By Allison Lofgren, William & Mary Law School ’23 (see full bio at end of article).
On Friday, January 28, 2022, Professor Nancy Combs and the Human Security Law Center at William & Mary Law School hosted a Symposium on Media Freedom & Human Rights. The second panel addressed comparative free speech issues and was moderated by Professor Timothy Zick, who is the John Marshall Professor of Government and Citizenship and the William H. Cabell Research Professor of Law at William & Mary Law School. He is one of the foremost experts on American freedom of speech law whose views routinely appear in the popular press, and he has published several dozen highly-regarded books and law review articles on the First Amendment.
The three panelists–Dr. Mart Susi, a Professor at Tallinn University in Estonia; Professor Ronald J. Krotoszynski, Jr. from the University of Alabama School of Law; and Michael R. Sherwin, a lawyer at Kobre & Kim–each discussed their perspective on the most pressing free speech issues in their respective areas of expertise. Throughout the panel, they primarily focused on various limitations on free speech in Europe and the United States.
DR. MART SUSI
Dr. Mart Susi is a Professor of Human Rights Law at Tallinn University. Additionally, he is the Chair of the Global Digital Human Rights Network (GDHRNet), a European Union-funded network of around 100 researchers who are “exploring the theoretical and practical challenges posed by the online context to the protection of human rights.”[1] He described several recent comparative studies by the GDRDNet, including an exploration of COVID-19 passports from a fundamental rights aspect and a study about networks “cancelling” politicians.[2] The latter study, which was prompted by Twitter’s blocking of former President Trump, concluded that most European countries do not have any laws or regulations that specifically cover restrictions by social networks against public actors. As a result, social media companies have almost unlimited discretion to monitor and censor content.
Dr. Susi proceeded to evaluate private censorship conducted by social media platforms and explained the two dominant views: (1) platforms are well positioned to assess user content, and (2) states should never delegate censorship obligations to private entities. According to Dr. Susi, one of the main differences between U.S. and European approaches lies in how freedom of expression and a right to privacy are valued in the hierarchy of fundamental rights. He explained that in Europe, networks have greater liability for content,[3] whereas in the United States, it is more common to view social media as a safe harbor (although that view has been gradually challenged).
Dr. Susi concluded his introductory remarks with a short discussion of fake news and hate speech. He pointed specifically to the broad trend toward the criminalization of hate speech in Europe, citing the fact that online platforms are often required to speedily take down illegal content. In Germany, for example, online platforms have forty-eight hours to remove hate speech and criminal speech. He also explained that Estonia is the only country in the European Union that has not per se criminalized hate speech.[4] In Estonia, hate speech is only criminalized if it creates a tangible negative result, such as clearly placing an individual in imminent danger. Dr. Susi characterized the online platforms in the rest of Europe as “gatekeepers” for hate speech, and briefly discussed the potential ramifications of such actions on free speech.
Finally, he spoke about a key area of his research, namely the relativity of rights. He explained that there are absolute and relative human rights, and it is generally assumed that relative rights (such as freedom of speech and the right to privacy) are treated similarly. However, this assumption doesn’t necessarily hold true online, because it is possible that online portals value freedom of speech more, while offline portals value privacy more. Ultimately, the constant, evolving tension between these two relative rights can help explain the varying approaches taken by different countries to address hate speech.
RONALD J. KROTOSZYNSKI
Professor Krotoszynski is the John S. Stone Chairholder of Law, Director of Faculty Research, and Professor at the University of Alabama School of Law. He specializes in administrative, constitutional, first amendment, and telecommunications law. He has authored The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech (2009), Privacy Revisited: A Global Perspective on the Right to Be Left Alone (2016), and The Disappearing First Amendment (2019).
During the panel discussion, Professor Krotoszynski focused his comments on the intersection between transborder speech, the media, and human rights. He took a U.S.-focused approach and looked at the ability of journalists in the United States to investigate and report on humanitarian issues at home and abroad. The First Amendment of the U.S. Constitution protects various rights, including freedom of speech and freedom of the press, but Professor Krotoszynski asserted that in reality, these protections are often weakened in the aforementioned intersection, particularly when journalists are investigating and reporting from abroad.[5]
The Supreme Court has repeatedly held that the Constitution follows the flag, but Professor Krotoszynski characterized it as a “junior varsity version that follows U.S. citizens abroad”[6] and only weakly protects activities such as reporting and investigation. He explained that two significant factors are that the Supreme Court of the United States (1) has not substantially addressed freedom of the press over the past few decades, and (2) has fallen short in its protection of freedom of speech.[7] Professor Krotoszynski identified “abject judicial deference” as a core underlying problem to the weak judicial protection of transborder free speech and explained that Federal judges are generally reluctant to make determinations in the realms of national security and foreign affairs, which now includes control over the borders.[8]
This deference is extremely problematic for journalists, in particular. For example, when U.S. journalists have crossed U.S. borders or arrive at ports of entry, CBP agents can seize their electronic devices, demand the passwords, search through the devices, and can copy and share the journalists’ files, including interviews with confidential sources.[9] Professor Krotoszynski asserted that this has a chilling effect on journalists, but there haven’t been any federal cases that have substantially limited the ability of CBP to conduct pretextual searches of journalists’ electronics at the border.
Even internally, the strength of the First Amendment is weak in specific contexts, particularly in matters concerning immigration, naturalization, and protests. For example, he referenced a “standard police tactic” that has been used during recent protests and explained that police officers have executed mass arrests that include (clearly marked) members of the press and have charged the individuals with unlawful assembly, breach of peace, or not obeying police orders. Although such charges against the members of the press are generally dropped later, their forced inability to cover the protests results in an infringement upon their constitutionally protected First Amendment rights.
In sum, Professor Krotoszynski warned against such weakening of First Amendment protections for journalists, particularly given the centrality of a free press to the operation of a democratic polity.
MICHAEL SHERWIN
Before Joining Kobre & Kim, Michael Sherwin was the Acting U.S. Attorney for the District of Columbia where, among other notable cases, he served as the chief prosecutor for all criminal cases relating to the January 6, 2021, attack on the U.S. Capitol. Before his detail to Washington, Sherwin served as an Assistant U.S. Attorney in the Southern District of Florida, for twelve years––with roles that included Chief of the Economic Crimes Section and work in the National Security Section.
Mr. Sherwin, drawing on his unique background as a federal prosecutor, primarily discussed the indeterminate line between protected free speech and hate speech that rises to a level that triggers the criminalization of such speech. In the United States, hate speech is generally protected by the First Amendment. However, the Supreme Court has carved out a very limited exception, which says that “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.”[10]
Using his work as the chief prosecutor for the January 6 attack on the Capitol as an apt example, Mr. Sherwin explained the difficulties his office faced while preparing to bring charges against the participants, particularly the militia groups. Within the first 10 weeks, his office charged 425 people, 90% of whom were charged with assaulting police officers or breaking and entering the Capitol. The remaining 5-10% faced specific militia indictments.
Because many of the indicted militia members had posted violent rhetoric about the attack on social media, his office had probable cause to obtain warrants into their social media accounts. When the government investigated these accounts, it gathered a significant amount of information that supported bringing seditious conspiracy charges under 18 U.S.C. § 2384 against many of the indicted militia members.
18 U.S. Code § 2384 – Seditious Conspiracy
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
Historically, the United States had seen a number of cases in which militia members who were charged with conspiracy have successfully raised First Amendment defenses. For example, in 2012, a federal judge in Michigan dismissed seditious conspiracy charges against several members of the far-right Hutaree militia group. [11] The three men (and several others) were arrested and charged with planning to kill law enforcement officials. As evidence, the prosecution had used audio and video recordings of the members discussing killing law enforcement and waging war against the government. However, defense counsel argued that their conversations were protected by the First Amendment because they did not actually take action. This is known as a “dry conspiracy.”[12]
Because of the likelihood of First Amendment defenses being raised, the high bar of proof for seditious conspiracy, and the rarity of such a charge, Mr. Sherwin recognized the importance of investigating and charging individuals for the January 6 events extremely judiciously. As a result, he only authorized charges when there were “overt acts divorced from violent rhetoric”[13] because the defendants couldn’t then argue that their posts were simply rhetoric and covered by the First Amendment.
In contrast with the Hutaree militia group example, where the prosecutors only had evidence of the militia members discussing a plot, many of the militia members who participated in the January 6, 2021, attack on the U.S. Capitol were photographed or recorded breaching the Capitol. Mr. Sherwin’s office also obtained evidence of advance planning from the individuals’ social media accounts, and it found a significant amount of both advance and real-time communications that detailed specific violent acts that the individuals were going to do at the Capitol. Given such evidence, these individuals were charged with “conspiring to obstruct an official proceeding and conspiring to prevent an officer of the United States from discharging a duty.”[14]
With his insight into the process of prosecuting individuals for seditious conspiracy, Mr. Sherwin shed light upon how the government – at least, the U.S. Attorney’s Office for the District of Columbia – deals with the fine lines between free speech, criminalized hate speech, and criminalized seditious speech.
CONCLUSION
These three panelists each used their diverse experiences as an international human rights lawyer, an American constitutional law professor, and a former federal prosecutor, respectively, to evaluate how countries treat the gray area in which free speech and hate speech converge. In most of Europe, hate speech is criminalized, whereas in Estonia, hate speech is only deemed illegal when it has a tangible, negative result. In the United States, hate speech is generally protected by the First Amendment. However, as Professor Krotoszynski discussed, the protection of freedom of speech, particularly for journalists, is sometimes weakened by actions taken by police officers who arrest journalists at protests, for example, and by actions taken by CBP officers who seize and search journalists’ electronics at the border. Mr. Sherwin then explained the process for determining if an individual has transgressed the demarcating line between permissible hate speech and criminalized hate speech.
Although it has historically been difficult to deal with the issue of hate speech, social media has added another layer of complication. As Dr. Susi discussed, some countries in Europe that have criminalized hate speech have also required social media networks to act as “gatekeepers” for such speech. In the United States, most of what could be considered hate speech is protected by the First Amendment and therefore legal. However, as private entities, social media companies can nevertheless act as gatekeepers and can limit an individual’s ability to post (legal) hate speech. Viewing the issue of hate speech through the lens proposed by Dr. Susi can help explain the varying approaches taken by different countries, but the difficulty of finding the most effective balance between protecting the right of free speech and protecting others who could be harmed by such speech will likely persist.
About the Panelists
Dr. Mart Susi leads the law program at Tallinn University and serves as Associate Professor of Human Rights Law. Dr. Susi is the founding member of the Digital Human Rights Network and serves on East West Studies Journal and the East European Yearbook of Human Rights as editor-in-chief. He works with Tallinn University’s International Research Center of Fundamental Rights at the Association of Human Rights Institutes and is an expert with the Digital Freedom Fund.
Ronald J. Krotoszynski, Jr., is the John S. Stone Chairholder of Law, Director of Faculty Research, and Professor at the University of Alabama School of Law. He specializes in administrative, constitutional, first amendment, and telecommunications law. He has authored The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech (2009), Privacy Revisited: A Global Perspective on the Right to Be Left Alone (2016), and The Disappearing First Amendment (2019).
Michael R. Sherwin is a Lawyer at the international law firm Kobre & Kim. Before Joining Kobre & Kim, Sherwin was the Acting U.S. Attorney for the District of Columbia where, among other notable cases, he served as the chief prosecutor for all criminal cases relating to the January 6, 2021, attack on the U.S. Capitol. Before his detail to Washington, Sherwin served as an Assistant U.S. Attorney in the Southern District of Florida, for twelve years–with roles that included Chief of the Economic Crimes Section and work in the National Security Section.
About the Moderator
Professor Timothy Zick is the John Marshall Professor of Government and Citizenship and the William H. Cabell Research Professor of Law at William & Mary Law School. He is one of the foremost experts on American freedom of speech law whose views routinely appear in the popular press. Professor Zick published several dozen highly regarded books and law review articles on the First Amendment. His most recent books are The First Amendment in the Trump Era (2019) and Managed Dissent: The Law of Public Protest (forthcoming).
About the Human Security Law Center
The Human Security Law Center (HSLC) at William & Mary Law School centers on human rights, national security and international criminal justice and law. Its purpose is to provide students with an understanding of and appreciation for national security and human rights issues, particularly through the interplay between national defense and the protection of civil rights in both the domestic and global spheres. The Director of the HSLC is Ernest W. Goodrich Professor of Law Nancy Combs.
A Note about World Press Freedom Day
The Comparative Jurist published this article on World Press Freedom Day, which celebrates its twenty-ninth anniversary on May 3, 2022. Initially declared by the United Nations General Assembly in 1993,[15] the day honors the anniversary of the Windhoek Declaration, a statement of press freedom principles drafted by African journalists at a UNESCO seminar in Windhoek, Namibia in 1991.[16] Each year, the day highlights the significance of the freedom of the press, reminds governments of their duty to respect and uphold the right to freedom of expression, and commemorates the lives of journalists who have risked or continue to risk their lives to report the truth. Together, UNESCO and the Republic of Uruguay are hosting this year’s World Press Freedom Day Global Conference on May 2-5, 2022.[17] This year’s theme, Journalism Under Digital Siege, highlights the “digital era’s impact on freedom of expression, the safety of journalists, and access to information and privacy.”[18]
About the Author
Allison Lofgren is a 2L at William & Mary Law School and a Senior Editor of the Comparative Jurist. She is also a staff editor of the William & Mary Bill of Rights Journal and a member of the Women’s Law Society. Allison graduated from the Walsh School of Foreign Service at Georgetown University, where she obtained a bachelor’s degree in International Politics and a minor in French. During law school, she has interned with the Supreme Court of Virginia, Magistrate Judge Robert J. Krask in the U.S. District Court for the Eastern District of Virginia, and Columbia University Professor Jenik Radon in his capacity as an advisor to the Foreign Ministry of Estonia. This coming summer (2022), she will be working as a Summer Associate in the Washington D.C. office of Orrick, Herrington & Sutcliffe LLP. She is interested in the intersection between international trade, international investment, and national security.
[1] Global Digital Human Rights Network, https://gdhrnet.eu/overview/welcome-message/ (last visited Mar. 6, 2022).
[2] Global Digital Human Rights Network: Working Paper Series, https://gdhrnet.eu/publications/working-paper-series/ (last visited Mar. 6, 2022).
[3] For a supporting view, see Stefan Kulk & Frederik Zuiderveen Borgesius, Privacy, Freedom of Expression, and the Right to be Forgotten in Europe, in Cambridge Handbook of Consumer Privacy (Jules Polonetsky et al eds., 2018). (“In principle, the two rights have equal weight in Europe – which right prevails depends on the circumstances of a case.”)
[4] Sten Hankewitz, The European Commission Calls on Estonia to Criminalize Hate Speech, Estonian world (Oct. 31, 2020), https://estonianworld.com/security/the-european-commission-calls-on-estonia-to-criminalise-hate-speech/.
[5] U.S. Const. amend. I.
[6] Ronald J. Krotoszynski, Jr., Panel Event at the William & Mary Law School Human Security Law Center Media Freedom & Human Rights Symposium: Comparative Free Speech Issues (Jan. 28, 2022).
[7] Professor Krotoszynski cited two law review articles for this proposition that the Supreme Court of the United States is, at worst, hostile to the press. See RonNell Andersen Jones, What the Supreme Court Thinks of the Press and Why it Matters, 66 Ala. L. Rev. 253 (2014); Sonja R. West, The Stealth Press Clause, 48 Ga. L. Rev. 729 (2014).
[8] Professor Krotoszynski cited several court cases for this proposition. See Reno v. Arab American Anti-Discrimination, 525 U.S. 471 (1991); Baker v. Carr, 369 U.S. 186 (1962); and Kerry v. Dinn, 576 U.S. 86 (2015).
[9] U.S. Immigr. & Customs Enforcement, Directive 7-6.1, Border Searches of Electronic Devices (2009), https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf.
[10] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
[11] James B. Kelleher, Three Hutaree Militia Members Sentenced in Detroit to Time Served, Reuters (Aug. 8, 2012, 12:10 PM), https://www.reuters.com/article/us-usa-security-hutaree/three-hutaree-militia-members-sentenced-in-detroit-to-time-served-idUSBRE8770ZQ20120808.
[12] Michael R. Sherwin, Panel Event at the William & Mary Law School Human Security Law Center Media Freedom & Human Rights Symposium: Comparative Free Speech Issues (Jan. 28, 2022).
[13] Id.
[14] Press Release, Dep’t of Justice, Leader of Oath Keepers and 10 Other Individuals Indicted in Federal Court for Seditious Conspiracy and Other Offenses Related to U.S. Capitol Breach (Jan. 13, 2022), https://www.justice.gov/opa/pr/leader-oath-keepers-and-10-other-individuals-indicted-federal-court-seditious-conspiracy-and.
[15] Journalism Under Digital Siege: World Press Freedom Day 2022, United Nations, https://www.un.org/en/observances/press-freedom-day (last visited Apr. 10, 2022).
[16] Seminar on Promoting an Independent and Pluralistic Asian Media, Declaration of Windhoek on Promoting an Independent and Pluralistic African Press, U.N. Doc. CII.92/CONF.002/LD.9, KAZ/92/INF.3 (Aug. 10, 1992).
[17] World Press Freedom Day, UNESCO, https://en.unesco.org/commemorations/worldpressfreedomday (last visited Apr. 10, 2022).
[18] Id.
