The European Union at the beginning of March bans Russian state-sponsored media electrical outlets RT and Sputnik from broadcastingin response to the nefarious pro-Kremlin disinformation and propaganda that dominates these outlets’ coverage of Putin’s invasion of Ukraine.
The ban also requires search engines like Google to remove all search results from Sputnik and RT, and a requirement for social media companies to block their accounts, as well as remove the sharing and reproduction of RT content. and Sputnik by other users.
This contrasts sharply with the United States, where the First Amendment prohibits similar actions, despite the very real harm misinformation has already done to American democracy. In fact, without America exceptionalism of freedom of expressionthe January 6 attack on the Capitol might never have happened.
A firehose of lies and conspiracy theories stemming from then-President Donald Trump, amplified on TV networks and weaponized on social media, was instrumental fomenting, inciting and coordinating violence. Even as the threat grew clearer and clearer, the authorities failed to heed flashing warning signs because of the “difficulty in discerning constitutionally protected free speech from credible and executable threats of violence.”
in a thoughtful way new book, Cheap talk: how misinformation is poisoning our politics and how to fix itProminent University of California Irvine law professor Richard L. Hasen proposes countering the threat posed by “fake news” and “cheap speech” by adjusting First Amendment protections and allowing narrow and targeted expression restrictions.
Yet there remains a compelling argument as to why the American approach to speech regulation is preferable to even a modest and well-intentioned pivot (like the European model) to concerted disinformation and anti-democratic propaganda.
Although intended to signal strength and determination, 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 control over information and opinion is also fraught with dangers. If this precedent were set, it would almost inevitably be used again when politicians and government officials felt threatened and succumbed to “elite panic“- when democracies, governments and institutions increasingly demand restrictions on unmediated public access to instantly share and access information on social networks.
Preventing ordinary European social media users from sharing and searching for Russian propaganda online, even if they wish to counter it, is worrying in itself. But the EU’s censorship ambitions go even further.
A prominent member of the European Parliament’s special committee on foreign interference and disinformation require that “Online platforms and tech companies should suspend all social accounts engaged in denying, glorifying and justifying Putin’s aggression.” This could presumably include people on the “anti-imperialist” democratic left and the “nationalist right” who see NATO expansion as the casus belli. It could even include the eminent University of Chicago international relations professor, John Mearsheimer, who, infamously, argued that the Ukrainian 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 deprivation of liberty at home must be imputed to the provisions [against] real or alleged danger from abroad. Two months later, Madison’s premonitions were confirmed, when Congress, fearing war with France, passed the Sedition Act, which made it an offense to “write, print, pronounce, or publish…any false, scandalous, and malicious writing or writing” against the government, Congress, or the president. The law triggered investigation against criticism of the Federalist administration of President John Adams, including the imprisonment of journalists and members of Congress.
During World War I, the Postmaster General was given broad powers to censor mail for “disloyal, profane, libelous or abusive” publications, which disproportionately affected socialists and minorities. And the pacifists were sentenced to long prison terms for opposing the war in speeches and pamphlets. (Incidentally, he was a socialist who distributed pamphlets opposing the American World War I military plan that Judge Oliver Wendell Holmes compared “falsely shouting fire in a theater and causing panic”, in a Supreme Court decision that was actually overthrown in 1969).
It was only with the ruling of the Supreme Court of the era of the civil rights movement, New York Times vs. Sullivanthat the First Amendment guaranteed that “debate on public matters should be unfettered, robust, and open”, including even “uncomfortably sharp attacks on government and officials”.
This, in turn, allowed newspapers to shed light on Jim Crow’s gross racial injustices, without having to fear crippling lawsuits from Southern government officials. This precedent is what allowed the American media to scrutinize and criticize Trump, and also neutralized his idea of ”open defamation lawsin order to gag the press, a gesture otherwise popular with Republican voters.
While conspiracy theories and misinformation can and have caused real harm, it is also true that the amount and impact of propaganda online is often exaggerated.
Indeed, an increasing amount of evidence shows that propaganda is generally ineffective. Many empirical studies seriously challenged the claim that “fake news” decided the 2016 presidential election, and that Russian propaganda played a decisive role. Most likely to fall down the rabbit hole of online misinformation are supporters already on board with the message (i.e. the MAGA diehards who have stormed the Capitol).
Aldous Huxley, author of the dystopian novel The best of worlds, eloquently expressed what social scientists have since documented: “Propaganda gives strength and direction to successive movements of popular feeling and desire; but that doesn’t do much to create those moves. The propagandist is a man who channels an already existing current. In a country 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 firmly in the Ukrainian camp. In fact, it is no exaggeration to say that when it comes to information warfare, Ukraine is winnerespecially on social networks where blue and yellow flags are everywhere.
Take the Kyiv Independent, which has become a go-to source for on-the-ground reporting from Ukraine. Before the Russian invasion, the Kyiv IndependentThe Twitter account of had 20,000 subscribers. As of this writing, that number has grown to 1.8 million. Throughout the West, Ukrainian President Volodymyr Zelensky is celebrated as a hero, while Putin’s reputation approaches that of Stalin.
Despite the Russian president’s long history of malfeasance, he could previously count on a significant number of supporters 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 –were forced to publish humiliating public denunciations of the aggression of their former political idol. In America, Fox News host Tucker Carlson also had to step back of his previous support for Putin.
However, a Russian media ban could very well provide Putin’s global apologists with renewed rhetorical ammunition, pushing the idea that European democracies that claim to stand for freedom and independent media are no better than Putin’s Russia, from less so when they seek to censor voices they disagree with.
It is also true that dedicated journalists and activists have put their efforts into quickly and convincingly debunking Russian disinformation, and document the russian army alleged war crimes using open source intelligence and digital forensics.
These efforts bring to light acts that could previously have been hidden by the fog of war and swept under the rug by state propaganda. The methods that allow a few hundred people armed with laptops to outsmart the state-funded media rely on unlimited 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 literally helps to derail Russian state-sponsored propaganda. As a result, for all its drawbacks and costs, freedom of expression 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 expression.