How to Keep Online Speech Free

Originally published in the Wall Street Journal,

Mark Zuckerberg testified recently that he expects Facebook will soon employ artificial intelligence to identify and delete “hate speech.” Yet he struggled to define the term. He acknowledged last year that standards for acceptable speech are subjective: “Our community spans many countries and cultures, and the norms are different in each region,” making universal standards “less feasible.” The CEO concluded his company needs “to evolve toward a system of more local governance.”

Silicon Valley’s recent acquiescence to political censorship contrasts with the early days of social media, when the platforms were expected to herald global freedom.

In January 2010, Secretary of State Hillary Clinton urged that “censorship should not be in any way accepted by any company from anywhere. And in America, American companies need to make a principled stand.” A few months later, Google announced it would refuse the Chinese government’s requests to take down information. The company redirected visitors of its China homepage to the Hong Kong one. This bravery didn’t last long. The New York Times reported last month that the Chinese government had “successfully persuaded Google to pull down content that had been available around the globe,” including corruption accusations by dissidents.

Online censorship extends beyond China and other authoritarian governments. Andrus Ansip, vice president of the European Commission, recently issued guidelines on “illegal content online,” demanding that platforms remove “terrorist propaganda” within an hour of notification. In January, Germany implemented NetzDG, which imposes prison sentences and fines of up to €50 million for failing to remove hate speech and other illegal content quickly.

America’s commitment to free speech is exceptional. The First Amendment generally protects hate speech, fake news and even terrorist propaganda. Section 230 of the Communications Decency Act gives online platforms near total immunity from legal liability for user-generated content, with the recently added exclusion of sex trafficking. But censorship abroad still can restrict speech at home. Last year David Kaye, the United Nations special rapporteur on free speech, wrote that because “major companies operate at scale,” the European regulations risk seeping “into global corporate practices with an impact on the uses of social media and search worldwide.”

The U.S. should respond by opposing foreign restrictions and limiting their domestic effects. On occasion, the feds take proactive measures like imposing sanctions on companies that censor at the Iranian government’s request. But the government rarely addresses Europe, even with soft measures. Freedom House’s “Freedom Across the Net” ranking—funded by the State Department—lists all Western European countries as completely free, despite their increasingly harsh laws. They are far less draconian than China or Iran, but that’s a low bar.

The U.S. can’t end all foreign censorship, but it should never enable it. In 2000 France finedYahoo for not removing Nazi memorabilia from a now-defunct auction site. A U.S. federal court held that enforcing the judgment was unconstitutional, but the ruling was reversed on procedural grounds. While not implicating political speech, last year Canada ordered Google to delist U.S. results of a site which allegedly misappropriated trade secrets. A U.S. district court blocked the order as violating Section 230, but the law remains murky.

Congress should clarify that courts and regulators may not enforce any law or judgment against constitutionally protected speech. The Internet Association, which represents tech platforms including Google and Facebook, advocates blocking enforcement of all global content injunctions to prevent “situations where countries with weaker standards on free speech and due process can impose extraterritorial control on the activities of U.S. citizens and companies.”

Friendly nations often recognize and enforce foreign judgments, on matters like intellectual property. Thus, limiting protection to First Amendment concerns would prevent it from becoming a smokescreen to undermine Europe’s antitrust, privacy or copyright laws.

In his “Four Freedoms” address, Franklin D. Roosevelt said that “freedom of speech and expression—everywhere in the world” was not merely a “vision of a distant millennium.” Social media has the potential to achieve this ideal. But if global internet platforms continue to appease foreign censors with no pushback from the U.S., expect speech to become more restricted across the globe.

Mr. Epstein is an antitrust attorney and freelance writer.


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