Columbia Global Freedom of Expression seeks to contribute to the development of an integrated and progressive jurisprudence and understanding on freedom of expression and information around the world.  It maintains an extensive database of international case law. This is its newsletter dealing with recent developments  in the field.

● The Global Freedom of Expression Case Law Database will soon host analyses, in both English and Spanish, of all decisions relating to freedom of expression from the Inter-American system. This is made possible through cooperation with the Special Rapporteur for freedom of expression of the Inter-American Commission on Human Rights. We will be rolling out the new case analyses and featuring them in the newsletter in the coming weeks, so stay tuned!

● The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Irene Khan, has issued a report on disinformation. The report “examines the threats posed by disinformation to human rights, democratic institutions, and development processes.” In particular, it discusses state responses to disinformation including state sponsored disinformation, internet shutdowns, use of criminal laws, and social media regulation, as well as company responses.

● In an article for Lawfare, “Time To End India’s War on Sedition,” Columbia Global Freedom of Expression experts Jacob Mchangama and Raghav Mendiratta discuss the pending constitutional challenge before the Supreme Court of India next month. While the sedition law has been abused historically by political leaders, they note that under Prime Minister Narendra Modi cases are up 28 percent, even if convictions remain low. Citing recent case law, they observe that the Court may be poised to finally strike down the Colonial legacy, yet there is also concern that the Court “could repeat history and merely clarify the scope of sedition (incitement to violence).”

Decisions this Week

South Africa
Decision Date: June 30, 2021
Media Monitoring Africa v. eNCA Channel 403
The Broadcasting Complaints Commission of South Africa (BCCSA) held that a television program on a news channel had infringed its Code of Conduct by featuring an interview with a COVID-19 conspiracy theorist who made a number of false statements about the pandemic. After the program was broadcast, a civil society organization approached the BCCSA, seeking sanctions against the news channel on the grounds that the broadcast had been based on facts that were false, it had not contained sufficient opposing views and was harmful to children. The BCCSA noted the “life-and-death” consequences of denying the existence of COVID-19 and stated that it had to balance the right to freedom of expression with the need to protect South Africans from harm caused by misinformation. In finding that the broadcast had breached the obligations that comment be based on facts that are truly stated, fairly indicated or referred to, the BCCSA imposed a fine on the broadcaster and ordered it to broadcast an apology.

United States
Meriwether v. Hartop
Decision Date: March 26, 2021
The United States (U.S.) Court of Appeals for the Sixth Circuit reversed the free-speech and free-exercise holdings of a district court to favor a professor who was disciplined by his university for improperly addressing a transgender student in his class. Nicholas Meriwether refused to address a transgender student by her preferred pronouns. He sought to compromise but this was ultimately rejected by officials at Shawnee State University. A written warning was issued by the university to Mr. Meriwether for violating its nondiscrimination policies. Mr. Meriwether brought a lawsuit against the officials at Shawnee State arguing his constitutional rights were violated. The district court referred the case to a magistrate judge who dismissed the claims; the district court adopted the magistrate’s report and recommendation in full. Judges Amul Thapar, David McKeague, and Joan Larsen of the Sixth Circuit held that Meriwether’s free-speech and free-exercise rights were violated. Under U.S. Supreme Court and Sixth Circuit precedent, the Court noted that Meriwether’s academic speech was protected by the First Amendment, particularly on an issue of public concern. Additionally, Shawnee State’s application of its gender-identity policy was not neutral because of hostility exhibited towards Meriwether’s religious beliefs and circumstances that permitted a plausible inference of non-neutrality.

European Court of Human Rights
Handzhiyski v. Bulgaria
Decision Date: April 6, 2021
The European Court of Human Rights found that the conviction and fine against a local politician for placing Santa Claus accessories on a communist leader’s statue in Bulgaria violated the right to freedom of expression. After the local politician placed a red Santa Claus cap and a red sack on an already-vandalized statue of former political leader Dimitar Blagoev, founder of the main party in the government coalition, he was convicted of minor hooliganism. He then approached the Court arguing that his conviction infringed his right to freedom of expression. The Court held that the sanctions were an unjustified interference with his right to freedom of expression as they were not necessary in a democratic society. The Court reasoned that the assessment of whether it is necessary to impose sanctions in relation to acts which do not destroy or physically impair monuments is nuanced and requires consideration of the nature and intention of the act, the message conveyed, and the social significance of the monument.

Teaching Freedom of Expression Without Frontiers

This section of the newsletter features teaching materials focused on global freedom of expression which are newly uploaded on Freedom of Expression Without Frontiers.

COVID-19 and Freedom of Expression
This webinar, organized by the Bonavero Institute, UNESCO, and the Reuters Institute for the Study of Journalism (Department of Politics and International Relations, University of Oxford), discusses the challenges for freedom of expression, access to information, privacy and related rights posed by measures adopted by governments around the world in response to the COVID-19 pandemic. The panel is made up of Justice Edward Amoako Asante (President of the ECOWAS Court of Justice), Judge Darian Pavli (Judge at the European Court of Human Rights), Mr. Joan Barata (UNESCO expert; Center for Internet and Society and Cyber Policy Center, Stanford University) and Ms. Jennifer Robinson (prominent lawyer with expertise in media law, public law and international law) as speakers, and is chaired by Professor Kate O’ Regan (Director of the Bonavero Institute of Human Rights).

The Battle Over Free Speech: Are Trigger Warnings, Safe Spaces & No-Platforming Harming Young Minds?
This YouTube video by Intelligence Squared features a discussion with scholars representing all sides of the debate over trigger warnings. Speakers include social psychologist Jonathan Haidt, the former chief rabbi of the United Hebrew Congregations of the Commonwealth Jonathan Sacks, author and activist Eleanor Penny, and sociologist Kehinde Andrews, one of the UK’s leading thinkers on race and the history of racism.  They explore why universities in America and increasingly in Britain are introducing measures to protect students from speech and texts they might find harmful. Safe spaces, trigger warnings and no-platforming are now campus buzzwords. Jonathan Haidt argues that “the culture of safety,” may be well intentioned, but it is hampering the development of young people and leaving them unprepared for adult life, with devastating consequences for them, for the companies that will soon hire them, and for society at large. Haidt’s critics argue that the measures are designed to help students and provide a public forum where the voices of the historically marginalized are given the same weight as those of more privileged groups. They explain that warnings to students that what they’re about to read or hear might be disturbing are not an attempt to censor classic literature, but a call for consideration and sensitivity.

Post Scriptum

● The Future of Free Speech has published the findings of a global survey, “Who Cares About Free Speech?” Respondents in 33 countries answered eight questions “about the willingness to allow controversial types of speech, such as the ability to offend religion and minority groups and to publish information that could destabilize the national economy.” The study found that “most nations demonstrate stable or even increased levels of support” but “that the acceptance of unrestricted criticism of the government has declined in the US.” A majority also favor some form of regulation of social media: “People in two-thirds of the countries surveyed favor such regulation to be carried out by social media companies themselves while a plurality in the rest prefer social media companies along with national governments to be responsible for regulating the content.”

This newsletter is reproduced with the permission of Global Freedom of Expression.  For an archive of previous newsletters, see here.