But so what? Calls to regulate online political speech by foreign interests threaten basic civil liberties for everyone.
Recent revelations that Russian interests used social media to interfere with the 2016 American election campaign have sent lawmakers scurrying to respond. China’s “Great Firewall” offers one possible model for securing our democracy. Just as China’s “Great Wall” blocked foreign invaders, the country’s virtual wall protects Chinese Internet users from the foreign threats that appear to have infiltrated Facebook and Twitter in the U.S.
China censors any agitators, foreign or domestic, on social media. Politically sensitive topics like Tibetan self-determination, the Tiananmen Square demonstrations, or resistance against the Communist Party are off-limits. Of course, the Great Firewall also completely blocks access to Facebook, Twitter, and thousands of other websites. Through these measures, Chinese citizens can rest assured that they are free from foreign interference. So is this a system we should adopt here? Heck no.
Emulating China’s disregard for free speech may seem like mere satire for Americans. But is it? There is always risk for overstatement when resorting to “slippery slope” arguments. But recent calls to regulate online political speech by foreign interests directed at Americans seem to articulate no bounds. There is a real risk that a rush to regulate will threaten basic civil liberties.
Based on what we know so far, most of the Russian hijinks last year consisted of social media ads microtargeted at Americans discussing sensitive social and political issues. Notably, at least one ad promoted the “Black Lives Matter” movement. Few of the ads referenced Hillary Clinton and Donald Trump.
In narrowing the scope of what speech campaign finance laws may regulate, the Supreme Court observed in the 1976 case Buckley v. Valeo that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application.” How true that remains today.
Recent debates show the difficulty in blocking foreign nationals from speaking without also compromising Americans values. For example, consider immigration. Many of those publicly voicing support for the Deferred Action for Childhood Arrivals (DACA) policy have been undocumented immigrants. Some of the most vociferous opponents of the Trump administration’s “travel ban” have been citizens of affected countries. Could we prevent these foreign nationals from speaking to American voters about these issues during election season, and would that not end up stifling part of the debate?
Consider also the latest controversy over NFL players refusing to stand for the national anthem. Many professional athletes playing for American sports teams are foreign nationals. Others might play for teams with foreign owners. Under these circumstances, could professional athletes be prohibited from engaging in political displays like “taking a knee”?
These examples pale in comparison to the content broadcast daily to Americans by Russia Today (RT) and China Central Television, both sponsored by foreign governments adverse to American interests. The coverage of American political issues by these outlets likely far surpasses the amount of social media ads that Russian interests may have purchased last year. To protect us from foreign interference, will we begin shutting these broadcasts down? What about foreign publications marketed in the U.S., like the Economist magazine or the Guardian newspaper?
Any regulation of speech about political issues by foreigners could end up entangling U.S. citizens. Therefore, American supporters of Black Lives Matter, to name one obvious issue, may very well end up being regulated too.
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Even if we could use technology, such as blocking overseas Internet Protocol (IP) addresses, to prevent only foreign nationals from influencing us, this would still limit Americans’ First Amendment rights. As the Supreme Court has held, the right to speak also involves the right to listen.
Except in the most closed societies, speech has always seeped across national borders. In an irony befitting today’s topsy-turvy politics, Democrats now decry Russia’s attempts to aid Trump last year. But last year, Republicans condemned foreign leaders who urged Americans to reject Trump. Look at history as well. The book “Democracy in America” is one of the most influential tracts on our political system, and remains required reading in American university political science courses today. It was written, of course, by Alexis de Tocqueville, a Frenchman. By regulating Americans’ access to foreign speech about our politics, we risk becoming a “hermit kingdom.”
All this is not to diminish the threat of foreign interference in our democracy. But First Amendment rights, once curtailed, are not easily restored. Therefore, we must carefully consider how we handle this issue. Rushing to restrict Americans’ political freedoms in the name of curbing foreigners’ political speech would play right into Russia’s hands.
Eric Wang is a political law attorney and Senior Fellow at the Center for Competitive Politics.
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