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.

Highlights from 2022!

Throughout 2022 Global Freedom of Expression sought out the most influential and trend setting court rulings on a range of issues including violence against journalists, disinformation, privacy, content moderation, and the “right to be forgotten,” among many others. It was a busy time during which more than 250 new case analyses were added to the database, the initiative hosted 12 events and launched the Global Freedom of Expression Special Collection paper series which aims to provide a global outlook on some of the most significant legal decisions featured in the database which were adopted by national and international tribunals relating to freedom of expression. The Global Freedom of Expression Prizes further recognized judicial decisions and legal representation which promoted international legal norms. Following are highlights from the past year in case you missed any of them. We have many exciting new publications in the pipeline for 2023 which we will share in the coming weeks!

Notable Events

● REGULATING THE ONLINE PUBLIC SPHERE: From Decentralized Networks to Public Regulation. The conference held on October 3 & 4 brought together a diverse group of panelists, comprised of leading academics, industry experts, and notable activists to explore the new challenges that the regulation of the global public sphere poses. Day one focused on new models of decentralized networks and their importance in the current social media ecosystem; and day 2 broke down the different regional approaches to public and private regulation of content moderation on the Internet. View the video of the event, the agenda and more on the conference webpage. 

● Laughing Matters? Humor and Free Speech in the Digital Age. This symposium hosted by Global Freedom of ExpressionTemple Law School, and the University of Groningen with support from the Dutch Research Council explored the legal boundaries of humor and free speech in the digital age. The day-long event showcased interdisciplinary collaboration between 14 practicing lawyers, legal scholars, and humanities-oriented humor researchers who are working on mapping the juridical handling of humor across different regions. View the video of the event, the agenda and more on the conference webpage.

● Workshops on International Case Law and the Protection of Journalists. Global Freedom of Expression hosted a series of six workshops focusing on judicial trends relating to violence against journalists in Europe, Asia, Middle East & Africa (MENA) as well as a workshop on universal human rights standards. The workshops were based on coordinated research done with network partners which resulted in the addition of 43 new case analyses to the database. The workshops engaged lawyers, journalists, and activists on regional jurisprudence, international human rights standards, and best practices. Videos of the workshops are available below:

Chapter 1: Human Rights Standards for the Protection of Journalists in the Inter-American System & States’ Best Practices

Chapter 2: Universal Human Rights Standards and International Case-Law related to the Protection of Journalists

Chapter 3: Human Rights Standards for the Protection of Journalists in Asia & States’ Best Practices

Chapter 4: Human Rights Standards for the Protection of Journalists in Africa/MENA Region & States’ Best Practices

Chapter 5: Human Rights Standards for the Protection of Journalists in Europe & States’ Best Practices

Chapter 6: Protecting the Press: International Standards & Judicial Trends in Cases of Violence Against Journalists

Notable Publications

Special Collection on the Case Law on Freedom of Expression

● Inter-American System of Human Rights

● African System of Human and Peoples’ Rights

● Grand Chamber of the European Court of Human Rights

● The Decisions of the Oversight Board from the Perspective of International Human Rights Law

● Meta’s Oversight Board Cases

● Does our past have a right to be forgotten by the Internet? Case-law on the So-Called Right to be Forgotten

2022 Global Freedom of Expression Prizes 
Significant Legal Ruling
The Community Court of Justice of the Economic Community of West African States won for its ruling in Amnesty International & Ors v. The Togolese Republic where the Court held that the Togolese government violated the applicants’ right to freedom of expression by shutting down the internet during September 2017 protests. The Court found that access to the internet is a “derivative right” as it “enhances the exercise of freedom of expression,” and hence internet access is “a right that requires protection of the law.”Excellence in Legal Services
Foundation for Press Freedom (FLIP) & Center for Justice and International Law (CEJIL) won for representing journalist Jineth Bedoya Lima before the Inter-American Court of Human Rights in Bedoya Lima v. Colombia . Through this landmark judgment, FLIP and CEJIL highlighted the specific obstacles women journalists face, showed how sexual violence has been used as a tool for silencing and punishing women in the context of the armed conflict and demonstrated how this has a chilling effect on their journalism.

Decisions this Week

United States
Dominion v. Fox
Decision Date: June 21, 2022
The Superior Court of the State of Delaware gave a decision upon the motion to dismiss filed by Fox Corporation and Fox Broadcasting Company in one of the several cases before the court relating to media coverage of Dominion’s role in the 2020 presidential election. In the present case, Dominion sought to extend the liability for allegedly defamatory statements published by the Fox News Network to its parent company, Fox Corporation, and a wholly owned subsidiary of Fox Corporation, the Fox Broadcasting Company. The Court denied the motion to dismiss filed by the defendants, ruling that Dominion adequately pleads actual malice on behalf of Fox Corporation and that the latter is directly liable for the allegedly defamatory statements published by Fox News. On the other hand, the Court granted the motion to dismiss with regards to Fox Broadcasting, as Dominion failed in adequately pleading “actual malice” on the part of Fox Broadcasting.

Trump v. Twitter
Decision Date: May 6, 2022
The United States District Court for the Northern District of California was asked to decide on the question of the violation of the right to free speech under the First Amendment to the United States Constitution in the backdrop of the “state-action doctrine” elaborated and backed by various precedents. A suit was filed by former U.S. President Donald J. Trump and others against Twitter on behalf of themselves and a class of Twitter users whose accounts were suspended or banned for different reasons allocated to respective individuals including “the risk of further incitement of violence” which led to the permanent suspension of the account of the former president. While dismissing the amended complaint in its entirety, the court also pointed out that the terms of services of Twitter gave Twitter contractual permission to act as it saw fit with respect to any account or content for any or no reason thereby making its ostensible motives irrelevant for a deceptive-practices claim.

Thompson v. Trump
Decision Date: February 18, 2022
The United States district court for the district of Columbia ruled that “only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a president’s speech”, and that “even Presidents could not avoid liability for speech that falls outside the expansive reach of the First Amendment.” The court was tasked with determining the civil liability of individuals involved in the January 6, 2021 events in the U.S. Capitol building. The plaintiffs were eleven members of the House of Representatives and two capitol police officers. Among the defendants were former president Donald Trump, his son Donald J. Trump Jr., his counsel Rudolph W. Giuliani, as well as various organized militia groups, and the leader of one these groups – the Proud Boys – Enrique Tarrio. The main reliance was placed on 42 U.S.C. § 1985(1), also known as the Ku Klux Klan Act of 1871, which was aimed at eliminating extra-legal violence committed by white supremacist and vigilante groups as well proscribing conspiracies that, by means of force, intimidation, or threats, prevent federal officers from discharging their duties or accepting or holding office. Former president Trump contended absolute immunity since his alleged conduct fell within the “outer perimeter” of his official presidential responsibilities and asserted that his alleged actions involved speech on matters of public concern and therefore were well within the President’s duties. The court denied former president Trump’s motion to dismiss on the grounds that the tweets leading up to the January 6 rally and the words spoken by the former president reflect an electoral purpose, not speech in furtherance of any official duty, therefore not falling under the president’s immunity from damages liability predicated on his official acts. The Court then found in the former president’s January 6 speech  “an implicit call for imminent violence or lawlessness”, in application of the Brandenburg test. The court also denied the Oath Keepers’ and Tarrio’s motions to dismiss finding them liable for the riots, while the other defendants were held not liable. The court analyzed the Brandenburg case and concluded that the key to the Brandenburg exception was incitement, in other terms whether the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The court stated that in making the requisite evaluation, both the words spoken and the context play a decisive role.

United States of America v. Ethan Nordean
Decision Date: December 28, 2021
Justice Timothy J Kelly of the United States District Court of Columbia denied the motion of the defendants which challenged the First Superseding Indictment. The First Superseding Indictment had charged the defendants of conspiring “to stop, delay, or hinder Congress’s certification of the Electoral College vote,” in violation of 18 U.S.C. § 1512(c)(2), and “to obstruct and interfere with law enforcement officers engaged in their official duties to protect the Capitol,” in violation of 18 U.S.C. § 231(a)(3) for their acts of January 6, 2021. The defendants had argued that these provisions infringed their First Amendment rights, however, the court held that the “corrupt” acts did not fall within the ambit of speech and reiterated that, “when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms”.

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.

Citizenship Education in the Global Digital Age
This thematic paper was prepared by UNESCO’s Section on Global Citizenship and Peace Education with contributions from Laura Engel and Evelyne Koumtingue. It aims to support
the UN Sustainable Development Goals (SDGs), in particular, SDG 4 (inclusive and equitable quality education and lifelong learning opportunities for all) and SDG 16 (just, peaceful and inclusive societies for sustainable development) by empowering students and educators with “the knowledge, values, capacities, and dispositions needed to address both the opportunities and the challenges of the digital revolution at a time of mass migration, climate degradation and the unsustainable use of natural resources, increased inequalities, growing global divisions and marked fragility of democratic institutions.” The paper explains the main opportunities, challenges, and risks involved in using digital tools in education for international understanding, cooperation and peace, and education relating to human rights and fundamental freedoms.

Post Scriptum

January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution
This paper by Alan Z. Rozenshtein, University of Minnesota Law School, and Jed Handelsman Shugerman, Fordham Law School, explores some of the legal issues raised in the U.S. case law noted above under Decisions This Week. It is available at SSRN.

A prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to the remove the magnetometers from the entrances to the rally and his repeated attempts to join the crowd at the Capitol.

This Article proposes a requirement of overt acts for the prosecution of ambiguously inciting speech. Trump’s overt acts offer a principled basis for criminal liability for Trump’s speech, while preserving Brandenburg’s prophylactic approach to protecting against the overcriminalization of speech. The prosecutorial use of overt acts also accords with historical practice going back to the Founding, when the Framers, influenced by prevolutionary English practice, required evidence of overt acts for the most serious of crimes: treason.

In an age of increasing political polarization and violence, drawing a line between permitted and prohibited by our political officials is of the utmost importance. This essay is an attempt to make that line clearer.

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