The Volokh Conspiracy

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Free Speech

EU Orders Google to Vanish Russian Government Sites (RT and SputnikNews) from European Search Results

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This happened last week, but I just learned about it today. Here's what appears to be the EU order, from a takedown request archived in the Lumen Database; I used a VPN to do searches from Belgium and France, and indeed saw that no search results from those sites come up, and Google gives the takedown request as a justification.

I'm appalled by Putin's invasion of Ukraine, and I appreciate that the information war is a big part of the war (though a war in which, officially, the EU is not a combatant). But restrictions on the availability of one side's views also obviously limit the European public's ability to get a full picture of the war, for instance in deciding what to think and do about the European reaction to the invasion. (Even the Kremlin's lies say something important about the Kremlin's perspectives and attitudes; plus the sites are blocked in their entirety, including their long-ago archives and other materials that aren't part of at least this information war.) And of course it might be worth trying to game out whether this is likely to lead to pressure to similarly vanish content from other countries that are accused of misconduct (whether justifiably or not), such as China, Israel, etc.

In any event, I'd love to hear people's views on the subject; I include at the end of this post one reaction from a colleague, sent when I posted a query to a law professor discussion list.

Here's the takedown demand:

From: <@ec.europa.eu>

Date: Fri, Mar 4, 2022, 6:57 PM

Subject: Ukraine

Dear Signatories,

I am sending you the below email on behalf of [redacted], in order to provide clarifications related to the sanctions, following up on questions received.

Kind regards, [redacted]

Disclaimer: please note that this is an informal position, which does not bind the Commission. Please also note that it is for national judges and ultimately for the European Court of Justice to rule on the interpretation of Union law. 

Internet search services

In the Regulation the legislator intends to set out a very broad and comprehensive prohibition. Internet search services are provided by "operators" for the purposes of the Regulation. The Regulation prohibits both the broadcasting (which is a very broad concept in this Regulation) and the fact that operators "enable, facilitate or otherwise contribute to broadcast".

The Regulation refers in that regard to "including through transmission or distribution by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications." Furthermore, the anti-circumvention clause laid down in the Regulation is worded in very broad terms. A broad construction of the prohibition laid down in the Regulation is also consistent with its objective, which is in particular to tackle the fact that RT and Sputnik have to date gravely distorted and manipulated facts and have repeatedly and consistently targeted European political parties, especially during election periods, as well as civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions in the Union and its Member States (recital 6); the Russian Federation has engaged in continuous and concerted propaganda actions targeted at civil society in the Union and neighbouring countries, gravely distorting and manipulating facts (recital 7).

Search engines such as Google are designed to index results containing any possible content; they index websites throughout the world; the information is indexed by their 'web crawlers' or robots, that is to say, computer programmes used to locate and sweep up the content of web pages methodically and automatically (see by analogy judgment of the ECJ in Google Spain, C‑131/12, para. 43). The activity of search engines plays a decisive role in the overall dissemination of content in that it renders the latter accessible to any internet user making a search on the basis of the content indication or related terms, including to internet users who otherwise would not have found the web page on which that content is published (see by analogy judgment of the ECJ in Google Spain, C‑131/12, para. 36). Consequently, if search engines such as Google did not delist RT and Sputnik, they would facilitate the public's access to the content of RT and Sputnik, or contribute to such access.

It follows from the foregoing that by virtue of the Regulation, providers of Internet search services must make sure that i) any link to the Internet sites of RT and Sputnik and ii) any content of RT and Sputnik, including short textual descriptions, visual elements and links to the corresponding websites do not appear in the search results delivered to users located in the EU.

Social media

In the Regulation the legislator intends to set out a very broad and comprehensive prohibition. Social media are operators and they offer a service to their users. The Regulation prohibits both the broadcasting (which is a very broad concept in this Regulation) and the fact that operators "enable, facilitate or otherwise contribute to broadcast". The Regulation refers to "including through transmission or distribution by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications." Furthermore, the circumvention clause is worded in very broad terms. A broad construction of those terms is also consistent with the objective of the Regulation, which aims to tackle the fact that RT and Sputnik have to date gravely distorted and manipulated facts and have repeatedly and consistently targeted European political parties, especially during election periods, as well as civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions in the Union and its Member States (recital 6); the Russian Federation has engaged in continuous and concerted propaganda actions targeted at civil society in the Union and neighbouring countries, gravely distorting and manipulating facts (recital 7).

It follows from the foregoing that social media must prevent users from broadcasting (lato sensu) any content of RT and Sputnik. That applies both to accounts which appear as belonging to individuals who are likely to be used by RT/Sputnik and to any other individuals. Moreover, social media accounts that either formally or de facto belong to RT and Sputnik or their affiliates must be suspended because it is prohibited under paragraph 1 and furthermore falls into "distribution arrangement".

As regards the posts made by individuals that reproduce the content of RT and Sputnik, those posts shall not be published and, if published, must be deleted. There is of course a dividing line between, on the one hand, content by RT and Sputnik reproduced (broadcast) by an individual and, on the other hand, content by the author of the post; that line needs to be drawn also because the Regulation needs to be construed in line with the principle of proportionality and the fundamental right to freedom of speech. Admittedly, that line might be difficult to draw in certain cases in practice. It is true that social media are put under strain and that is in tension with the prohibition of general monitoring obligation laid down in Art. 15 E-commerce Directive.

However, the decision to fully depart in the present Regulation from the E-commerce Directive has been a conscious one and justified on the ground of the situation and its temporary character.

Use of the content in media reporting on the sanction

Pursuant to the freedom of speech, media have the right to report objectively on current events and to form their opinions thereon. The freedom of speech also entails that users have the right to receive objective information on current events. At the same time, the right to free speech can be restricted for legitimate public interests in a proportionate manner.

Where a media outlet other than Russia Today and Sputnik reports about the current Regulation and it consequences, it may inter alia provide the content and in that regard it may refer to pieces of news by RT and Sputnik, in order to illustrate the type of information given by the two Russian media outlets concerned with a view to informing their readers/viewers objectively and completely. The right of free speech of other media outlets can however not be used to circumvent the Regulation: under Article 12, "It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent prohibitions in this Regulation." Therefore, if another media outlet purports to inform its readers/viewers, but in reality its conduct aims at broadcasting Russia Today or Sputink content to the public or has that effect, it will be in breach of the prohibition laid down in the Regulation.

Here's one reaction, from my UCLA Law colleague Prof. Neil Netanel:

The European Council regulation expressly applies to Internet services, not just broadcast media. That makes sense to me. The regulation cites not only the RT and Sputnik disinformation campaign regarding Ukraine, but also their repeated and consistent dissemination of hate speech and propaganda targeting the function of democratic institutions in the European Union and its Member States, as well as propaganda aimed at destabilizing EU countries that border Ukraine.

The regulation is an expression of Europe's prevailing post-WWII "militant democracy" understanding of constitutional governance, pursuant to which democratic states must balance rights of free expression and association against the need for democracies to defend themselves against anti-democratic actors who exploit democratic liberties to undermine democracy. RT and Sputnik have been highly effective in exploiting Internet services to undermine democracy in Europe.

The regulation does not appear to ban critical analysis that includes excerpts of RT or Sputnik feed, so long as it is not a thinly disguised means to act as a substitute for RT or Sputnik.

It also appears that RT France is challenging EU's general sanctions on RT and Sputnik News in court.

UPDATE: Here's a reaction from Daphne Keller (Stanford), author of Amplification and Its Discontents: Why Regulating the Reach of Online Content Is Hard:

Just to clarify, while the concepts and language in the March 1 Reg look like broadcasting law under instruments like the Audio Visual Media Services Directive, its legal basis actually lies in sanctions authority. The March 1 Reg is an amendment to existing sanctions law.

This of course adds to confusion about what the March 1 regulation means, and whether the interpretation advanced by the EU in the communication Eugene pasted here is valid. Over in my corner of EU Internet law Twitter, the EU's interpretation is widely disparaged, but I imagine there are other schools of thought out there.

Other troubling parts of the EU's interpretation, to me, are

  • It requires removing RT/Sputnik content even when it is shared by ordinary users on social media or posted by webmasters for any purpose. No exemptions for critical discussion, etc. (There is a *media* exception but not one for Internet users and platforms. And even the media exception is remarkably narrow.)
  • It is asking platforms to proactively *prevent* users from sharing this content, using filters. That's why it talks about eCommerce Directive Art. 15. You could write a final exam on both the technical logistics and the legal/fundamental rights issues with that.

NEXT: The Fourth Amendment and Geofence Warrants: A Critical Look at United States v. Chatrie

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  1. " I'm appalled by Putin's invasion of Ukraine "

    Jury's still out on that one.

    1. Jesus, "Reverend",
      that doesn't even make any sense.
      Take your fucking Namenda (man!)

  2. Stupid as you say, ignorant, counter-productive. But I have come to expect no less of governments, where the lack of competition shields them from reality, and their instinct is for expanding their bureaucratic empires.

  3. The whole world seems to have taken an abrupt leap in the authoritarian direction over the last few years, doesn't it?

    I think it's a case of having accumulated, unthinkingly, (At least I'd like to think if was unthinkingly!) all the bits and pieces of police states, under one justification after another.

    And then Covid gave the governments of the West and excuse to assemble the machine. The war in Ukraine is an excuse to give it another trial run.

    We're going to be hard put to disassemble that machine again, once it's up and running.

    1. Strange that you don’t see the beginning at 9/11?? If you see something, say something. And Islam gives terrorists superpowers unlike Catholicism….I wish the terrorists were Christians!! White terrorists can be stopped by a few infrastructure improvements and police action—Islamic terrorists can only be stopped with wars and trillions of dollars and major infringements to privacy and civil liberties.

      1. What did I say that makes you think I didn't see the beginning at 9/11. if not sooner? That wasn't when we started accumulating those parts of the machine, but accumulation certainly picked up then.

    2. Indeed, normal adults aren't children that need to constantly be told what to believe. We can see how Putin's an ahole just fine. This is just another excuse to secure and consolidate power.

      1. I am not sure that Brett would agree that "Putin is an ahole." I'm fairly certain he's in the "this is none of our business" camp, blames primarily NATO for Putin's legitimate security concerns, sadly acknowledges the atrocities happening in Ukraine but doesn't worry about what it may mean for Moldova, Georgia, or the Baltic states, etc.

        1. I'm trying to figure out if you've read anything at all I've written, past my name on the post. Somehow I doubt it.

          1. It doesn't matter, he knows you aren't supporting him, therefore you are a Nazi Fascist Racist Sexist Trumputinista Bad Man. The details of what you actually post aren't important.

        2. This war is the love child of McCain and Putin. Neocon senators and neoliberal Deep Staters get the blame on the American side.

          1. You do realize that McCain's been dead for almost four years now, right? Or do you think that he was such an evil neocon that he faked his own death so he could continue his nefarious plans?

            1. General Marshall retired in 1951 and so it’s dumb to call it the Marshall Plan!! Duuuuuuuuuuuuuuh.

    3. And here, Eugene, is the kind of gullible dupe that RT propagandists are no doubt aiming for.

      1. Asking that people be treated like adults and don't need constant supervision and protection from bad opinions by an all powerful nanny government is being a russian dupe?

        1. No, he's a dupe because he's the sort of person who's more concerned by the creeping "authoritarianism" of COVID mandates and anti-misinformation mandates than he is by the full-blown authoritarianism of dictators jailing political opponents, outlawing dissent, committing genocide in a neighboring country, etc.

          Putin knows exactly how to speak to people like Brett. That's why Tucker is dancing on his strings.

          1. "Putin knows exactly how to speak to people like Brett. That's why Tucker is dancing on his strings."

            Lol you're the one trying to bring Putin's speech policies to the US. Talk about dancing on Putin's strings! You're out-Tuckering Tucker!

            1. No one out-Tuckers Tucker. In fact, no one not being blasted out approvingly by Russian state media, as Tucker is, possibly could. Glenn Greenwald wins dishonorable mention. That's as close as anyone's likely to get.

            2. The conflation of my position with actual censorship is precisely the kind of dishonest dodge that gives your game away.

              1. You want to silence other people. That is your position. That is, literally, censorship!

      2. And here, Eugene, is the kind of gullible dupe that RT propagandists are no doubt aiming for.

        The hypocrisy of calling someone else a Russian propaganda dupe while simultaneously championing official state censorship couldn't be more obvious.

        1. "Ah, but all these things -- censorship, authoritarianism, jailing political opponents, outlawing dissent, etc. -- are morally justified if you're doing them for the right reasons!"
          (I don't know SimponP from Adam, but that's the general leftist line of thinking. He can tell us if I got it wrong.)

        2. I'm not "championing" anything; what it is that I am tentatively supporting isn't "official state censorship"; and there's no apparent hypocrisy in calling one person susceptible to propaganda while trying to stop that same propaganda from infecting the person.

          Do you mean to intimate that some nefarious state power is looking to convince "gullible dupes" like myself into believing that outlets like RT should not be as free to operate in the west as other outlets that are not clearly Russian misinformation tools?

          1. What you're supporting is state censorship laundering. Private entities acting on behalf of the state, cooperating with the state to accomplish what the state itself is forbidden to do openly.

    4. Leftists are in control and they know they will be held unaccountable. So their true colors are shining.

    5. fascism is a shorter leap from the left than the right and you start with heavy regulation and abrupt demands.

  4. The idea that disseminating even clear misinformation has value, insofar as it provides insight into the thinking and actions of the misinformer, is predicated upon certain beliefs about epistemology and the "marketplace of ideas" that I've never seen adequately defended by First Amendment hawks. It's just taken for granted that "the answer to bad speech is more speech." The truth will out, etc.

    I might have believed that once, myself; after all, I've drunk from the same trough. But modern social media has shown us how these accepted "truths" poorly grasp how most people actually decide what to believe is true about the world. Algorithms reward engagement with content by providing more of the same content; users see claims made across platforms and begin to believe that they reflect a consensus point of view; information bubbles form and echo chambers resonate. As it turns out, people aren't very careful when evaluating the truth of even extraordinary claims; they are more inclined to believe statements they're exposed to while alarmed; they rely overmuch on simplifying heuristics.

    This is the point of misinformation outlets like RT and comparable kinds of media. It's not to convince anyone through a careful presentation of the facts. It's to present, in broad contours, an "alternative" viewpoint, whose very alternative-ness lends it a kind of credibility in the eyes of audiences who've already been primed to disbelieve the "mainstream" media. People primed for this kind of material don't necessarily buy into it outright, but the question is planted - what if it's true? What if there's something to these biolab claims (for instance)? That's why you see loons on the left and right both parroting Russian propaganda right now.

    This is a pernicious, observable effect that we're seeing in our information networks right now. (And there are people actually studying it and writing about it, if you'd just take a moment to search them out.) It calls for regulation and, in the midst of an information war, counterdefenses.

    I can't speak to any particular measure being floated now to counteract Russian propaganda; I recognize that it's an incredibly difficult and technical balance to strike. Facebook and YouTube censorship is awkward, inept, too little too late. We need a way of theorizing and creating the fundamental conditions for the sort of "free speech" we want to continue unfettered, while protecting it as it needs to be from intentional efforts to turn "free speech" against itself.

    But I do know that announcing, somewhat facilely, that "more speech is the answer" is profoundly mistaken. We are not going to win a debate with the RT pundits and propagandists, because their goal is not to have a debate. Their goal is to confuse the public with ultimately unfalsifiable (absent deep research) claims and to peel off conviction for the opposing narrative, no matter how well-founded the opposing narrative actually is.

    Engaging their claims earnestly is exactly what they want. We need to shut them out, not let them in.

    1. "We need to shut them out, not let them in."

      That's the policy they have in Russia, too. It's horrible that people like you want to bring the Russian lack of free speech to the US. It's bad enough that they have it in Europe.

      1. If you oppose "deplatforming" on social media and support legal efforts to force Facebook, Twitter, YouTube, etc., to carry content that they would prefer not to carry, then you also recognize the importance of regulating the "marketplace of ideas" so that true "free speech" can be allowed to happen.

        1. Saying laws reducing deplatforming and laws increasing censorship is the same because they are both regulations is like saying laws against murder and offering a bounty for a dead criminal's head is the same.

          1. And yet there you are, in another thread, saying that there is no difference between banning speech per se and restricting the propagation of clear misinformation.

            1. uh yeah. reducing censorship is a bit more different to censorship than censorship is to censorship. Your point?

              1. Do you not understand how an anti-deplatforming law would have to work?

                1. Sure do, whats so wrong with having one?

                  1. So you're opposed to "censorship," but in favor of "compelled speech," as well as a government body deciding what a platform must say?

                    1. No the platform isn't forced to say anything. They are a utility like the argument the network neutrality and the section 230ers use. And only if they form an effective monopoly that controls speech. If the user actually has feasible options they can do what they want.

                      Its not the perfect solution but given the choice between empirically proven mass nationwide pervasive censorship and one simple business regulation which is far milder than literally hundreds of thousands of laws/regulations already operating right now that sjws/conservatives don't mind/don't even know exist. I think its a worthwhile trade.

                    2. No the platform isn't forced to say anything. They are a utility like the argument the network neutrality and the section 230ers use.

                      Twisting semantics to conclude that social media ISPs are really "utilities" doesn't change what it is that treating them like a utility actually entails. Calling them a utility is just a way of compelling them to carry speech while avoiding the ordinary First Amendment implications of doing so.

                      It's also a remarkably simplistic argument. No social media outlet works like a telephone network, where messages are just relayed from one person to an audience that wants to hear it. Facebook and the other platforms all manipulate those messages and present them in a way calculated to achieve a certain level and kind of engagement. So requiring a platform to carry someone like Trump has to mean more than just letting Trump upload his insipid commentary for anyone who wants to hear it. It has to mean that they do something with that commentary.

                      It has to mean, for instance, making that commentary available to people who specifically opt in to receiving it, but also presenting it on their feeds in a way that they, Trump, or someone (a government regulator?) views to be appropriately prominent. It may also mean "pushing" Trump's commentary to people who haven't opted into it but might be interested in receiving it (depending, I suppose, if a government regulator felt that was the right way to treat his commentary). It may also require the platform to tolerate a certain kind of engagement with Trump's commentary (e.g., liking, sharing, re-tweeting, etc.; permitting comments and taking a hands-off approach to comment moderation; and so on).

                      There are a whole lot of questions here that don't have an obvious answer, based on the mere assertion that "platforms" are "utilities." A lot of nuanced decisions and rules have to be made to make a platform work like a "utility" that can exercise no control over the speech being conveyed, and all of those decisions and rules turn on questions about the content of the speech that the platform is required to carry and present to users.

                      What you're calling for is actually just an updated version of old-school censorship, where authors had to seek the approval of the king in order to publish anything. The Facebook regulator would be in charge of deciding how Facebook operates and how it should present messages with which it disagrees.

        2. Russia's policy, that you support, is for the government to censor speech that doesn't reflect the official view. You can argue around the edges all you want, but you're the one supporting the straight-up censorious policies of the most unfree countries in the world.

          1. What "official view" does banning RT represent?

            1. The one from some unnamed EU regulator that is presented in this letter, obviously. The underlying view is that Russia's propaganda outlets are lying in a particularly dangerous and pervasive way.

              1. They are. That doesn't mean I think they should be censored -- I don't. But they certainly are, to adopt your language, lying in a particularly dangerous and pervasive way.

                1. I agree they are. But this order is bad because government shouldn't be able to enforce that view on everyone else

    2. I appreciate those arguments; there's a lot to them. But one question: How much do you trust the EU?

      1. I trust the EU a whole lot more than I trust Russia.

        The "appeal to bureaucratic incompetence/overreach" is a lazy counterargument. I recognize that there are few institutional checks or structural incentives that can give us confidence that attempts by the EU to regulate the bounds of "free speech" are going to hit the mark - or, if they over/undershoot, will be corrected. But the answer to that, in my view, is to build a better structure, create better incentives, etc. - not to throw our hands up at the whole endeavor.

        Securities regulators, food and drug safety regulators, environmental protection regulators - they're all in the same boat. Limited, sometimes woefully outdated tools; lack of resources to fully study issues; institutional inertia and politics that makes effective action difficult to impossible. But we don't just say - Okay! Everyone trade in crypto! Ivermectin for advanced COVID pneumonia! You take a look at the process and improve it.

        It is sometimes shocking when you step outside of the legal/political realm and read actual academic work on some of these areas. There are tons of great ideas out there. It's getting them into place that proves challenging, for various reasons. The EU isn't perfect, no. But this judgment may be right.

      2. One of my colleagues used to trumpet, "Assume nothing; trust no one."
        While Mr Putin has grossly violated many norms of civilized behavior between nations, there are real grievances felt by Russia. The strong presence of neo-Nazis in the Ukraine is real. In Donbass there has been a war for eight years with almost 14,000 victims, civilians in most part and the responsible for this massacre are Ukrainian neo-Nazi groups.

        Trying to cancel all viewpoints from Russia is to support a claim that ignorance is supperior to knowledge.

        1. While Mr Putin has grossly violated many norms of civilized behavior between nations, there are real grievances felt by Russia.

          That's a funny way of saying "war crimes" and "apparent genocide."

          The strong presence of neo-Nazis in the Ukraine is real.

          No doubt! It was something that the American government has been warning about for several years. The incorporation of neo-Nazis into the Ukrainian military and their impunity in some parts of the country has definitely been a problem for Ukraine. It is also something that Zelensky was attempting to address.

          Ironically, he might have been able to focus more of his efforts on actually addressing it if it weren't for Russia's seizure of Crimea, its destabilizing efforts in the Donbas region, and its continuing threats against Ukrainian sovereignty. As it turns out, it's hard to turn away experienced fighters when your nation is under siege by a much more powerful country.

          And, you know - remember what happened when we kicked the Baathists out of the Iraqi military. Looking back, that strategic error was one of the major blunders in the American occupation of Iraq that resulted in further conflicts down the road. So it may have made sense in Ukraine to focus on integrating and controlling the neo-Nazis, rather than "denazifying" the country by cluster-bombing hospitals.

          1. Moreover, how is the presence of neo-Nazis in the Ukraine a "grievance" for Russia?

            1. David,
              If you don't understand that you don't understand the region or how long memories last among the Slavic peoples

              1. The concern is legitimate. But addressing it by erasing a national boundary is Sudetenland 2.0. Ironically.

                1. That is also true Leo. The reality of grievances does not justify an aggressive war.

              2. I do not think that there is a genetic difference in the ability of people of Slavic descent to recall historical events. And that is irrelevant to the point anyway. Surely Jews have good reason not to be fond of neo-Nazis, but that does not make it a legitimate grievance of Israel if there are neo-Nazis in the Ukraine.

                (There are, of course, neo-Nazis throughout the world.)

          2. ""war crimes" and "apparent genocide.""
            Not all wars are war crimes, some are. I am not competent to judge as I don't have on the ground knowledge. But, considering a 75 year history of indiscriminate US bombing and killing of civilians, you don't have much of a leg to stand on except to yell louder.
            Your charge of genocide just cheapens the word in offense to millions who died in real genocides.

            I'll agree with you about one thing: the US made a colossal and tragic blunder in purging the Baathists in Iraq

        2. "The strong presence of neo-Nazis in the Ukraine is real."

          It's not even clear what stuff like that means anymore. The mainstream left would have us believe that the US is a white supremacist culture. Is that better or worse than what they have in Ukraine?

          1. 12"
            It means that neo-Nazi gangs kill ethnic Russians. especially in the Donbass oblast.

            1. So, in response to "Neo nazi gangs killing ethnic Russians"...the response of Russia is to send assassination squads after the Jewish President...

            2. There certainly are neo-Nazis - and some straight up traditional Nazis - in Ukraine, but I'm not aware of any group of neo-Nazis, gangs or otherwise, targeting and killing ethnic Russians there.
              I did a search for any reports, but while I found a lot of stuff about Azov Battalion's existence, and some vague Russian accusations, I didn't find anything like you describe for recent years. I did find a reference to two events in the late 90s/early 00s, though. Is that what you meant?

              I also found reports - including a 2015 article from the LA Times - about Russian neo-Nazis killing "traitor" Ukrainians in the east, and a lot about Russian neo-Nazi gangs in Russia.

              Do you have any references to specific events I could see?

        3. ??? "Ukrainian Neo Nazis"???

          Ukrainian President is Jewish....

          1. I suspect that Putin is just reveling in his ability to spew BS and have people take it seriously.

    3. we might as well not have a first amendment if what you say is true.

      If we can objectively tell and trust our authorities to reliably pick 'goodspeech' from 'badspeech' and the only speech worth protecting is what we already like then we should just pick a king or oligarchy and get back to living like we used to in the olden days.

      1. What is the point of free speech, in your view?

        1. What is the point of free speech, in your view?

          That's a simple-minded child's way of phrasing a question. There is no "point of free speech", as free speech is not an action. Speaking freely is. So is guaranteeing freedom of speech. As actions, those can and (generally) do have objectives ("points") associated with them.

          So maybe ask a question that actually means something.

          1. That's a simple-minded child's way of phrasing a question.

            Well, I am speaking to simple-minded people.

            So maybe ask a question that actually means something.

            I think you understand well enough what I was asking. But I see you'd rather come in and attack me for speaking simply than engage the question yourself.

            Let's put it this way, so as to eliminate the need for sour detours:

            The First Amendment prohibits Congress from making any law that would "abridge" the "freedom of speech." That is a provision of the Constitution that I think we all deeply value and can especially appreciate when we compare our "free speech" traditions to those of even other Anglophone countries.

            But we seldom are very clear when we talk about why it is so important to us. Case law treats "political speech" as at the core of the First Amendment's protections, which makes sense in light of the historical context in which it was adopted. But the First Amendment is by no means limited to simply "political speech," and in the centuries since it was adopted, it has been expanded to cover vast areas of opinion, artistic endeavor, scientific work, and so on. "Free speech" is a very broad category.

            But we might ask, it protects "free speech" - to what end? The Supreme Court has, in acknowledging certain narrow exceptions to the First Amendments' protections, that "free speech" has a purpose that is not meaningfully furthered by permitting certain forms of speech. Obscenity. Fraudulent speech. "Inciting" speech. These categories of speech are not protected because they do not further whatever purpose the First Amendment can be said to serve. In other respects the Court has acknowledged that there are fora in which "free speech" serves a limited, or no, purpose, as well as ways in which the time, place, or manner of speech can be regulated without meaningfully undermining the regulated speech, from a First Amendment perspective.

            If we're clear about why we have the First Amendment - to wit, "what is the point of free speech?" - then we can start to ask what role misinformation and social media plays in our "free speech" environment. Eugene, for example, does not seem to think that the widespread propagation of misinformation is any real problem for our "free speech" environment, because it has intrinsic value apart from its express content. But if the "point" of free speech is to encourage lively debate and come closer to broad consensus about what is "true" about the world, we can observe that widespread misinformation - particularly as amplified through our algorithmic world - can have a profound deleterious effect.

            Now, all of this is obviously above Amos's pay grade, so I was trying to Socratic him through it, with little bits of digestible questions. I see that you've taken offense, WYOT, despite intimating that you had no problem at all understanding what I'd asked Amos. But there it is, more or less, the intended program.

            1. Well, I am speaking to simple-minded people.

              That sort of bullshit is reason enough to not take you seriously, but I see you insist on giving us more anyway.

              I think you understand well enough what I was asking.
              despite intimating that you had no problem at all understanding what I'd asked Amos

              Given that you were incapable of asking it it anything resembling an intelligent...or even clear...fashion, as well as the fact that I pointed out that your question was meaningless, it is rather bizarre for you to claim that I or anyone else clearly understood what you were asking. Well, it would be bizarre for any rational person, that is.

              Eugene, for example, does not seem to think that the widespread propagation of misinformation is any real problem for our "free speech" environment, because it has intrinsic value apart from its express content.

              Perhaps you should have tried reading what he wrote rather than jumping conclusions based on what you're being told by the voices in your head, as the above bears no resemblance at all to what he actually said.

              1. I am not really interested in having an extended debate with you about whether my initial question was properly posed. I have now clarified for you my meaning, so I can only take by your response here that you have no desire to discuss anything interesting.

            2. But we might ask, it protects "free speech" - to what end?

              That's a very progressive way of looking at the issue. To the progressives — I mean the early 20th century movement, not the 21st century one which is all about using certain bathrooms and land acknowledgements — free speech was an instrumental good. We needed to protect it to the extent it advanced democracy. To the extent it didn't, it was just a quaint relic of an earlier era.

              To be sure, there are plenty of pragmatic arguments in favor of free speech, like the fact that nobody with power can be trusted to decide what's "misinformation." And even if they're honest and well-intentioned, they may simply be wrong. And even if they're honest, well-intentioned, and right, we still benefit from hearing the arguments that they're suppressing.

              But even if we set those aside, liberty is not good because of the "end" it leads to; it's a good for its own sake.

              1. That's a very progressive way of looking at the issue.

                No, it's a way of looking at the issue that is rooted in American history and jurisprudence, and is a perfectly ordinary way of talking about the First Amendment and free speech within the academic discourse.

                But even if we set those aside, liberty is not good because of the "end" it leads to; it's a good for its own sake.

                This is not a particularly sophisticated statement. In the first place, it doesn't square with First Amendment case law; you'd have to concede that what you're saying here is rooted in a political or moral philosophy separate and apart from the American tradition.

                Second, it's not clear what you mean by "liberty," here. Does it mean something other than "freedom"? Is it defined by the absence of claim-rights of others? Is it possible to make sense of this notion of "liberty" without some robust notion of individual rights?

                Third, what makes liberty good? You seem to take liberty's "good" to be axiomatic, but I don't see any reason why that would be self-evident.

                The lack of clarity on what the term is supposed to mean makes it hard for me to guess at what the possible argument for its "goodness" might be. I can tick through the mainstream moral theories of the "good" and make an argument, in each case, that liberty has value, is "good." But in each case it would be a contingent liberty, one situated within a moral framework that makes clear that liberty is a good only when it serves a broader purpose or is limited in certain ways. Liberty per se, in other words, is not "good."

                So, no - my perspective on "free speech" is not particularly "progressive." It is a mainstream approach to the question. I am simply asking a meta-juridical question about free speech that I believe can provide insight on whether and to what extent we ought to tolerate "misinformation." (While most of the responses I've received from the commentariat collapse that meta-analysis and criticize my position as advocating "censorship.")

                In contrast, your own assertion stands outside mainstream First Amendment discourse, and displays the typical features of a kind of internet-libertarian approach to the question, possibly inspired by Nozick. And that's fine, I guess, for what it is. It's just not particularly relevant to the present discussion.

                1. Nice bait and switch, but you don't get to talk about centering a discussion within mainstream "first amendment discourse" at the same time you ask a question irrelevant to "first amendment discourse" — "to what end?" A first amendment analysis does not start by asking whether free speech has value; those who ratified the first amendment already made that decision.

                  One can certainly go back to first principles and challenge the worth of the first amendment, and even pompously label that approach "meta-juridicial," but that's not doing first amendment discourse.

                  1. I honestly thought you were smarter than this.

                    In my comment upthread, I refer to Supreme Court case law and exceptions and limits to the First Amendment’s protections that are entirely built around the question of “to what end?” Eugene and pretty much every First Amendment scholar with a comprehensive theory of free speech jurisprudence begins with that question, as well.

                    I don’t know exactly what you are talking about as “First Amendment discourse” - maybe you view originalist textualism as the only acceptable theory of constitutional interpretation? But, no, the ratifiers of the First Amendment haven’t settled the question.

                    You don’t typically apply the law by asking the question, “to what end?”, no. But that’s not the kind of discussion I’m trying to have. I’m trying to understand whether the First Amendment or free speech principles more generally are compatible with the unchecked proliferation of misinformation. Your only apparent take on this matter would seem to be that, since “liberty” is inherently good, any and all misinformation ought to be free and accessible to all. But since that begs the question, I don’t think that’s a helpful contribution.

                    1. That was obviously not my "only apparent take on this matter," since before I mentioned liberty I first listed pragmatic reasons why restrictions on so-called misinformation would be problematic.

                      And, no, you aren't doing any sort of first amendment analysis here, originalist or otherwise. The mainstream 1A analysis asks whether the First Amendment or free speech principles more generally are compatible with checks on a particular type of speech, rather than whether they're compatible with the speech itself. Your framing treats the speech itself as requiring justification.

                    2. That was obviously not my "only apparent take on this matter," since before I mentioned liberty I first listed pragmatic reasons why restrictions on so-called misinformation would be problematic.

                      You described them as deficient or superfluous reasons, inferior to the "liberty" justification to be paramount. And anyway, they were all question-begging. So, dismissed.

                      The mainstream 1A analysis asks whether the First Amendment or free speech principles more generally are compatible with checks on a particular type of speech, rather than whether they're compatible with the speech itself.

                      Making that adjustment to what I'm saying here does not change the argument. You're right that we don't usually ask whether (say) inciting speech is compatible with "free speech" principles. We ask whether restricting inciting speech is compatible with "free speech" principles. And the way we do that (in mainstream First Amendment discourse) is asking to what end the First Amendment protects free speech.

                      A distinction without a difference, in other words. Am I going to have to keep walking you through this?

                    3. You described them as deficient or superfluous reasons, inferior to the "liberty" justification to be paramount.

                      I did not describe them as deficient. They are indeed superfluous, but that doesn't change the fact that you lied when you said I hadn't supplied them.

                      And you still don't understand first amendment analysis, which does not proceed by first asking what value free speech has.

        2. Okay you finally admit that you are not a fan of free speech or the 1st amendment. Glad we could clear that up.

          If you want my opinion we cannot arrive at an objective truth that everyone can agree on for many things and even if we could find an objective truth it is known logically and shown empirically throughout history that we cannot trust authorities whether public governments or private monopolies to pick this 'correct' objective truth for us. So we must use other mechanisms besides royal decree when it comes to deciding which truths to allow. The only other option I've seen is the 'marketplace' of ideas.

          Feel free to disagree with me but that just reinforces my argument. Again imo. If we were living under the system you prefer one of us would have been decreed to shutup by now, and under what evidence? Thats the beauty of the 'marketplace'

          1. Okay you finally admit that you are not a fan of free speech or the 1st amendment. Glad we could clear that up.

            No, I was asking you to make clear your priors.

            If you want my opinion...

            Your opinion seems to be that the "point" of free speech is to hack at the truth. And the best way to reach that truth is through open and free discourse. I broadly agree with that sentiment.

            The problem is - let's just look, empirically, at what's happening in our information environment. Pick a topic - you will be able to point to a group of people who are deeply mistaken about something you are 100% certain you're right about. Now look at how they've reached that deeply mistaken belief. Do you see structures and reinforcements that push them in the wrong direction?

            In our other thread about deplatforming, you seem to be keen to this problem. You want Facebook to be forced to carry [whomever], because in some sense it's important for [whomever]'s views to get out there, viewed, talked about. So you recognize, in Facebook's decision not to carry [whomever], that there is something defective about Facebook's "free speech" discourse. Something structural is going wrong. People aren't getting to the truth; they're being reinforced in false beliefs.

            So all that I'm saying is that misinformation and misinformation networks poses a similar threat to our free speech. It's not about silencing Putin when he complains that NATO expanded too fast and too far, that its promises in 2008 to Ukraine and Georgia were presumptuous, that NATO troops and military equipment in border states is something that needs to be addressed. It's about pointing out that there is a whole media outlet designed to lie to us, to muddy the waters of debate and have us arguing against ourselves, rather than getting at the truth of what Putin is doing in Ukraine.

            That's all I propose we respond to.

    4. "The idea that disseminating even clear misinformation has value,"

      Represents a gross misunderstanding of what opponents of censorship have to say.

      To be sure, dissemination of objective "misinformation" can have some use, to avoid people being raised to be horribly gullible because nobody has ever lied to them and so they've had no opportunities to learn to identify lies. But that isn't the primary argument.

      The primary argument is that only an idiot thinks censorship will be limited to things that are objectively false, or that people instituting systems of censorship even mean to so limit it.

      As a general rule, truth tends to win out over falsehood in a free and open debate. That's not how it always works out, because humans are merely capable of rationality, it's not our default state. But that's the tendency, and, honestly, it's really the only way we have, in the end, of sorting true from false.

      Truth has no special advantage once debate is no longer free and open. Censorship is as useful to a lie as the truth, and a lie needs it more.

      In fact, because of that last, you should generally assume that anyone who resorts to censorship doubts they'd prevail in a free debate, and IS championing lies.

      1. As a general rule, truth tends to win out over falsehood in a free and open debate.

        Prove it.

        1. Truth has the advantage of evidence and logic being on its side. Error can't have those, if it did, it would BE the truth.

          In a free and open debate you're permitted to bring forth evidence and logic, which truth has available, and error does not.

          Essentially, truth is the stronger player, the better team. On an even playing field, it should win.

          If the playing field isn't even if the umpires a crooked, this gives error a chance, because it may get those advantages, which truth doesn't need, to give it the win anyway.

          I know you're thinking that error may win a free debate, and indeed that's true, because humans aren't objective calculating machines, we let our reason be overcome by emotion and habit. But free debate favors the truth, because it can bring its strengths to bear.

          Now, you imagine an ideal situation where the unfair playing field is tilted against error, where it's only falsehood that is censored.

          If you genuinely expect that, you're a moron.

          1. Brett, you are notorious on this board for invoking conspiracies every time the "evidence and logic" runs out.

            The other day, when one of the Capitol rioters pleaded guilty to seditious conspiracy, you and others dismissed the entire allocution as essentially coerced, a work of fiction designed to enable him to plead guilty to serious crime with real consequences for himself. (One wonders what you think he could have been convicted of, had he gone to trial, instead.) Despite his own statements that he had brought guns to the Capitol with the intent of facilitating a quick reaction force, as the insurrection spiraled out of control, you insisted (without evidence) that these were just to defend against expected Antifa violence. You found it impossible to believe that he could have come to violate the law in DC, given that he had left his hoard in a hotel in Virginia (i.e., in compliance with DC's prohibition on carrying the guns into the district).

            Another time, you explained that you had your son circumcised because you had done some minimal research convincing you that doing so could have some benefit in preventing the transmission of sexually transmitted diseases. You did not explain why this finding was sufficient to permanently alter an important part of your son's anatomy, without his consent, well before he was even close to sexual maturity. You just said that it weighed in favor of "tradition."

            Some evidence! Some logic!

            Those are only some recent examples. Brett, you are a textbook case for how the truth can easily lose in a free and open debate. Your approach to every question on which we've disagreed shows the extent to which you rely on heuristics, tribalism, tradition, etc., to decide whether even to take factual disputes seriously.

            (Or, if you'd like, I am that textbook case, since you have never successfully persuaded me that I am mistaken, etc.)

            So the point isn't proven. It isn't even plausible, as you've presented the case. Nothing about the weight of "evidence and logic" being on either of our sides ensures that the other person will be convinced, with time and effort, so you have to explain why we can expect that to happen, in the aggregate, when lots of people are debating.

            1. "The other day, when one of the Capitol rioters pleaded guilty to seditious conspiracy, you and others dismissed the entire allocution as essentially coerced, a work of fiction designed to enable him to plead guilty to serious crime with real consequences for himself."

              Not speaking for others, but you're misunderstanding my position on plea bargains. I don't regard confessions incident to a plea bargain as having strong evidentiary value, because the state does not have to prove their case. All it has to do is convince the person pleading that they're better off confessing. Being guilty is hardly the only reason you might think yourself better off confessing.

              They may be better off because the state has them dead to rights, and conviction is a sure thing.

              They may be better off because, though innocent, they don't fancy their chances of proving it in court before a hostile jury.

              And, what are the state's motives for offering the deal? Merely avoiding the expense of a trial? Avoiding the risk of an acquittal? Maybe the state is purchasing a confession that implicates other parties the state doesn't have good evidence against?

              But the bottom line is, plea bargains spare the state of the need to prove their case in court, and open the door to convictions for offenses that the state can't actually prove. They're purchased testimony, and I see no reason to place a lot of reliance on testimony which has been purchased.

    5. We are not going to win a debate with the RT pundits and propagandists,

      Nobody is trying to win a debate with them. Is that what you think allowing speech is about? Winning arguments with the speakers?

      because their goal is not to have a debate.

      And clearly that's also your goal, and the goal of everyone else cheering in censorship. You're exactly what you pretend to despise.

      1. I'm not going to engage with your specious pedantry any further than I have.

        1. Because you already lost that debate.

          1. No, it's because I find WYOT's trolling tiresome.

    6. I think Elon Musk has the right idea with Starlink, he will do his best to keep it up and open for Ukraine, but isn't in the business of censorship for China, or Russia, or Ukraine.

      On the other hand what in the world is going on with Meta? They've relaxed their moderation to allow death threats against Russians?

      "We are issuing a spirit-of-the-policy allowance to allow T1 violent speech that would otherwise be removed under the Hate Speech policy when: (a) targeting Russian soldiers, EXCEPT prisoners of war, or (b) targeting Russians where it's clear that the context is the Russian invasion of Ukraine (e.g., content mentions the invasion, self-defense, etc.)," it said in the email."

      Their standards are crap anyway, anything they don't like is a threat, or targeted harassment, like telling a laid off journalist to learn to code.

      But either have standards or don't have them. Or better yet have reasonable standards you don't game for one side or another.

      1. Not only do they have standards, they've got at least two of them.

        The only change here is that they've stopped pretending.

    7. "As it turns out, people aren't very careful when evaluating the truth of even extraordinary claims; they are more inclined to believe statements they're exposed to while alarmed; they rely overmuch on simplifying heuristics."

      Starting with yourself, naturally. No? No, of course not. You won't admit that you're relying overmuch, it's those hicks and morons over there who are.

      And that's the problem with the New Authoritarianism in a nutshell: it never applies its rules and regulations to itself. It's not just hypocritical, it makes hypocrisy a foundational element of its rule.

      1. Do you have anything to say, besides a lazy tu quoque?

        Put it this way: suppose that I am just as susceptible to these pernicious effects as everyone else. What results?

        Like - the science behind my statements doesn't suggest that a highly intelligent, informed, and reasonable person like myself is immune to what I'm saying influences other people's belief formation. I absolutely have to admit that I am just as susceptible to being misled, in the same ways and for the same reasons, as anyone else. So?

        For what it's worth, this is part of why I avoid engaging with most social media and am intentionally skeptical of what I read in those social media with which I do engage. One site I engage with regularly has a profound left-leaning bias and has been full of pro-Ukraine propaganda lately. I have to take a step back and leaven what I read there with alternative views drawn from other sources.

        It's like the Dunning-Kruger effect. Being aware of its effect does not make one immune to it. But it might lead one to be more skeptical of one's own convictions and to seek structures to avoid falling into its trap.

    8. The idea that disseminating even clear misinformation has value, insofar as it provides insight into the thinking and actions of the misinformer, is predicated upon certain beliefs about epistemology and the "marketplace of ideas" that I've never seen adequately defended by First Amendment hawks.

      The benefit in the First Amendment isn't that there is high value in every last drooling from the mouth of a guy with a gleam in his eye for Ned Beatty.

      It's in denying dictators and potential dictators their driver in their bag of tyrant golf clubs.

      Here we see that in action. Fools in democracies believing they can safely wield the power they see being misused, right on schedule, in real-time in dictatorships.

      Hint: Thinking The People can safely control it by the vote is exactly what a future tyrant relies on, for he is a specialist in stirring the winds of political passion.

      1. Also related: fools in democracies grant emergency powers to the leader, who never gives it up.

        Is silencing people through government safe, given how woke has gone flying past true harrassment and tit for tat into an enforcer of denial of opinions in restricted environs like business and schooling, legendarily second-rate arenas of expression, and is now chafing at the bit to flee those restricted domains and escape into the wild?

  5. Maybe it's just me, but........
    1: don't see how millions of Peoples abandoning their homeland is supposed to engender support.... 2: don't see how remaining Ukrainians yelling at Roosh-un Soliders to "Go Home" will be effective ("Yankee go Home" certainly hasn't worked in Georgia (US Version) 3: Is the Roosh-un(that's how Bernie Sanders says it, and he should know) Army really doing that badly? took 4 years for the US Army to do the same thing to the Confederacy (The Ukraine of 1860)

  6. "that line needs to be drawn also because the Regulation needs to be construed in line with the principle of proportionality and the fundamental right to freedom of speech."

    Who are they kidding? Europe doesn't have free speech, as is clear here.

  7. Cancel culture meets the Ukraine law.

    So will the next generation of kids not know that Russia ever existed?

    Note that this is not censoring what Russians see, it censors what people in the free world can see.

    The EU's GDPR censors what people outside the EU are allowed to say. Doesn't this add up to Orwellian 1984 eventually?

    1. So will the next generation of kids not know that Russia ever existed?

      If the Allies hadn't stopped Hitler, generations of Europeans would've grown up speaking German.
      I don't know about all of Europe, but, if Putin isn't stopped, the next generation of kids in Eastern Europe might very well grow up speaking Russian.

      1. I call the generations of Europeans speaking Germans Germans, Austrians, Luxembourgers, and German-speaking Swiss/Italians/French.

        The notion that Russia will conquer eastern Europe within the next twenty years after barely grabbing minute parts of other countries over the last twenty is certainly a notion.

      2. So what?

  8. That's terrible.

    Even in WWII people were free to listen to Axis Sally, Lord HawHaw and Tokyo Rose. You have to trust your people to sort out who is right.

    1. You know someone under each of those pseudonyms was convicted of treason, right? It's not that we were trusting the public to sort out who was right. If we could have gotten our hands on those propagandists, we'd have shut them up in a heartbeat.

      I disagree with this EU censorship, but the traitors you mentioned aren't great arguments for unfettered speech.

      1. They were punished after the war, not during.

        "It's not that we were trusting the public to sort out who was right. If we could have gotten our hands on those propagandists, we'd have shut them up in a heartbeat."

        I disagree. In Germany - indeed in Occupied Europe in general - it was a crime to listen to Allied broadcasts; if you got caught you got sent to the camps.

        It was not a crime to listen to those broadcasters in free countries, and people did so openly. Soldiers listened to them openly, and in fact I think they were popular (for the music, I think, more than the propaganda which was mocked). Soldiers and sailors mention this frequently in their memoirs.

        This is a fundamental difference between free and totalitarian governments.

        1. Agreed. Also, the women who were prosecuted after the war for broadcasting as "Tokyo Rose" and "Axis Sally" (there was more than one of each) were American citizens who were charged and convicted of treason, which is inapplicable to English-language broadcasts by Russian citizens on Sputnik. The best cure for lies is not censorship; it's more speech, explaining the falsity of what is being said.

          1. You're comparing apples to oranges. As I already said, I disapprove of the EU censorship decision, but the material they're censoring isn't treasonous. It's obnoxious, deceptive and harmful, but it isn't treason.

        2. "I disagree. In Germany - indeed in Occupied Europe in general - it was a crime to listen to Allied broadcasts; if you got caught you got sent to the camps."

          You're disagreeing with a straw man. I never said it was or should have been a crime to listen to treasonous speech. It wasn't, isn't and shouldn't be. Only that it was a crime to make and disseminate it, a crime for which the WW2 traitors were prosecuted and punished as soon as we got our hands on them. We would have stopped them sooner if we could have.

          1. I was disagreeing with "It's not that we were trusting the public to sort out who was right.".

            We very much did trust the public to sort out who was right. Take servicemen for example - their commanders could have ordered them to not listen, but they did not. They were listened to frequently and openly.

            The broadcasts weren't jammed; there were no instructions to not listen. We just trusted the populace to realize it was bunk, and they did.

            1. I think you two are talking about different kind of speech restrictions.

              You're right that there were never contemplated any restrictions on listeners.

              But Leo is right that it's pretty clear that if the Allies could have sanctioned the broadcasters, they would have...with extreme prejudice.

              The OP is more about broadcast restrictions than reader restrictions, so I think Leo has the better analogy; but I also think that the difference in medium from radio to Internet does make the analogy of limited utility.

              1. "But Leo is right that it's pretty clear that if the Allies could have sanctioned the broadcasters, they would have...with extreme prejudice."

                They didn't even try to jam them, and it's not like they didn't know how to jam radio signals.

                But mostly, if you read the biographies, people thought they were a hoot. It wasn't like the powers that be were worried that Tokyo Rose was going to hurt morale. My sense is actually the contrary; Americans in WWII were pretty confident about what they were doing. Hearing the inept propaganda from Tokyo Rose/Axis Sally didn't demoralize anyone, it had the opposite reaction.

                If your/Leo's theses was correct I would expect that at least some of the Power That Be would have said something in their memoirs about wishing they could silence the propaganda. I've read, geez, dozens of those at least without any hint they had the views you think they did. And I've read something in the low hundreds of memoirs of average soldier types, and their reaction was pretty universally that they A)liked the music and B)thought the propaganda was funny.

                Remember Baghdad Bob?. Here's what Bush I said about him:

                ""He's my man, he was great," Bush enthused in an interview with NBC's Tom Brokaw yesterday. "Somebody accused us of hiring him and putting him there. He was a classic.""

                Does that sound like Bush would have silenced him if he could?

                Every source I have read says that the people in WWII had the same opinion of Tokyo Rose/Axis Sally as Bush did of Baghdad Bob.

                Now, I may be wrong, but in the face of extensive writings by people who were there, I'm going to have to see evidence, not just bare assertions about how you think it must have been.

                1. Wiki on Axis Sally:

                  "American soldiers listened to Gillars' broadcasts for the entertaining music even as they found her attempts at propaganda "laughable."

                  1. Another:

                    " In a January 1944 article in the Saturday Evening Post, “There’s No Other Gal Like Axis Sal,” Corporal Edward Van Dyne wrote, “Axis Sally is a different proposition. Sally is a dandy—the sweetheart of the AEF [Allied Expeditionary Force]. She plays nothing but swing, and good swing!”

                    Although the GIs found the propaganda laughable, the lively music drew thousands of listeners. "

        3. Published after since they were not reachable during, I'd say.

  9. Lamont v. Postmaster General, 381 U.S. 301 (1965)

    "Syllabus

    "These cases challenge the constitutionality of § 305(a) of the Postal Service and Federal Employees Salary Act of 1962, which requires the Postmaster General to detain and deliver only upon the addressee's request unsealed foreign mailings of "communist political propaganda." Under procedure effective March 15, 1965, the Post Office sends to the addressee a card which can be checked to have the mailing delivered. The card states that, if it is not returned within 20 days, it will be assumed that the addressee does not want that publication or any similar one in the future. When the addressee in these cases received the Post Office notices, they sued to enjoin enforcement of the statute.

    "Held: the Act, as construed and applied, is unconstitutional, since it imposes on the addressee an affirmative obligation which amounts to an unconstitutional limitation of his rights under the First Amendment. Pp. 92 U. S. 305-307."

    https://supreme.justia.com/cases/federal/us/381/301/

    At least the Post Office let you opt in to the propaganda. But even that wasn't enough for the First Amendment. At least back then.

  10. Single point source (e.g. Axis Sally) isn't really the target here, I think. The real danger is the disinformation algorithms that target individual users and distinct groups with focused messaging, which happens at a level of complexity an order of magnitude above jamming the adversary's shortwave. But they do so by using the single point source branded content. So the legal debate might not exactly correspond to what's actually going on.

    At the same time, there's also old-school jamming going on in the interwebs. Taking a look at the Tass website or the speeches of Russian policymakers has been impossible since the start of hostilities, even with VPN's.

    Mr. D.

  11. I much prefer the UK's way of doing things, which has been to ban RT for failing to comply with the regulations that affect _all_ broadcasters.

    In general, there is no expectation that a country will provide outlets for enemy propaganda in time of war.

    1. OK, but when did Europe and the U. S. declare war?

      1. Specifically, if we actually declared war (which God forbid) we could ban a lot of stuff, including enemy propaganda.

        But now we're still in some form of quasi-peace, when it's legitimate to debate whether we should go to war, or even be as involved as we are now.

        During such a debate, then yes, the arguments of both sides should be vented.

        Once we decide on war, through constitutional processes, we can talk about the enemy and suppressing its propaganda.

  12. I am a volunteer election poll worker in the US. I find it remarkable that people get up in arms about voting irregularities and procedures, but fail to understand that Google has the power to swing a close election by selectively hiding or promoting search results.

    Election procedures are matters of public record and public law. You can petition a court and demand that an election official respond to your complaint.

    Google search algorithms are private property. No one can inspect them except Google. There is no redress for grievances if your political opponent is selected for promotion by Google, and you are selected for demotion.

    My sense is that the power of Big Tech is enormously more influential in skewing election results than any election law or regulation. Our laws are completely silent on this influence.

    1. This is something that so many have missed, or have dismissed. I've spoken with several people who don't see anything wrong with big tech censoring one side politically and how much it affects elections. It's akin to having the entirety of the value of their empire being used to fund a politician. Way outside of the FEC rules.

      1. Were we better off in the old days when it was only Big Media who had this kind of power?

        1. Good question. My sense is that local media (newspapers) were certainly polarized, but at least major cities had competing versions, so it wasn't generally a monoculture. My sense was also that in the 'golden era' of the national TV news big 3, they at least tried to be objective. They might collectively get things wrong, but they seemed to try.

          Whereas today the big national companies, e.g. facebook, don't seem to be holding to the middle as well.

          1. " My sense was also that in the 'golden era' of the national TV news big 3, they at least tried to be objective. They might collectively get things wrong, but they seemed to try."

            That is what a consistent party line is intended to look like, after all.

            I'm not saying Cronkite et all were trying to push a line they thought was wrong, quite the contrary.

            But they were actively trying to suppress any viewpoints they thought were "wrong". And pretty successfully, too; They managed to create the illusion that the public agreed with them on pretty much everything, an illusion that didn't really fall apart until our communications technology improved to the point where people could easily afford to bypass them.

            1. My own personal rant on him:
              Cronkite was anything but unbiased and objective. After he died, there were some biographies about him that finally dared to be honest - and it was pretty ugly.
              Cronkite regularly, and deliberately, spun the news. He demanded 'gifts' from companies to avoid having their scandals aired, and spun for - or against - politicians based on his views. For example, he and his family went on plenty of all-expenses-paid vacations from companies in the news, for some strange reason. He'd tell politicians to come on his show for exclusive interviews, or he'd spin stories against them. Alternately, he'd coordinate with the politician for a softball showing to help "clear things up".

              The entire Cronkite myth was deliberate advertising by CBS. His "most trusted" and "unbiased" image actually came from a push poll that asked a small number of northeasterners in the US which of the following they trusted, then gave a list of politicians... plus Cronkite.
              So, great! A newscaster came in as perceived to be slightly more trustworthy than Nixon, McGovern, Muskie, etc. Woo hoo?

              An actual poll of opinions of newcasters showed the Cronkite wasn't even in the top 3 - The winner was Howard Smith.
              How many of you even know who Howard Smith the newcaster was? I'd never heard of him until I started reading about Cronkite.

              Like the Watergate myth of the Washington Post, or the "I'll furnish the war" tale, the "Cronkite was trustworthy and unbiased" story is just another myth that the media likes to spread about itself.

    2. My sense is that while there are obviously big technology companies, there is no such thing as "Big Tech," and those companies do not have the power or effect you claim.

  13. I think this sort of censorship is a bad idea. For multiple reasons. Is it propaganda and views from the Russian side? Sure. We are well aware of that, but yet knowing that propaganda and views are far preferable to not having it known at all.

  14. I trust governments to use power as far as I can throw them, and I have a bad back. It's all great when used appropriately as I think it has been here, but will the governments walk away from this power when they're done with Russia?

    What happens when the government decides you are the problem and turns the weight of their power on you? Think it won't happen? It's long been happening in countries all over the world including the US.

    And there in lies the problem, governments don't put the sledge hammer of their power down when the task is complete. They just can't let go.

  15. This is clearly not ok. Require accurate labeling of sources (i.e. make clear that something comes from Sputnik or RT), but certainly don't ban the content. Respect users, trust them to sort things out for themselves. Why is this even a close question?

  16. Professor Volokh...Hopefully, that EU trend of unquestioned and uncontested speech suppression will not make it across the ocean. When EU governments arbitrarily ban 'wrongthink' and 'wrongspeak' on the stroke of a pen, the Leper's Bell has rung on our freedom of thought and speech here in America.

    What is happening here is wrong. We (the American people) are being deliberately manipulated by governmental action and media coverage vis a vis Russia and Ukraine. Leave Russia's media outlets open and accessible. Reality will show whether their words are true or not. Reporting out of Ukraine from Western media has been very unreliable, whether by design or because of the 'fog of war'. The lack of concrete information out of Ukraine is what actually concerns me more.

    There is 'a day after' the hostilities. We have to be able to talk to the Russians, and part of talking is hearing their POV (whether we think it is utter bullshit or not). In 1956 and 1968, we did not 'ban' Soviet media outlets. We stood by, and the Soviets did their thing with Hungary and Czechoslovakia. I recall Pravda being the butt of jokes in the 1970's and 80's, because the objective reality we could all see made their reporting a mockery of their sclerotic collectivist system.

  17. Free speech needs to prevail here. Otherwise you are declaring that government gets to decide which side of a war is right and punish people debating that.

  18. Have we considered that western countries, including the US, and social media outlets want Putin to win.

    Cutting of the Russian people from communicating seems like a great way to pretend to be against the war but actually in support of it.

    1. Have we considered that western countries, including the US, and social media outlets want Putin to win.

      Not if we're sane.

  19. In the US, foreign governments and foreigners outside US territory don’t have First Anendment rights. The First Amendment simply doesn’t apply.

    So the US government might well be able to take a similar action if it wanted to.

    1. It's true that the Kremlin couldn't sue claiming that its first amendment rights were violated. But an American who wanted to distribute the RT content could sue. And perhaps an American who wished to listen to it. (I don't strongly recall my right-to-receive-information caselaw, though I assume Prof. Volokh does.)

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