online

The National Basketball Association has built a reputation as one of the most socially conscious professional sports leagues in the United States. Whether it be Lebron James warming up in an “I Can’t Breathe” t-shirt, Kevin Love opening up about his mental health issues, or Kyrie Irving raising the question of whether the Earth is flat, the association has always allowed its players to speak their minds.

Yet the recent controversy involving Rockets general manager Daryl Morey and the Chinese government seemed to throw that reputation into question. And while politicians and fans alike have been quick to call out the responses from the NBA, the Houston Rockets and superstar Lebron James, this whole saga actually sheds light onto a larger topic: free speech online.

For those who have missed the news, Morey tweeted a message in support of the Hong Kong protests, causing massive blowback against the NBA by the state broadcaster in China as well as the Chinese Basketball Association and Tencent, a Chinese technology company. Keep in mind, the Rockets are arguably the most popular team in China due to Yao Ming’s career, and the NBA sees China as one of the largest markets for growth. While the association’s commissioner did defend Morey, the general response from the NBA community — most notably the apology from Morey and the criticisms of his actions by James — outraged American fans, who believed the Chinese government had dictated their response.

As China Central Television explained when it pulled NBA broadcasts, “We believe that any speech that challenges national sovereignty and social stability is not within the scope of freedom of speech.” This clearly doesn’t track with the American idea of free speech. And given that a foreign government had used a private American entity as a means to control what a private American citizen could say online, it is unsurprising that American fans responded the way they did.

This whole scenario shows why it is important to account for the complex interactions between governments, speakers and the private platforms that stand between them. As Jack Balkin observed in his pluralist model of free speech, private platforms inject a new challenge that the traditional dichotomy of speech regulator versus speakers fails to account for. These platforms and other private businesses can regulate speech on their services that traditional regulators may not have the legal authority or technical means to reach. In this case, for instance, the Chinese government cannot directly control what Morey says, as he is outside of its jurisdiction. Yet given that the NBA desires access to the Chinese market, China’s government can exercise indirect though significant control over the NBA’s actions. The NBA — which acts as a private platform for its players, teams and employees — can then exert that control over the speech that China otherwise fails to reach.

In the United States, even outside of the First Amendment, we have protections against this type of intrusion. Under Section 230 of the Communications Decency Act, private platforms are not held to be publishers of content generated by the users of the service. This allows platforms to let users openly discuss the topics that interest them, but it also gives the platforms the flexibility to remove speech that users find objectionable or may silence other speech. And under this regime, our internet ecosystem has become the envy of the world.

While these protections undoubtedly promote free speech in the United States, this benefit is lessened when foreign governments impose liability on platforms that do not moderate in ways they like. And unfortunately, these decisions can have an effect beyond the borders of the countries they rule.

Therefore, it is critical that the United States push to include broad liability protections for private platforms and other intermediaries in trade agreements to ensure that speech remains unfettered by the political whims of politicians across the globe. The United States-Mexico-Canada Agreement, which Congress has yet to ratify, incorporated such protections. They must remain a key component of any future negotiations.

At the same time, it is also important to keep a vigilant eye on proposed reforms in the United States. Sen. Josh Hawley (R-Mo.) for example, introduced a bill that would remove Section 230 protections for platforms that aren’t politically neutral as defined by a minority of the Federal Trade Commission, effectively allowing FTC commissioners to dictate online content moderation policies. As talk on the Hill about ways to reform Section 230 continues, lawmakers must carefully consider the effect any change may have on free speech.

There is little doubt that governments have a legitimate interest in online speech. However, the old dichotomy of the user versus the regulator no longer makes sense in a world where private platforms serve as intermediaries that make speech possible and where governments can target these platforms as a means for silencing users’ speech. We can’t do much about China, and the NBA will undoubtedly have to deal with this issue in the future. But we can and should focus on strengthening these protections at home and with our allies to ensure free speech online remains protected.

Jeffrey Westling is a technology and innovation policy fellow at the R Street Institute, a free-market think tank based in Washington, D.C.

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Correction: A previous version of this piece misspelled Jack Balkin’s name.

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