Freedom of speech is an often debated and deeply contested issue. This is because the boundaries between what counts as speech and what counts as conduct are not entirely clear. We have all been moved by words. But have we been moved so far as to break the law?
I research fiction, form, genre in the context of politics and culture. For this reason, the concerns I will pick up on will be to do with point of view and how it might betray its own ideological workings. In my view, a deeper concern with freedom of speech is to do with freedom of thought. However, I might not have the space to engage fully with this. I will situate the issues of freedom of speech in the context of documentary films. The way I conceive of documentary films is that they are not simply the truth, but they are a presentation of truth as well as a representation of truth. In this way, it is ‘twice removed from reality.’. The presence or absence of truth itself leads us into murky waters. This is relevant to freedom of speech because this impacts what kinds of truths can be told in the documentary form. However, the relationship is not as linear as one might imagine. More freedom of speech does not guarantee more truth. Although, it might guarantee a cacophony of voices.
I have chosen to draw an analogy between ‘fighting words’ and the documentary form – the point of similarity being their potentially provocative nature. My understanding of the provocative nature is that it involves asking the question – does it incite people to break the law? I will not get into the legal technicality of this understanding and how it might function in a court of law but stick to fiction where freedom of speech is also an issue but often presents itself as freedom of expression. Here the same question can be asked – does the freedom of expression in the documentary form incite people to trust propaganda that peddles forms of ideology? The nature of ideology in the documentary films I will address is provocative.
Moreover, the issue is tied to other concerns – what is the responsibility of a documentary filmmaker? Should they claim to be journalists? Should they rely on mimetic modes of representation to appear authoritative or attempt journalistic accounts or experiment with form? If they choose to do this without supporting evidence, then how do we hold them accountable? How to approach truth when it comes to storytelling? To move the conversation forward I will discuss a documentary called The Creepy Line. The film is directed by M.A. Taylor released in 2018 and it peddles the idea that tech giants such as google and Facebook collect data and profile its consumers in order to manipulate the data on them to influence their opinion. This impacted election results and was aimed at suppressing conservative opinions.
Now, the form of the film includes interviews and claims to rely on scientific analysis, however the people featured in the documentary share a strikingly similar opinion on the matter. From the start, the balance in perspective is skewed. A neutral analysis of the subject as not even been attempted and yet through the use of interviews and heavy credentials of the interviewees we are to accept the seemingly true claims about how google filters our searches. The fact that google and Facebook collect data and search engine optimization will filter the most relevant data and present it first has been used as evidence for swaying votes in an election. The first two statements are true but the third claim that these are used to suppress the voice of the conservative right reveals a tendency towards peddling propaganda. The film interviews people with credentials such as Dr. Jordan Peterson, Professor of Psychology, University of Toronto; Peter Schweizer, New York Times best-selling author; Barry Schwartz
CEO, Rusty Brick; Marlene Jaeckel, Co-founder, Polyglot Programming; Phil Kerpin, President, American Commitment; Brad Shear, Managing Partner, Shear Law; Daniel Stevens, Executive Director, Campaign for Accountability; Luther Lowe Senior Vice President, Yelp.
I will address the claims to scientific analysis – on which the documentary relies. This claim rests on research conducted by Dr. Epstein. For the sake of brevity, I am choosing to engage with him rather than offering a detailed analysis of each interviewee. Dr. Epstein’s research disclosed in a testimony presented at a Senate Judiciary Committee has been disputed by the wider academic community. His claim that undecided voters shifted their votes because google and Facebook presented Hillary Clinton as a more favourable candidate in the 2016 elections has not been sufficiently verified. His specific claims are problematic, particularly the claim about the number of votes that were swayed towards Hillary Clinton in 2016 elections. Academics have analysed the extent to which the Federal Election Commission failed to regulate Google and Facebook’s profit motive that limits access to information– which is an issue but the claim of suppression of conservative voices is more fiction than truth, or dare I say propaganda that peddles right wing ideology. The credibility of the interviewees, the claim that fake news is visible but data manipulation is not and that this is more of a problem for conservative voices – don’t hold up to scrutiny. However, the adherence to documentary convention such as inclusion of interviews, matched up by the setting and supported by props such as the use of chairs, the serious tone established by the use of black backdrops and minimal stage props – have all been employed to sustain the pretense of non-fiction elements. Now, the order of the scenes and the way they move from one claim to the other is what is at stake here. A film is cut into pieces and presented as a whole – linked in a way to tell a story. It is up to us to separate fact from fiction, especially when they are presented as facts. It is important to note that the film merely represents what it believes to be facts. This film is meant for a right-wing audience that believes that liberals are suppressing freedom of speech and expression of conservative views. By all means, don’t take my word for it- watch the film.
Now, documentaries adhere to journalistic conventions of recording and interviewing but they have been known to take liberties with their methods. Fact and fiction are threaded through the mode of storytelling. Literary conventions of mimesis can stand in for facts. Often classic documentaries stress on chronicling and interviews, however these do not in themselves constitute facts. Issues such as revealing sources and verifying reality present many difficulties including the need to protect the sources themselves.
The line between journalistic storytelling and propaganda in documentaries can be quite difficult to tackle. A more straightforward example that is more to do with freedom of speech imposed by totalitarian states changes the question altogether by subverting the primacy of fact over fiction. When you cannot tell the truth then what do you do? On the one hand, you have more obvious violations of freedom of speech in states like Saudi Arabia, China, Indonesia – and in these places artists have been known to take liberties with freedom of expression in order to represent the truth – once again making it harder to separate fact from fiction. A separation that might not entirely be necessary. I will not defend this claim either but would encourage people to come to their own conclusions.
While, less obviously we have more seemingly egalitarian states that manipulate what can be searched on the internet by using profit as their primary motive or limit on the users’ choice. A choice imposed by corporations thus limiting freedoms of people. (Google and Facebook – one could argue function like totalitarian states in that they restrict access to information through algorithms.) This is of course not strictly a matter of restricting freedoms of speech or expression at this point but rather becomes a question of choice. In contrast, we also have a more direct form of suppression of speech where victims are not allowed to speak. To make this point about the separation of fact and fiction and freedom of speech, I would like to discuss a documentary called The Act of Killing by the critically acclaimed filmmaker Joshua Oppenheimer. The film was intended to uncover the historical facts of the Indonesian genocide of 1965-66, which was a result of a clash between the army and the communist party that was in power at the time. This led to a regime change and many suspected communists were killed. It has not been possible for scholars to agree on the scale of this massacre, but it amounts to one of the worst genocides the world has witnessed. What is more startling is that the regime that caused the genocide was in power for decades after. This means that even in 2012 when the film was being filmed, the victims were not allowed to speak. The regime intervened and this led to arrests and detention. For Oppenheimer, this meant that he had to speak to the perpetrators – who – to his surprise wanted to reenact the violent killings, often with props, and most importantly were allowed to speak.
The films use of surrealism, fictional reenactments and the invitation to boast as a method to talk about the genocide in order to find a way out of the oppression imposed by the regime and in doing so goes beyond discovering the horrors of the past that cannot be documented by reproducing a powerful experience or it reproduces the truth in effect rather than through documentation – an effect the executive produce Errol Morris calls ‘outrageous’ in an interview. It raises deeper questions about the present: ‘Why are people repeating these crimes in front of the camera? To what end? What does it say about us and about them?’
 Plato’s theory of Mimesis
 Stephen W. Gard, Fighting Words as Free Speech, 58 WASH. U. L. Q. 531 (1980). Available at: https://openscholarship.wustl.edu/law_lawreview/vol58/iss3/6
 Haenschen, Katherine & Wolf, Jordan, 2019. “Disclaiming responsibility: How platforms deadlocked the Federal Election Commission’s efforts to regulate digital political advertising,” Telecommunications Policy, Elsevier, vol. 43(8), pages 1-1.
 VICE broadcasting and media channel https://www.youtube.com/watch?v=LLQxVy7R9qo&ab_channel=VICE
Joshua Oppenheimer’s interview by film courage https://www.youtube.com/watch?v=8GWJtKFGevM&ab_channel=FilmCourage
ABOUT THE AUTHOR
Trishla Singh is a fourth year PhD student at Durham University and the topic of research is representation of torture in contemporary fiction post 9/11. She focuses on the experimental form of the novel rather than on law per se. Although, she engages with political issues such as propaganda and how the experimental form of the novel can contribute to the analysis of political issues such as the persistence of pro-torture rhetoric in contemporary times. In order to do this, Singh relies on various forms of discourses such as law, neuroscience and journalistic writing.