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Free Speech

Suppression of Media Freedom Correlates to the Onset of the Coronavirus Pandemic, Say Panelists

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Screenshot from the webinar

November 16, 2020 — The year 2021 will be pivotal for advancing media and press freedom initiatives, due to the converging crises affecting the future of journalism.

According to panelists, there currently persists a media freedom crisis consisting of a geopolitical crisis due to the aggressiveness of authoritarian regimes, a technological crisis due to a lack of democratic securities, a democratic crisis due to polarization and disinformation, a crisis of trust due to a spreading suspicion and even hatred of the media, and an economic crisis impoverishing the quality of journalism.

It was already a challenging time for journalism before the pandemic, yet the onset of the global COVID-19 pandemic resulted in what many have labeled an infodemic, as governments around the world rushed to take control of media communications, with some limiting access to information, at a time when people needed accurate info more than ever before.

Reporters Without Borders’ 2020 World Press Freedom Index finds a clear correlation between governments’ suppression of media freedom in response to the coronavirus pandemic.

Nations increased censorship across the globe led Canada and Botswana to co-host the second annual Global Conference for Media Freedom on Monday, which featured the first Ministerial meeting of the Media Freedom Coalition, a coalition of 37 governments committed to working together to advocate for media freedom and the protection of journalists.

Pandemic become an excuse to restrict media freedoms

“In countries which already showed autocratic tendencies, COVID-19 became the perfect excuse to restrict media freedoms,” said Barbara Trionfi, executive director of the International Press Institute. According to a study conducted by IPI, “17 countries worldwide rushed to pass ‘fake news’ emergency laws over the last eight months, essentially handing autocrats new censorship tools.”

In more autocratic states new laws were written permanently into criminal or civil codes, which outlawed all forms of online misinformation, with vaguely defined provisions. Many allow prosecutors to fine journalists for publishing information deemed untrue or threatening by authorities.

“Such laws have created new possibilities for authoritarian leaders, and their law enforcement and judicial systems, to place restrictions on speech that may long outlast the pandemic,” said Trionfi.

“In Senegal and Gambia, journalists have been physically assaulted by security forces for providing information contradicting public officials,” detailed Fatou Jagne, director for Senegal and West Africa at Article 19.

Polarization and truly fake news run rampant in U.S. and Brazil

Meanwhile, in more democratic regions, like Brazil and the United States, increased polarization became a trend, as already divided populaces were divided and isolated, while fake news was permitted to run rampant online.

The year has made one thing clear: a reset in the balance of individuals as rights’ holders and the government as duty-bearers, in terms of promoting media freedom, is necessary.

In an attempt to do just that, all 37 members of the Media Freedom Coalition signed the Global Pledge on Media Freedom, committing the countries to work together on identifying and acting on violations and abuses against members of the press.

As these countries are evidently putting in the brunt of the work to promote internet freedom, much of the day-long conference was spent developing best practices to promote media literacy and freedom of the press, around the globe.

Digital literacy skills in the fight for media freedom

Countless panelists expressed the importance of media literacy skills in the fight for media freedom, asserting the development of critical thinking and media consumption skills has never been more necessary.

Urmas Reinsalu, the minister of foreign affairs of the Republic of Estonia, detailed the country’s efforts to promote internet freedom, as Estonia was one of the first countries that dealt with disinformation from Russia on a coordinated level and consistently ranks among the highest nations in terms of internet freedom.

“We have attempted to tackle the hybrid-warfare tactics coming from Russia through a more socially-holistic approach,” said Minister Reinsalu, informing audiences that media and digital literacy skills are mandated for all Estonian grade-school children.

“The country also has a trusted national news source, which actively attempts to debunk and decode falsified information,” said Reinsalu.

Disinformation and poverty

In addition to media literacy, Craig Silverman, media editor of Buzzfeed News, said it is critical to address the economic drivers to the spread of disinformation.

“We should connect the growing disinformation environment to some fundamental conditions of society, such as poverty, or a lack of ability to connect to other people,” said Silverman.

Many called for international organizations to step up. To these pleas, Irene Khan, United Nation’s Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, informed that the issue of disinformation must be rephrased as a human rights concern, in order for the UN to get involved.

Khan added that she believes governments should not privatize censorship and give corporations all the say in the matter. “This is a judicial function, not corporate or executive one,” she said.

All panelists agreed that governments have a lot of have room to promote the press and that policymakers must take action to support local news.

“It is part of democracy and it is essential,” said Silverman.

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Section 230

Section 230 Interpretation Debate Heats Up Ahead of Landmark Supreme Court Case

Panelists disagreed over the merits of Section 230’s protections and the extent to which they apply.

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Screenshot of speakers at the Federalist Society webinar

WASHINGTON, January 25, 2023 — With less than a month to go before the Supreme Court hears a case that could dramatically alter internet platform liability protections, speakers at a Federalist Society webinar on Tuesday were sharply divided over the merits and proper interpretation of Section 230 of the Communications Decency Act.

Gonzalez v. Google, which will go before the Supreme Court on Feb. 21, asks if Section 230 protects Google from liability for hosting terrorist content — and promoting that content via algorithmic recommendations.

If the Supreme Court agrees that “Section 230 does not protect targeted algorithmic recommendations, I don’t see a lot of the current social media platforms and the way they operate surviving,” said Ashkhen Kazaryan, a senior fellow at Stand Together.

Joel Thayer, president of the Digital Progress Institute, argued that the bare text of Section 230(c)(1) does not include any mention of the “immunities” often attributed to the statute, echoing an argument made by several Republican members of Congress.

“All the statute says is that we cannot treat interactive computer service providers or users — in this case, Google’s YouTube — as the publisher or speaker of a third-party post, such as a YouTube video,” Thayer said. “That is all. Warped interpretations from courts… have drastically moved away from the text of the statute to find Section 230(c)(1) as providing broad immunity to civil actions.”

Kazaryan disagreed with this claim, noting that the original co-authors of Section 230 — Sen. Ron Wyden, D-OR, and former Rep. Chris Cox, R-CA — have repeatedly said that Section 230 does provide immunity from civil liability under specific circumstances.

Wyden and Cox reiterated this point in a brief filed Thursday in support of Google, explaining that whether a platform is entitled to immunity under Section 230 relies on two prerequisite conditions. First, the platform must not be “responsible, in whole or in part, for the creation or development of” the content in question, as laid out in Section 230(f)(3). Second, the case must be seeking to treat the platform “as the publisher or speaker” of that content, per Section 230(c)(1).

The statute co-authors argued that Google satisfied these conditions and was therefore entitled to immunity, even if their recommendation algorithms made it easier for users to find and consume terrorist content. “Section 230 protects targeted recommendations to the same extent that it protects other forms of content presentation,” they wrote.

Despite the support of Wyden and Cox, Randolph May, president of the Free State Foundation, predicted that the case was “not going to be a clean victory for Google.” And in addition to the upcoming Supreme Court cases, both Congress and President Joe Biden could potentially attempt to reform or repeal Section 230 in the near future, May added.

May advocated for substantial reforms to Section 230 that would narrow online platforms’ immunity. He also proposed that a new rule should rely on a “reasonable duty of care” that would both preserve the interests of online platforms and also recognize the harms that fall under their control.

To establish a good replacement for Section 230, policymakers must determine whether there is “a difference between exercising editorial control over content on the one hand, and engaging in conduct relating to the distribution of content on the other hand… and if so, how you would treat those different differently in terms of establishing liability,” May said.

No matter the Supreme Court’s decision in Gonzalez v. Google, the discussion is already “shifting the Overton window on how we think about social media platforms,” Kazaryan said. “And we already see proposed regulation legislation on state and federal levels that addresses algorithms in many different ways and forms.”

Texas and Florida have already passed laws that would significantly limit social media platforms’ ability to moderate content, although both have been temporarily blocked pending litigation. Tech companies have asked the Supreme Court to take up the cases, arguing that the laws violate their First Amendment rights by forcing them to host certain speech.

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Section 230

Supreme Court Seeks Biden Administration’s Input on Texas and Florida Social Media Laws

The court has not yet agreed to hear the cases, but multiple justices have commented on their importance.

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Photo of Solicitor General Elizabeth Prelogar courtesy of the U.S. Department of Justice

WASHINGTON, January 24, 2023 — The Supreme Court on Monday asked for the Joe Biden administration’s input on a pair of state laws that would prevent social media platforms from moderating content based on viewpoint.

The Republican-backed laws in Texas and Florida both stem from allegations that tech companies are censoring conservative speech. The Texas law would restrict platforms with at least 50 million users from removing or demonetizing content based on “viewpoint.” The Florida law places significant restrictions on platforms’ ability to remove any content posted by members of certain groups, including politicians.

Two trade groups — NetChoice and the Computer & Communications Industry Association — jointly challenged both laws, meeting with mixed results in appeals courts. They, alongside many tech companies, argue that the law would violate platforms’ First Amendment right to decide what speech to host.

Tech companies also warn that the laws would force them to disseminate objectionable and even dangerous content. In an emergency application to block the Texas law from going into effect in May, the trade groups wrote that such content could include “Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders,”

The Supreme Court has not yet agreed to hear the cases, but multiple justices have commented on the importance of the issue.

In response to the emergency application in May, Justice Samuel Alito wrote that the case involved “issues of great importance that will plainly merit this Court’s review.” However, he disagreed with the court’s decision to block the law pending review, writing that “whether applicants are likely to succeed under existing law is quite unclear.”

Monday’s request asking Solicitor General Elizabeth Prelogar to weigh in on the cases allows the court to put off the decision for another few months.

“It is crucial that the Supreme Court ultimately resolve this matter: it would be a dangerous precedent to let government insert itself into the decisions private companies make on what material to publish or disseminate online,” CCIA President Matt Schruers said in a statement. “The First Amendment protects both the right to speak and the right not to be compelled to speak, and we should not underestimate the consequences of giving government control over online speech in a democracy.”

The Supreme Court is still scheduled to hear two other major content moderation cases next month, which will decide whether Google and Twitter can be held liable for terrorist content hosted on their respective platforms.

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Section 230

Google Defends Section 230 in Supreme Court Terror Case

‘Section 230 is critical to enabling the digital sector’s efforts to respond to extremist[s],’ said a tech industry supporter.

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Photo of ISIS supporter by HatabKhurasani from Wikipedia

WASHINGTON, January 13, 2023 – The Supreme Court could trigger a cascade of internet-altering effects that will encourage the proliferation of offensive speech and the suppression of speech and create a “litigation minefield” if it decides Google is liable for the results of terrorist attacks by entities publishing on its YouTube platform, the search engine company argued Thursday.

The high court will hear the case of an America family whose daughter Reynaldo Gonzalez was killed in an ISIS terrorist attack in Paris in 2015. The family sued Google under the AntiTerrorism Act for the death, alleging YouTube participated as a publisher of ISIS recruitment videos when it hosted them and its algorithm shared them on the video platform.

But in a brief to the court on Thursday, Google said it is not liable for the content published by third parties on its website according to Section 230 of the Communications Decency Act, and that deciding otherwise would effectively gut platform protection provision and “upend the internet.”

Denying the provision’s protections for platforms “could have devastating spillover effects,” Google argued in the brief. “Websites like Google and Etsy depend on algorithms to sift through mountains of user-created content and display content likely relevant to each user. If plaintiffs could evade Section 230(c)(1) by targeting how websites sort content or trying to hold users liable for liking or sharing articles, the internet would devolve into a disorganized mess and a litigation minefield.”

It would also “perversely encourage both wide-ranging suppression of speech and the proliferation of more offensive speech,” it added in the brief. “Sites with the resources to take down objectionable content could become beholden to heckler’s vetoes, removing anything anyone found objectionable.

“Other sites, by contrast, could take the see-no-evil approach, disabling all filtering to avoid any inference of constructive knowledge of third-party content,” Google added. “Still other sites could vanish altogether.”

Google rejected the argument that recommendations by its algorithms conveys an “implicit message,” arguing that in such a world, “any organized display [as algorithms do] of content ‘implicitly’ recommends that content and could be actionable.”

The Supreme Court is also hearing a similar case simultaneously in Twitter v. Taamneh.

The Section 230 scrutiny has loomed large since former President Donald Trump was banned from social media platforms for allegedly inciting the Capitol Hill riots in January 2021. Trump and conservatives called for rules limited that protection in light of the suspensions and bans, while the Democrats have not shied away from introducing legislation limited the provision if certain content continued to flourish on those platforms.

Supreme Court Justice Clarence Thomas early last year issued a statement calling for a reexamination of tech platform immunity protections following a Texas Supreme Court decision that said Facebook was shielded from liability in a trafficking case.

Meanwhile, startups and internet associations have argued for the preservation of the provision.

“These cases underscore how important it is that digital services have the resources and the legal certainty to deal with dangerous content online,” Matt Schruers, president of the Computer and Communications Industry Association, said in a statement when the Supreme Court decided in October to hear the Gonzalez case.

“Section 230 is critical to enabling the digital sector’s efforts to respond to extremist and violent rhetoric online,” he added, “and these cases illustrate why it is essential that those efforts continue.”

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