Freedom of Speech

America vs. The World

The Free Speech Corporate Conundrum

Amid ongoing controversy over censorship and community guidelines, Facebook has established its own "Supreme Court" to wield final authority over enforcement actions on the platform. This may seem a bit outlandish, particularly to Americans, but the underlying problem is more difficult than it might seem at a global scale given the range legal regimes that must be taken into consideration.

American Free Speech

In the United States, Freedom of Speech can be reduced to a few simple precepts. The First Amendment to the American Constitution prevents government from restricting protected speech, but imposes no such limitation on private companies.

Protected speech is very broad, including categories of speech that many will find quite uncomfortable. Recognizing that protected speech under the American Constitution exceeds what people are likely to appreciate, the Communications Decency Act shields communications platforms from liability arising from good faith censorship intended to maintain a healthy digital environment. This gives a global platform operating from the United States a free hand to limit speech on that platform, and (at least in theory, if not practice) requires censorship actions to be taken "in good faith".

Global "Freedom of Expression"

The situation becomes considerably more complicated when branching out globally. The United Nations' International Covenant on Civil and Political Rights deals specifically with freedom of expression, imposing special duties and responsibilities and expressly welcomes such restrictions as may be imposed by local law. Article 19 enumerates respect of the rights and reputations of others and protection of national security, public order, public health, or public morals as reasonable grounds for restricting expression. Article 20 goes further, requiring signatories to prohibit war propaganda and "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence".

US, UN Compromise

The United States did become signatory to the Covenant in 1992, but specifically excluded Article 20, and generally excluded any provision that would require legislation in violation of the Constitution of the United States.

Given the clear conflict between international law and the US Constitution, and given the latitude accorded to digital communications platforms in the US, the prudent option for multinational corporations operating in the US is to adopt censorship policies that are consistent with international law.

Toward Free Speech with American Characteristics

An enterprise that seeks to maximize freedom of speech in the American sense should embrace US law and limit such freedoms geographically. Adopting this posture greatly simplifies operational requirements.