Foreign governments threaten Americans' speech rights, lawmakers, civil liberties groups warn

World Health Organization Pandemic Agreement less restrictive than earlier drafts but still lacks "adequate language protecting national sovereignty," group warns.

Published: May 22, 2024 11:00pm

Americans who anticipate the Supreme Court will prevent the federal government from pressuring or collaborating with social media companies to remove purported misinformation shouldn't get too excited even if that ruling comes to pass when the justices' term ends next month.

Foreign governments from Geneva to Canberra are taking actions that may inhibit or even prevent what Americans can see and say online, though not without pushback from members of Congress, civil liberties groups and a mercurial billionaire.

This goes further than Brazil's censorship of social media within its territory alone, the subject of House Judiciary Committee reports this spring.

In a May 17 letter to Secretary of State Antony Blinken, House Judiciary Chairman Jim Jordan and Administrative State Subcommittee Chairman Thomas Massie cited reports that State was considering joining the World Health Organization Pandemic Agreement.

The United Nations agreement's first six drafts required parties to "identify," "combat," "counteract," "tackle" and  "prevent" misinformation, disinformation and "false news" related to pandemics and treatments, while the most recent draft swaps those for a new preamble reference to preventing "misinformation, disinformation and stigmatization," the Ohio and Kentucky Republicans, respectively, said.

Following these provisions "may contravene the First Amendment," they wrote, asking Blinken to produce documents and communications among State Department personnel, between them and WHO personnel, and between them and "other third parties" pertaining to the WHO agreement and amendments to the International Health Regulations.

The documents are already responsive to a 13-month-old letter from Jordan requesting Blinken produce records about State's "interactions with social media companies and third-party groups regarding content moderation and the identification of so-called 'misinformation,'" the May 17 letter says.

Jordan and Massie said this is more troubling in light of State's Global Engagement Center working with the Department of Homeland Security-conceived Election Integrity Partnership, "which targeted Americans’ accounts and posts for censorship by social media companies" through a mass-reporting system with a self-identified 35% success rate in the 2020 election.

The Poynter Institute purported to debunk such claims the same day by citing an April draft's pledge that each signatory will show "full respect for the dignity, human rights and fundamental freedoms of persons" as they implement the agreement. The World Health Assembly will nail down the terms starting next week.

Partly funded by liberal megadonor George Soros, Poynter owns a fact-checking site that called the lab-leak theory of COVID-19 origin a "pants-on-fire" lie and its president helped award Pulitzer Prizes for reporting that promoted the Russia collusion hoax. 

It's not clear why Poynter, which partners with Meta to suppress such claims, waited until May 17 to challenge them, given that its primary examples of misinformation about the agreement were Tucker Carlson videos from January.

Alliance Defending Freedom International said its Geneva and D.C legal teams have been raising alarms for months about "the potential human rights implications" of the agreement, such as a previous draft requiring "management" of so-called "infodemics" – the same proposal made by Centers for Disease Control and Prevention scientists in a recent Lancet paper.

While the latest proposal is missing "vague mandates for parties to 'prevent' misinformation and disinformation," it also lacks "adequate language protecting national sovereignty," ADF International said.

"The United States should never promote censorship and should be the strongest advocate for free speech around the world," its legal counsel, Sean Nelson, said in praising the letter from Jordan and Massie.

Australia's "eSafety Commissioner" Julie Inman Grant united civil libertarians by ordering Elon Musk's social media platform X to "globally" remove posts with a video showing a Muslim man stabbing a Christian bishop during a church service last month or pay $500,000 in fines daily.

An Australian court initially forced X to comply with the global order by Grant, whom Musk calls “Australian censorship commissar," meaning no one in the world could see the video on X, the Associated Press reported April 22.

But the court refused to extend the injunction again at a May 13 hearing while X's challenge proceeds, according to The Guardian. Grant's barrister accused X of hypocrisy for "routinely" removing content worldwide of its own accord while resisting Australia's order.

The Foundation for Individual Rights and Expression sought to intervene in the Australian case, relaying several other incidents of foreign governments using takedown orders to "erase history and silence dissent not only within its own country, but around the world."

As recently as 2020, China did this to human rights activists who hosted Zoom "meetings commemorating the anniversary of the Tiananmen Square massacre" and to "speech outside Hong Kong by non-residents" through a national security law that vaguely bans “separatism and subversion," Director of Public Advocacy Aaron Terr wrote.

If a "respected Western country like Australia compels X Corp. to restrict content globally, there is a real risk that it may provide validation to authoritarian governments/regimes in attempting to do the same," undermining "Australia’s standing to oppose similar actions by other Governments," he said.

The Electronic Frontier Foundation also sought to intervene, telling the court that Grant's order not only violates Americans' First Amendment rights but also Section 230 of the Communications Decency Act, "which has been crucial for the growth of the Internet as a platform for speech" globally.

"A global takedown order establishes a precedent that courts of other jurisdictions can rely on to justify adopting the same measure," since "judges often use international precedents to develop consistency," Legal Director Corrine McSherry wrote. 

It creates a "real risk" of a "fragmented and splintered internet" and a "race to the bottom" in which "the most restrictive rules of one jurisdiction dictate whether online content can be accessed," and gives cover to "authoritarian governments, which do not fully value the rights to freedom of speech and access to information," she said.

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