Are we really enjoying freedom of speech right now?

-- By JoseOtero - 15 Mar 2022

Introduction

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._"

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?

A Freedom of Speech Problem?

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.

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.

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.

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).

Therefore, could the course of action by the private media corporations violate or right to freedom of speech under the First Amendment?

Private entities' abridgment of speech

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/).

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.

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).

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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