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.

From the “land of liberty” to “Europe’s last dictatorship,” these days, global freedom of expression is shrinking.

Last week, US President Donald Trump signed a tall stack of executive orders. Some of them affect freedom of expression. Index on Censorship points to Restoring Freedom of Speech and Ending Federal Censorship, which accuses President Biden’s administration of “censoring Americans’ speech on online platforms.” The Electronic Frontier Foundation states the directive “reeks of political vindictiveness, not a true effort to limit improper government actions.” Alex Abdo of the Knight First Amendment Institute analyzes the order’s three main sections in detail, warning that the directive might enable the new administration’s own “jawboning.”

What does it mean to protect freedom of expression in the US today? ARTICLE 19 outlines four freedom of expression priorities for the next four years with Trump in office: 1) Defending media freedom and journalists’ safety, 2) Safeguarding online free speech – for all, 3) Protecting human rights in the digital environment, and 4) Ensuring the rights of protesters and civil society. ARTICLE 19 stands firm, “[F]ree speech does not grant the right to harass, target, and discriminate with impunity.”

One of the cases we are featuring this week speaks to similar concerns – misuse of presidential authority – but has a different outcome. In October 2023, the Brazilian Superior Electoral Court held that former President Jair Bolsonaro and then Vice-Presidential candidate Walter Souza Braga Netto were ineligible to run for office for eight years due to abuse of political and economic power. The Court found that by blurring the lines between an official event and the electoral campaign in 2022, the two violated the principles of electoral equality and fairness.

This past weekend, in blatant disregard for the rule of law and alongside rampant abuse of political power, Alyaksandr Lukashenka secured his seventh presidential term in Belarus. The election was widely condemned as a sham: the crackdown on civil society continues, more than 1,200 political prisoners remain behind bars, and the authorities consistently target any form of dissent with anti-extremism laws. Citing 589 arrests of media workers since 2020, 43 journalists currently deprived of liberty, and hundreds of media professionals in forced exile, Reporters Without Borders filed a complaint with the International Criminal Court against Lukashenka for crimes against humanity.

The other two cases we bring this week are US rulings. In TikTok Inc. v. Garland, the Supreme Court held that the provisions of an Act that banned TikTok nationwide, if the China-based company failed to sell it, did not violate the First Amendment. In Ohio Telecom Association v. Federal Communications Commission (FCC), classifying broadband as an “information service,” the Court of Appeals for the Sixth Circuit limited the FCC’s authority to impose net neutrality regulations.

Daphne Caruana Galizia Family Reacts to Yorgen Fenech Bail: “Justice System Failed”

The family of assassinated Maltese journalist Daphne Caruana Galizia condemns the recent release of Yorgen Fenech, who is accused of commissioning her murder, on bail. “The blame for killers being released on bail without any trial date in sight lies with the prime minister and the minister of justice,” said Matthew Caruana Galizia, Daphne’s son. “They had five years to fix the system and did nothing.”

United States
TikTok Inc. v. Garland; Firebaugh v. Garland
Decision Date: January 17, 2025
The Supreme Court of the United States held that the provisions of an Act that made it unlawful for the social media platform TikTok to continue to provide services to American users, without divesture of its US operations from Chinese control, did not violate First Amendment rights. The American company that operates TikTok in the US and its parent company, Byte Dance Ltd, along with two sets of TikTok users and creators had challenged the constitutionality of the Act. The court of first instance held that there was no violation of First Amendment rights as the government’s national security justifications were compelling and that the Act was narrowly tailored to further those interests. On appeal, the Court of Appeals denied the petition. The Supreme Court found that the Act’s provisions were facially content-neutral and did not trigger strict scrutiny. It held that the government’s interest in protecting the data collection of American TikTok users was reasonable and that, as the Act did not create an outright ban of TikTok, it was a proportionate method to achieve its goal.

Ohio Telecom Association v. Federal Communications Commission
Decision Date: January 2, 2025
The United States Court of Appeals for the Sixth Circuit reviewed the Federal Communications Commission’s (FCC) 2024 Safeguarding and Securing the Open Internet Order, which reclassified broadband internet services as “telecommunications services” under Title II of the Communications Act, imposing net neutrality requirements. The Court examined whether broadband services qualified as “telecommunications services” or “information services” and whether mobile broadband could be classified as a “commercial mobile service” under Title III. Drawing on statutory interpretation, legislative intent, and precedents like National Cable & Telecommunications Association v. Brand X and Loper Bright Enterprises v. Raimondo, the Court held that broadband services fell under the “information services” category and that mobile broadband was not interconnected with the public switched network. The Court criticized the FCC’s inconsistent regulatory shifts, found the order exceeded the FCC’s statutory authority, and deemed it arbitrary and capricious under the Administrative Procedure Act. It granted the petitions for review, setting aside the FCC’s order, and emphasized that significant regulatory changes require explicit congressional authorization.

Brazil
The Case of Bolsonaro’s and Braga Netto’s Ineligibility
Decision Date: October 31, 2023
The Brazilian Superior Electoral Court (TSE) declared former Brazilian President Jair Bolsonaro and then Vice-Presidential candidate Walter Souza Braga Netto ineligible to run for office for eight years due to abuse of political and economic power. The Brazilian government had held civic-military parades to commemorate the Bicentennial of Independence and Bolsonaro – with Braga Netto’s approval, who accompanied him – used his position as President of the Republic to call on supporters to attend both the official event and subsequent rallies, which were fully broadcast by the public TV station. The TSE found that Bolsonaro and Braga Netto illicitly blurred the lines between the official event and the electoral campaign, violating the principles of electoral equality and fairness and had used public resources for political campaigning. The Court recognized that the internet intensified these illicit actions by amplifying the overlap between public events and campaign efforts.

● US: President Trump’s Attempt to “Save” TikTok Is a Power-Grab That Subverts Free Speech, by Xiangnong (George) Wang. After the US Supreme Court upheld the Protecting Americans from Foreign Adversary Controlled Applications Act in TikTok Inc. v. Garland, leading to a brief removal of the platform from app stores in the US, Trump promised to issue an executive order that would delay the Act’s enforcement. “It’s a strong stand for the First Amendment and against arbitrary censorship,” read TikTok’s response. Trump delivered the order on his first day in office. In a blog post for Knight First Amendment, Xiangnong (George) Wang, a staff attorney at the Institute, does not see this latest TikTok development as a win for free speech. “I strongly opposed the TikTok ban on First Amendment grounds,” Wang writes. “Trump’s order, however, is a lawless assertion of not just executive power, but personal power.”

● Romania: Will the DSA Save Democracy? The Test of the Recent Presidential Election, by Joan Barata and Elena Lazăr. Last month, the Constitutional Court of Romania annulled the country’s presidential election, held in early December 2024 and marred by concerns over cyberattacks, Russian meddling, and unlawful campaign financing on TikTok. The Court found that the election was full of irregularities due to the manipulation of digital technologies by one candidate, Călin Georgescu. The European Commission followed by opening formal proceedings against TikTok “on election risks” under the Digital Services Act (DSA). In this article for Tech Policy Press, Joan Barata, Senior Fellow at The Future of Free Speech, and lawyer Elena Lazăr argue that the DSA lacks “the definitive set of rules establishing the mechanisms that will guarantee […] the completely fair and transparent development of election processes.”

● South Sudan: Authorities Must Restore Access to Social Media and Uphold Human Rights. Members of the #KeepItOn coalition call on the authorities of South Sudan to immediately stop blocking social media access. The government claims it imposed the shutdown to halt the dissemination of videos that show the South Sudanese nationals being killed allegedly by the Sudanese Armed Forces in Wad Madani, a city that neighbors Sudan. In response to those videos, violent protests erupted in South Sudan, with attacks against Sudanese nationals. The #KeepItOn coalition underscores the critical role of social media in times of crises and cites international and regional freedom of expression standards, including the UN Human Rights Committee’s General Comment No. 34, the 2016 Resolution of the African Commission on Human and Peoples’ Rights, and the 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa.

● Iraq: Balgh Platform Marks Two Years as a Tool of Repression. SMEX, Access Now, ARTICLE 19, and seven other rights organizations urge the Iraqi government to cease curtailing freedom of expression through the use of the Balgh platform, which led to the persecution of content creators and activists. The Interior Ministry of Iraq launched the Balgh (meaning “report” in Arabic) platform two years ago to supposedly combat “indecent content” on social media by allowing people to report such material. Soon after, a committee tasked with monitoring online speech was also established. The joint statement points to “widespread public surveillance” and more than 150,000 complaints lodged by August 2024, accompanied by dozens of arrests and criminal cases. INSM for Digital Rights found that the legal actions over “indecent content” disproportionately target women.

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

In Focus: Security and Main Digital Threats in Latin America, by Valentín Díaz. The report was put together by the Latin American Observatory of Digital Threats (OLAD), an alliance of organizations – Derechos Digitales among them – defending digital rights and investigating digital security in Latin America. A “synthesis” of the OLAD members’ work from December 2023 to May 2024, the report builds on two methods: 1) context monitoring, which makes a joint effort to examine the digital security context in the region, and 2) data schematization, which concerns the cases documented by each organization of the alliance individually – 411 cases in total. The issues addressed include surveillance and espionage, online gender-based violence, critical infrastructure attacks, and other online freedom of expression violations in the countries where the OLAD organizations are based: Bolivia, Brazil, Colombia, Ecuador, El Salvador, Mexico, Nicaragua, and Venezuela.

Speech Certainty: Algorithmic Speech and the Limits of the First Amendment, by Mackenzie Austin and Max Levy. Published by Stanford Law Review, the article refers to the principle of “speech certainty” – an idea that what makes speech is the speaker knowing what they said and when they said it – rooted “in the text, history, and purpose of the First Amendment.” Does the First Amendment protect the output of machine learning algorithms? Based on the speech certainty principle, the authors argue it does not. “By failing to distinguish between traditional and machine learning algorithms,” they write, “we risk sleepwalking into a radical departure from centuries of First Amendment jurisprudence.”

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