The European Union in early March banned Russian state-sponsored media outlets RT and Sputnik from broadcasting, as a response to the nefarious pro-Kremlin disinformation and propaganda dominating those outlets’ coverage of Putin’s invasion of Ukraine.
The ban also requires search engines like Google to delist all search results from Sputnik and RT, and an obligation for social media companies to block their accounts—as well as deleting the sharing and reproduction of RT and Sputnik content by other users.
This marks a stark contrast to the U.S., where the First Amendment prohibits similar actions, despite the very real harms that disinformation has already caused to American democracy. In fact, without America’s free speech exceptionalism, the Jan. 6 attack on the Capitol might never have taken place.
A firehose of falsehoods and conspiracy theories originating from then-President Donald Trump, amplified on TV networks and weaponized on social media, was instrumental in fomenting, inciting, and coordinating the violence. Even as the threat became increasingly clear, authorities failed to heed the flashing warning signs due to the “difficulty in discerning constitutionally protected free speech versus actionable, credible threats of violence.”
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In a thoughtful new book, Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It, eminent University of California-Irvine law professor Richard L. Hasen proposes to counter the threat posed by “fake news” and “cheap speech” by tweaking First Amendment protections and permitting narrow, targeted restrictions of speech.
Yet there remains a compelling case for why the U.S. approach to regulating speech is preferable to even a modest and well-intentioned pivot (such as the European model) when it comes to concerted disinformation and anti-democratic propaganda.
While meant to signal strength and resoluteness, the EU’s message actually portrays its democracies (and, in particular, their citizens) as gullible simpletons who are easily manipulated by the propaganda of authoritarian states. This demonstrates a fundamental lack of trust in the very citizens from whom democratic politicians derive their power and legitimacy.
From a purely principled point of view, the idea of politicians and bureaucrats exercising centralized command over news and opinion is also fraught with danger. If this precedent were established, it would almost inevitably be used again when politicians and government officials felt threatened and succumbed to “elite panic”—when democracies, governments, and institutions demand ever more restrictions of the public’s unmediated access to instantly share and access information on social media.
Blocking ordinary European social media users from sharing and searching for online Russian propaganda, even if they wish to counter it, is worrying in and of itself. But the EU’s censorious ambitions go even further.
A prominent member of the European Parliament’s special committee on foreign interference and disinformation demanded that “online platforms and tech companies need to suspend all social accounts engaged in denying, glorifying and justifying Putin’s aggression.” This could plausibly include people on the democratic “anti-imperialist” left and the “nationalist-right” who view NATO-expansion as the casus belli. It might even include prominent University of Chicago professor of international relations John Mearsheimer, who infamously argued that the Ukraine crisis is “the West’s fault.”
American history also provides several cautionary tales. In May 1798, James Madison warned that it “is a universal truth that the loss of liberty at home is to be charged to provisions [against] danger real or pretended from abroad.” Two months later, Madison’s premonitions were confirmed, when Congress—fearing war with France—passed the Sedition Act, which made it a crime to “write, print, utter or publish… any false, scandalous and malicious writing or writings” against the government, Congress or President. The Act sparked an inquisition against critics of President John Adams’ Federalist administration, including the imprisonment of journalists and members of Congress.
During World War I, the postmaster general was given wide powers to censor the mail for publications that were “disloyal, profane, scurrilous, or abusive,” which disproportionately affected socialists and minorities. And pacifists were sentenced to lengthy prison sentences for opposing the war in speeches and pamphlets. (Incidentally, it was a socialist passing out pamphlets opposing the U.S. WWI military draft which Justice Oliver Wendell Holmes likened to “falsely shouting fire in a theater and causing a panic,” in a Supreme Court decision that was effectively overturned in 1969).
It was only with the Civil Rights Movement-era Supreme Court decision, New York Times v. Sullivan, that the First Amendment ensured that “debate on public issues should be uninhibited, robust, and wide-open” including even “unpleasantly sharp attacks on government and public officials.”
This, in turn, freed newspapers to shine a light on the gross racial injustices of Jim Crow, without having to fear crippling lawsuits from Southern government officials. This precedent was what allowed U.S. news outlets to scrutinize and criticize Trump, and also neutered his idea of “opening up libel laws” in order to gag the press, a move otherwise popular with Republican voters.
While conspiracy theories and disinformation can and have led to genuine harms, it is also true that the amount and impact of online propaganda is frequently exaggerated.
In fact, an increasing amount of evidence shows that propaganda is mostly inefficient. Several empirical studies have seriously challenged the claim that “fake news” decided the 2016 presidential election, and that Russian propaganda played a decisive part. Those most liable to stumble down the rabbit-hole of online disinformation are partisans already on board with the message (i.e. the MAGA diehards who stormed the Capitol).
Aldous Huxley, author of the dystopian novel Brave New World, expressed eloquently what social scientists have since documented: “Propaganda gives force and direction to the successive movements of popular feeling and desire; but it does not do much to create these movements. The propagandist is a man who canalizes an already existing stream. In a land where there is no water, he digs in vain.”
Huxley’s wisdom seems particularly prescient in light of Russia’s brutal invasion of Ukraine. Far from embracing Russian propaganda, the vast majority of Westerners are solidly in the Ukrainian camp. In fact, it is not an exaggeration to say that when it comes to the information war, Ukraine is winning, not least on social media where blue and yellow flags are everywhere.
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Take the Kyiv Independent, which has become a go-to source for on the ground reporting from Ukraine. Before Russia’s invasion the Kyiv Independent‘s Twitter account had 20,000 followers. At the time of this writing, that figure has increased to 1.8 million. Across the West, Ukrainian president Volodymyr Zelensky is celebrated as a hero, whereas Putin’s reputation is approaching that of Stalin.
Despite the Russian president’s long track record of malfeasance, he could previously count on a substantial number of backers in the West. However, European nationalist populists like Marine Le Pen, Matteo Salvini, and Eric Zémmour—who previously boasted of their admiration for Putin and pushed his talking points—have been forced to issue humiliating public denunciations of their former political idol’s aggression. Over in America, Fox News host Tucker Carlson also had to retreat from his previous support of Putin.
However, a ban against Russian media outlets might very well provide Putin’s global apologists with renewed rhetorical ammunition, by pushing the idea that European democracies who claim to stand for freedom and independent media are no better than Putin’s Russia, at least when they seek to censor voices with whom they disagree.
It is also true that dedicated reporters and activists have been crowdsourcing their efforts to quickly and convincingly debunk Russian disinformation, and document the Russian military’s alleged war crimes by using open-source intelligence and digital forensics.
These efforts shine a light on acts that could previously be hidden by the fog of war and swept under the carpet by state propaganda. The methods that allow a few hundred people armed with laptops to outsmart state-financed media outlets depend on unrestricted access to information, including Russian propaganda, to do their job.
In other words, the principle and practice of freedom of expression and access to information is quite literally contributing to defeating Russian state-sponsored propaganda. Accordingly, for all its harms and costs, free speech and access to information is a competitive advantage when democracies engage in information wars with authoritarians.
Lawyer Jacob Mchangama is the founder and director of Justitia, a think tank dedicated to human rights and freedom of speech.
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