Just Because The Rest Of The World Doesn't Have A 1st Amendment, Doesn't Mean It Can Trample Online Speech

from the slow-down-regulators dept

Cecilia Kang recently had a good article in the NY Times about Mark Zuckerberg's bizarre call for governments to take over content moderation on internet platforms. Lots of people pointed out that this is obviously unconstitutional under the First Amendment, and wondered how any lawyer at Facebook could have signed off on the statement. According to Kang, Facebook is quietly arguing that it really only meant for that "regulate me!" claim to be implemented outside the US:

In a flurry of calls and emails to regulators, consumer groups and think tanks — as well as in person, at a weekly breakfast gathering of influential conservatives — the operatives said Mr. Zuckerberg was not encouraging new limits on speech in the United States. His target was mostly overseas regulators, they said, and he has other ideas for Washington.

The article notes -- as people always remind me in the comments when I talk about free speech outside the US -- that much of the rest of the world views free speech protections differently than we do in the US. That should be fairly obvious from the string of articles we've had about other countries ratcheting up speech regulations on the internet in ways that would be obviously unconstitutional if tried in the US. The Kang piece highlights this by noting that those other countries are much less concerned with free speech:

Britain, Germany, Australia, New Zealand and India have adopted or are considering laws that require stricter content moderation by tech platforms. But none of them need to work around the culture of free speech protections, embodied by the First Amendment, in the United States.

There are two responses to this. The first, simply, is that just because other countries might not view freedom of expression in a similar light as the US does, that doesn't mean that people shouldn't continue to fight for similar levels of protection, in part by highlighting how when you move away from it, the most marginalized in society are often the first to have their voice, their criticisms, and their activism stifled.

But there's a larger point, raised by the UN's Special Rapporteur on Freedom of Expression, David Kaye, who notes in a detailed Twitter thread that just because other parts of the world might not have a full First Amendment, that doesn't mean they're not obligated to uphold freedom of expression principles, which many of these laws likely violated. A lightly edited transcription is here:

These governments are bound by human rights constraints/protections - such as those in their own laws, the European Convention on Human Rights or the International Covenant on Civil and Political Rights.... The European Court of Human Rights has constrained government behavior when it comes to free expression restrictions. these aren't 1st am constraints but they are serious & have bite.

He also notes that:

...under human rights law... it's also critical that speech regulations be "provided by law". That means adopted by normal procedure, precise, not leaving too much discretion in government.

In other words, while the rest of the world may be rushing in to try to regulate speech on the internet, they may not be as free to do so as they think.

That doesn't mean, of course, that they won't try -- and that those tries may create huge messes for many years before things get sorted out in court. But to assume that the US is the only place in the world that respects freedom of expression is not accurate.

Filed Under: 1st amendment, censorship, free speech, human rights