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Freedom of speech “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.”
– United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943) (opinion of the court by Judge Learned Hand), aff’d, 326 U.S. 1 (1945).
On October 26, Twitter decided to ban “advertising from all accounts owned by Russia Today (RT) and Sputnik,” two Russian state-owned media outlets. Twitter was reacting to an assessment by the United States intelligence community that RT and Sputnik interfered with the U.S. election on behalf of the Russian government, as well as Twitter’s (non-public) internal research. Many may be tempted to celebrate Twitter’s decision as a move to protect democracy from an authoritarian state. We fear it’s just the opposite.
There seems to be little question that the Russian government uses Russia Today and Sputnik to stir up division and influence foreign politics, including the last U.S. presidential election. But it would be ironic if our response to that effort was to step back from defending freedom of expression.
For example, the First Amendment and Article 19 of the Universal Declaration of Human Rights forbid a state actor from doing what Twitter has done. A ban on all advertising from a particular entity, knocking out everything from articles covering a cheese rolling festival to coverage of an election, would be an over-broad prior restraint on speech.
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Of course Twitter is not a state actor, and has the right to moderate its platform. But it should use this right wisely. For decades platforms have chosen to be as content-neutral as possible, and the paradigm of a content-neutral platform has become increasingly valuable as private social media entities have emerged as the most common means of online communication. (Remember when Twitter said it was in the “the free speech wing of the free speech party”?)
Private censorship is contagious, and we don’t want it spreading into a global pandemic.
But now social media companies are increasingly abandoning that approach, with dangerous consequences. For example, now that Twitter has punished these state-owned media for their actions, it’s harder to resist calls by other countries to do the same. State-owned media is extremely common throughout the world—consider the BBC, France Télévisions or Al Jazeera—and often write about election. They may be fairly neutral or deeply biased, but they are still a type of news media. For example, other countries may not like the effects of U.S. government-sponsored media like Voice of America, Radio Marti or Radio Free Europe, and demand similar treatment. (Indeed, Russia’s Foreign Ministry has already said an unspecified “response will follow.”) Private censorship is contagious, and we don’t want it spreading into a global pandemic.
The promotion ban is also a very blunt instrument. To be fair, Twitter didn’t go so far as to ban the account, limit your ability to retweet Russia Today, or—in a worst case scenario—prohibit users from linking to Russian state media in their own posts. Limiting the policy to paid promotion limits the damage. But as social media sites make reach more and more dependent on paid promotion, this distinction makes less and less of a difference, and still impacts the reader’s free expression right to receive information.
What is worse, the ban is likely to lead to further pressure on anonymous speech. The ban’s effectiveness relies on the notion that Twitter will be better at identifying accounts controlled by Russia than Russia will be at opening disguised accounts to promote its content. To make it really effective, Twitter may have to adopt new policies to identify and attribute anonymous accounts, undermining both speech and user privacy. Given the problems with attribution, Twitter will likely face calls to ban anyone from promoting a link to suspected Russian government content.
EFF, along with many other civil society groups, drafted the Manila Principles to create a a framework to help ensure intermediaries do not improperly inhibit free expression, either voluntarily or as a result of a legal order. Under those principles, public and governmental pressure should not force Twitter to restrict content; only a court order should be able to do that. Yet that’s exactly what happened here, with no apparent right of appeal.
Indeed, Twitter has gone far beyond what a U.S. court would order in the first place. For example, U.S. electoral rules do not support a total ban on paid promotions even if the promoter violated the laws governing foreign nationals’ participation in U.S. elections. Under FEC rules, foreigners may fund ads if they are not “election influencing” in the sense that they do not mention candidates, political offices, political parties, incumbent federal officeholders or any past or future election. But U.S. law “does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues.”
We can understand why Twitter might seek to disassociate itself from profiting off of Russia’s campaigns to disrupt open societies, and appreciate the irony of Twitter’s plan to redirect the revenue it has accrued to projects designed to support external research on the problem. But there are better, more targeted ways to fight improper interference. For example, Twitter and other social media sites can still take action against fraudulent accounts, and other more shadowy aspects of the Russian information operations. For accounts like Sputnik and RT, who are openly funded by and work closely with the Russian government, social media companies can also take steps to clearly signal to the user the origin of the post its connection to a government.
But by simply removing particular media outlets from the opportunities to promote themselves that other outlets enjoy, Twitter slides further down the slippery slope toward a world where the social media platforms on which we all rely abandon any pretense of neutrality. Neutral platforms with strong policies against content censorship, especially those with worldwide reach, are vital for freedom of expression, and necessary for a free and open society.
This story originally appeared on the EFF’s blog.
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