Stop Foreign Censorship Threats
SACRAMENTO, Cali. — When Americans think about perils to their First Amendment rights, they point their fingers at their political foes. Both parties offer reasons for concern. The Biden administration had, as one Reason headline described a court ruling, “unconstitutionally ‘coerced’ or ‘encouraged’ online censorship.” The self-described free-speech absolutists in the Trump administration have been as bad or arguably worse. In one of many examples, the president has backed the FCC plan to strip licenses from broadcasters that don’t toe the White House line on the Iran war.
But there’s a threat to Americans’ speech rights that should draw the ire of Republicans and Democrats alike: Efforts by foreign governments to use their muscle to export their censorship regimes onto U.S. soil. As a Wyoming bill called the GRANITE Act (Guaranteeing Rights Against Novel International Tyranny and Extortion) explains, “Foreign states and international organizations increasingly seek to restrict, penalize or compel disclosure of speech that occurs wholly within the United States by threatening or attempting to enforce foreign censorship laws.”
The legislation pointed to Great Britain’s action against U.S.-based 4Chan, threatening a $25 million fine for noncompliance with British online safety laws. It also explained that Brazil ordered X to censor user accounts and turn over data to that country’s supreme court — or face platform shutdowns in that country. Obviously, the internet world is international, so foreign efforts to muscle American tech firms and tech users can lead to an erosion of our speech rights at home.
As my R Street colleague and tech expert Spence Purnell explained, the Wyoming bill — however praiseworthy — isn’t sufficient. Individual states cannot do much to stop this growing threat, with such bills mainly serving a bully pulpit role. The U.S. House of Representatives is mulling a similar measure, which is appropriate given that “a federal anti-censorship shield would carry the legal authority, diplomatic weight, and constitutional standing that state-level measures inherently lack.”
A February report from the U.S. House Judiciary Committee detailed this alarming scenario:
[I]n 2015 and 2016, the European Commission began creating various forums in which European regulators could meet directly with technology platforms to discuss how and what content should be moderated. Though ostensibly meant to combat ‘misinformation’ and ‘hate speech,’ nonpublic documents produced to the Committee show that for the last 10 years, the European Commission has directly pressured platforms to censor lawful, political speech in the European Union and abroad.
What would a federal GRANITE Act accomplish? Per the Adam Smith Institute, the measure “aims to allow U.S. persons, individuals or companies, to sue foreign governments or regulators that attempt to impose censorship or content-moderation rules on them. Under the bill, foreign censorship enforcement would lose sovereign immunity in U.S. courts.” It may be unwieldy to sue foreign governments, but the legislation would provide “a real deterrent against removal requests coming from abroad, because they’d face liability and potentially huge damages if they comply.” In other words, it would give targeted firms backbone to stand up to foreign pressure. That’s needed given U.S. tech firms’ willingness to take the path of least resistance.
In December, Secretary of State Marco Rubio barred the U.S. entry of five Europeans whom he accused of leading “organized efforts to coerce American platforms to punish American viewpoints they oppose.” That perhaps was more symbolic than anything else, but it shows that the current administration — despite its own appalling hypocrisy on free-speech issues — is at least taking this particular EU threat seriously.
A more coordinated federal approach is in order. Purnell is concerned that the current approach, which involves creating a private right of action, would be ineffective. “Rather than deputizing millions of individual litigants or relying solely on companies whose financial incentives may favor quiet compliance over costly litigation, a more effective model would establish a federal complaints process through which American citizens and businesses can report foreign censorship enforcement to a designated federal agency,” he argues.
More broadly, Americans need to rebuild a bipartisan consensus for protecting the free-speech rights of all Americans, even ones with whom we profoundly disagree. That means opposing any American administration’s efforts to deny access to reporters, pressure social media platforms, and threaten broadcast outlets — regardless of their biases and one’s opinions about the quality of their reporting. In a free society, everyone — TV networks, newspapers, bloggers, podcasters — deserve protection to publish what they choose.
Open and fair debate doesn’t emerge by forcing every outlet to conform to a standard of balance, but from the idea that allowing myriad sources and opinions result in a better-informed public. The First Amendment demands nothing less. A side benefit, of course, is that an energized First Amendment consensus will better empower Americans to stand up to free-speech enemies from abroad.
Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.
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