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Computers, Privacy & the Constitution
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Are we witnessing “freedom of speech privatization”?-- By JoseOtero - 15 Mar 2022IntroductionTraditionally, 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. 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.Limitations to freedom of speech arising from the warOn 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. 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. 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).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,.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. 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. 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. 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. ConclusionConsidering 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? 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.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. 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. You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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