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< | Are we witnessing “freedom of speech privatization”? |
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> | Are we really enjoying freedom of speech right now? |
| | -- By JoseOtero - 15 Mar 2022
Introduction |
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< | Traditionally, freedom of speech is a constitutional law subject matter. Constitutions throughout the world tend to approach this issue from a government-centered standpoint. In simple words, freedom of speech tends to be “guaranteed” by prohibiting governments and states from controlling and regulating journalistic and editorial activities. For example, the First Amendment of the United States Constitution provides that Congress shall make no law abridging the freedom of speech or of the press.
However, the recent boycott or “cancellation” of western companies to Russia has shown a twist from the traditional government-centered “freedom of speech” approach. However, when and where this shift began is not the topic of this paper. Herein we will only point out that the Russian invasion or “special tactical operation” has shown like never before this new paradigm. |
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> | Traditionally, freedom of speech tends to be guaranteed by prohibiting governments and states from controlling and regulating journalistic, editorial, and dissemination activities.
However, our right to freedom of speech involves another dimension, equally important as the freedom to speak. That is the freedom to hear, and in Justice Marshall's words in his dissenting vote in Kleindienst v. Mandel, "_the First Amendment protects a process (…) 'reason as applied through public discussion,' (…); and the right to speak and hear—including the right to inform others and to be informed about public issues—are inextricably part of that process. The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin. But the coin itself is the process of thought and discussion._" |
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< | After Russian forces set foot in Ukraine, some countries rushed to impose economic sanctions over Vladimir Putin’s regime. Private corporations throughout the world have followed their countries’ actions and boycotted Russia in an attempt to pressure it to cease its military. Companies such as Apple, H&M, Disney, Netflix, Volvo, Daimler, Maersk,MSC or McDonalds? have ceased operations or trades with Russia. |
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> | In this regard, it is clear that no government action has constrained our free speech during Ukraine's invasion by Russia. But, on the other hand, are we citizens hearing arguments from all sides, or are we blindsided by the mostly uniform editorial line of western media? Regardless of who's right about invading Ukraine, do we have all the information to make our own informed decision? Could this recent boycott or "cancellation" of western companies to Russia entail some freedom of speech concerns arising not from government action but from private conduct? |
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< | Limitations to freedom of speech arising from the war |
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< | On the other hand, Russia banned western media from transmitting news in the country, claiming they were disseminating fake news. In return, several major media providers of the west (e.g., Meta, Twitter and Google) blocked Russian media outlets from running ads on their platforms. The Russian government responded by blocking these platforms. Furthermore, Russian state communications blocked Russian news that were criticizing the Kremlin’s official statements. |
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> | A Freedom of Speech Problem? |
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< | In this regard, it is noticeable how the reciprocal ban of western versus Russian media and news has come from different directions: from the government on the one hand and private companies on the other, respectively. The coordinated effect of the western media to ban Russian communications has been strong, producing an effect in most Western civilizations. Some people might say that this collective effort from the private media has had a stronger impact than if the United States government wanted to ban Russian media. |
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< | What use does it have for the United Stated Constitution to guarantee freedom of speech if the media as a whole decides to ban what they deem as “immoral” or “fake news”? American Courts have rightly recognized the right for media to decide what not to disseminate: “the First Amendment only restricts the actions of the government, not of private parties” (CYBER PROMOTIONS, INC. V. AMERICAN ONLINE, INC. 948 F. Supp. 436 (E.D. Pa. 1996), and “one important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say” (ZHANG V. BAIDU.COM INC 10 F. Supp. 3d 433 (S.D.N.Y. 2014). |
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> | Russia banned western media from transmitting news in the country, claiming fake news dissemination. In return, several media providers of the west (e.g., Meta, Twitter, and Google) blocked Russian media outlets from running ads on their platforms. The Russian government responded by blocking these platforms. Furthermore, Russian state communications blocked Russian news that were criticizing the Kremlin's official statements. |
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Why are you citing some district court cases here? These are basic propositions for which you can give better authority, with a link rather than a cite to material the reader can't see with click,.
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> | It is noticeable how the reciprocal ban of western versus Russian media and news has come from different directions: from the government on the one hand and private companies on the other, respectively. |
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< | The right to decide what not to say is a pillar of freedom of speech and is the negative dimension of that right. It allows individuals and entities to have an editorial line and report what they deemed necessary or correct. |
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> | Should we be concerned about this? As the majority vote noticed in Mandel, the Supreme Court has held that the First Amendment protects the right to receive information and ideas, the freedom to hear as well as the freedom to speak. This process between receiving and speaking produces discussion among individuals and allows us to solve public policy problems and maintain the legitimacy of our authorities. Paul Chevigny argues that this process is in the best interest of governments, and it is their duty to foster it. |
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< | The right to decide what not to say is a pillar of freedom of speech and is the negative dimension of that right. It allows individuals and entities to have an editorial line and report what they deemed necessary or correct. |
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> | However, there has been no state action to deprive us of our right to listen in this case. If it were so, that would constitute a breach of our Free Speech rights (in Lamont v. Postmaster General, the Supreme Court reassured the right of an American addressee to receive communist propaganda). |
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< | However, what happens when the media as a whole decides that some things are incorrect, immoral or unworthy of attention, like what has happened to Russian media? From a factual standpoint, it is not even necessary for all media outlets to take a stand, it is only required for the largest players and providers of information to take a stance. Considering the impact of social media (i.e., in some countries more than 70% of the population get their news from social media, such as South Africa, the Philippines (https://www.statista.com/statistics/718019/social-media-news-source/)) traditional media outlets are focusing on providing information’s sought by social media. The latter entails that it is only necessary for the most prominent social media providers to decide what to show and what not, and the traditional media will follow soon after. |
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> | Therefore, could the course of action by the private media corporations violate or right to freedom of speech under the First Amendment? |
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< | In this regard, the Russian invasion of Ukraine, or the “special operation”, depending on who’s naming the event, has shown like never before the power of the western corporate media when it comes to freedom of speech. The uniform movement by companies has had an even stronger impact than the politics of a government: the Russian government nonetheless. |
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< | Conclusion |
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> | Private entities' abridgment of speech |
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< | Considering the above, we must ask ourselves: is there really freedom of speech in western countries? Who is acting as gatekeeper of it? Constitutionally this might be a sacred right. However, if a bunch of corporations decide what is correct to disseminate and what is not, are we enjoying freedom of speech? |
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> | As a general rule, the Supreme Court has ruled that the First Amendment only prohibits governmental abridgment of speech. "By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum." (https://supreme.justia.com/cases/federal/us/587/17-1702/). |
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< | Fortunately, some people are reacting to this absolutism shown by corporate media giants and pointing out that freedom of speech requires allowing a tribune to whoever wants to speak, even if we don’t like it. Some of these new “freedom of speech” defenders are the ones we least expect it from, like Elon Musk, who said he would not block Russian outlets from his Starlink system. |
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> | However, what happens when the media as a whole decides that some things are incorrect, immoral, or unworthy of attention, like what has happened to Russian media? From a factual standpoint, all media outlets don't have to take a stand, it is only required for the largest players and providers of information to do so, and it would profoundly impact our right to hear. Considering the impact of social media (i.e., in some countries, more than 70% of the population get their news from social media, such as South Africa, and the Philippines (https://www.statista.com/statistics/718019/social-media-news-source/), traditional media outlets are focusing more every day on providing information's sought by social media. The latter entails that it is only necessary for the most prominent social media providers to decide what to show and whatnot, and the traditional media will likely follow. |
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What is the basis for the claim that there is a free speech right here? You are based not on the right of the foreign government not to have its propaganda jammed, right? You are actually making a claim about the right to hear, to receive information from abroad despite the foreign relations power of the United States. I discussed that aspect of the situation, but you don't start from Mandel or from the writings of Paul Chevigny, which would both be useful starting points in the next draft. |
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> | Under the State-action doctrine, a private entity may be considered a state actor, so courts might hold that private entity liable if it violates our freedom of speech rights (https://supreme.justia.com/cases/federal/us/587/17-1702/). The three tests used for this doctrine are (i) the "nexus test" ( i.e., whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself, (https://supreme.justia.com/cases/federal/us/419/345/),(ii) the "symbiotic relationship" test (i.e. The State has so far insinuated itself into a position of interdependence with a company that it must be recognized as a joint participant in the challenged activity, (https://supreme.justia.com/cases/federal/us/365/715/), and (iii) the "public function" test (i.e. The gravamen of the "public function" test is whether the government is effectively using the private entity in question to avoid a constitutional obligation or to engage in activities reserved to the government, https://caselaw.findlaw.com/us-3rd-circuit/1233096.html). |
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< | Then there is the state action problem. No government is interfering, and the Russian government has plenty of means to reach you with whatever it wants, so where—no matter how dialogic our theory of the First Amendment may be—is our hook to treat this as a "right of free expression" concern? I think you can give an answer, but at present you owe the reader and the next draft should make good.
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> | Could we deem that one or more news outlets acting in conjunction to stop disseminating news from another country have violated our rights? Under Paul Chevigny's reasoning, it's the government's duty to provide and expose to alien ideas and speech. In this sense, we could argue that the U.S. Government is avoiding its constitutional obligation toward its citizens by relying solely on private media to inform us, which could trigger the "public function test." Therefore, if we consider that the First Amendment protects our right to hear and receive foreign ideas, then the private media would be filling the void left by the government's inaction (avoiding its constitutional obligation under Paul Chevigny's theory). Thus, if the media fails to satisfy its duty to properly inform us from all standpoints, we could consider that western corporate media would be violating our freedom of speech rights as citizens. |
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