The New Information Control

Autocrats have always attacked speech platforms and those who provide them, but recent actions by government officials in the United Kingdom (U.K.), France, and the European Union (EU) show that even democratic nations are now threatening to use new, autocratic control mechanisms to punish free expression.

The United States sets the gold standard for free speech rights with the First Amendment, which in part protects citizens from government repression of speech —a right that has been appropriately extended to online speech. Further, thanks to Section 230 of the 1996 Communications Decency Act, online platforms are also protected from liability regarding speech and actions of individual users.

Unfortunately, there is a growing danger of indirect “jawboning,” which occurs when government officials threaten and cajole private firms into curbing speech in certain ways. Meta’s Mark Zuckerberg recently admitted that Facebook came under enormous pressure from the Biden administration to self-censor various types of communication related to the COVID-19 pandemic and lockdowns. “I believe the government pressure was wrong, and I regret that we were not more outspoken about it,” Zuckerberg wrote in an Aug. 26 letter to Congress.

The U.S. Supreme Court’s decision in Murthy v. Missouri examined these recent government jawboning efforts. Frustratingly, the Court deferred to the U.S. Congress to address this escalating problem. While some in Congress have proposed a variety of potential solutions, none of these remedies have effectively halted jawboning—nor has anything made its way to the president’s desk.

While Americans have enjoyed these robust free-speech protections, foreign nations that lack this commitment to free speech are threatening individuals and platforms both at home and far beyond their boundaries. With even these democratic nations moving to surveil and repress speech, the United States once again must uphold the value of freedom of expression and ensure that American citizens and platforms are protected from such tactics.

“Think Before You Post”

Great Britain has recently been torn apart by riots, protests, and counter-protests in the aftermath of brutal stabbings in northern England that left several dead and dozens injured. This unrest stemmed from a large viral misinformation campaign regarding the killer’s identity that spiraled out of control as the government attempted to restore order. “Think before you post,” read a terse Aug. 8 message on the U.K. government’s official X account. It followed an earlier post from the U.K.’s Secretary of State for Science, Innovation and Technology: “The internet cannot be a haven for those looking to sow division in our communities.” British police extended their threats overseas, warning that hateful online speech anywhere could result in criminal penalties. While Britain may not provide its citizens with full free speech rights, it’s concerning that they would attempt to trample on those of American citizens from overseas.

The EU simultaneously sought to interfere with U.S. elections by dictating how U.S. social media platforms could engage with candidates. On Aug. 12, Elon Musk hosted a live interview with former President Donald Trump on Musk’s X platform. Before the interview occurred, Thierry Breton, European Commissioner for Internal Market and Services, posted an open letter to Musk, whose social media platform hosted extensive commentary on the events in England. Breton warned of the “risk of amplification of potentially harmful content”  and threatened Musk with sanctions under the EU’s Digital Services Act (which some EU representatives later walked back).

Another French Crackdown

Last week, France arrested Russian national Pavel Durov, CEO of the messaging app Telegram, charging him with a number of crimes for apparently refusing to block illegal content on a private messaging platform. The government also seemed ready to punish Durov for simply offering the public an encrypted communications platform to communicate securely without undue government influence, accusing him of failing to provide “integrity monitoring without prior declaration.”

As Durov has said himself, “I believe that any idea should be challenged… [o]therwise, we can quickly degrade into totalitarianism.” While the impact of the Durov case remains unclear, the precedent that CEOs of any large platform are subject to arrest if they do not comply with French moderation standards is alarming. This emerging trend of nations attempting to police and control speech beyond its borders could undermine free speech and erode the “marketplace of ideas” that the internet offers.

This is not the first time that the French have egregiously threatened tech company leaders. In 2001, Timothy Koogle, then-CEO of Yahoo!, was fined and threatened with arrest should he set foot in France for the “crime” of Nazi paraphernalia being sold on Yahoo!’s auction website. The CEO is subject to liability despite the fact that he likely had no personal knowledge of this third-party sale on his platform. They looked to set a precedent whereby “anything posted anywhere else in the world that was potentially offensive to French ‘national interests’ might be subject to regulation or even criminal penalties.”

Standing Strong for Free Expression

In the past, governments would bust up printing presses or commandeer broadcast stations to control expression. At least that tyranny was geographically limited in scope (and readily visible). In the modern digital age, governments seek to control online content, code, and algorithms in order to impose autocratic speech controls, even from continents away.

While there are genuine concerns about misinformation and disinformation, sweeping efforts to suppress speech under this guise serve only as a new form of autocratic information control. It is critical that the United States, as the world’s foremost proponent of free speech, remain a safe haven for free expression online, especially as other countries seek to circumvent the U.S. First Amendment by restricting the speech of Americans at home and abroad.