October 6, 2020 1:16PM

Rights against Speech

Why do social media companies have the right to suppress speech on their platforms? In the United States, they may do so because the U.S. Supreme Court has said the First Amendment does not apply to private companies. But the companies want more than sheer discretion, and they seem unwilling to say, “we’re maximizing shareholder value which requires suppressing speech.” Indeed, they seem to want an answer to the question: why should we suppress speech?

This desire for a broader foundation for content moderation has led Facebook to the door of the United Nations and international law. Need to ban “hate speech”? Article 20 of the International Covenant of Civil and Political Rights requires it. And not just of governments. Facebook has signed the Guiding Principles on Business and Human Rights which requires businesses to “respect” human rights.

Susan Benesch treats the issues implicit in mixing content moderation and international law in her essay “But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies.” The “human rights law” she would have platforms adopt may be found in Articles 19 and 20 of the International Covenant of Civil and Political Rights. Benesch argues that “human rights law,” (hereafter IHRL) suitably modified, can improve and legitimate content moderation. I have my doubts.

International human rights does have a First Amendment of sorts. Article 19 of the ICCPR states:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Benesch adds that the ICCPR explicitly prohibits only two kinds of speech: “propaganda for war” and what we have come to call “hate speech” (both in its Article 20). In aggregate these two banned forms of expression “represent only a tiny proportion of all the content that companies restrict under their own rules.” That’s correct. “Hate speech” receives a lot of attention, but it is actually a small part of all speech on social media and of all speech restricted by platform moderators..

In any case, Benesch believes bans on propaganda for war and “hate speech” will be quite limited because any restrictions must be “provided by law [and]…necessary.” Like others, she believes the terms “by law” and “necessary” support a tripartite test for any restrictions on speech under ICCPR. As I noted in my earlier post, this test demands that a restriction on expression must be clear enough to follow, must serve a legitimate state purpose, and must be the least intrusive means to that end.

Benesch argues that IHRL is likely to improve social media speech regulation. As noted, if only two kinds of speech may be banned, many social media speech restrictions must fall. And the remaining restrictions, strictly grounded in the ICCPR, might become more legitimate and acceptable to users. Moreover, IHR would give the companies “a stronger basis to resist improper pressure from states to suppress speech.” Benesch may not be correct, however, that platform adoption of international law would prohibit only two kinds of speech.

Article 19 of the ICCPR also states that free expression “carries with it special duties and responsibilities.” It may therefore be subject to certain restrictions. But the grounds for restriction seem limited: “respect of the rights or reputations of others” and “the protection of national security or of public order (ordre public), or of public health or morals.” Such are the legitimate purposes demanded by the tripartite test noted earlier.

Propaganda for war and “hate speech” are fairly concrete terms, however controversial. “Rights” is a pure abstraction. How can we attach some concrete meaning to this term? Benesch lists the sources of rights under international law:

the International Bill of Rights and the International Labor Organization’s Declaration on Fundamental Principles and Rights at Work. For speech regulation the relevant documents are in the Bill of Rights, which includes the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).

That’s a lot of documents and a lot of rights presumably and thus a lot of reasons to restrict speech. And we are still quite abstract.

Fortunately the United Nations has provided us with a brief compendium of human rights. By my count there are 21 human rights including “freedom of opinion and expression” and another dozen “Human Rights Protections of Specific Groups.” Among the rights discussed are “the right to an adequate standard of living,” “the right to social security,” “the right to health,” and “the rights to work and to just and favorable conditions of work.”

In other words, governments or social media companies do not lack for justifications for restricting speech, all legitimated by international law which the companies themselves have endorsed. The “legitimate purpose” part of the tripartite test may be satisfied in many ways. Indeed, the right to free expression itself seems to be just one right among many, any one of which in some circumstances might trump “voice.”

Yet some experts might reply that free expression is different: restrictions on voice must be legal and proportionate. Perhaps when put in the balance against speech all thirty of those rights recognized by IHRL will turn out to be too vague and too intrusive to justify limits on voice. But the rights against speech are many, and time is long. I assume speech will give way later if not sooner.

Whether international law turns out to be an improvement on social media community standards depends less on the content of human rights law and more on how those rights are weighed against free speech. IHRL may turn out to be the root cause of illiberalism without borders, but it will require assistance from social media companies and their helpers, the putative proximate causes of a decline of free speech. On the other hand, the tripartite test may ultimately vindicate a broad right to free expression online if the interpreters of IHRL care more about speech than they do the 30‐​odd rights that might justify limitations on it. But giving primacy to free expression among our rights would be a more secure path forward and that international law does not do. The tech companies and their content moderators may recognize such primacy. Will they?