Entitled

2: Better Off Said

Episode Summary

Free speech is one of those all important rights but one whose scope changes over time. Today, it is more likely to take place behind a screen rather than in the town square. What does the right to speak freely really look like when we are speaking in likes, comment bubbles and Tiktok videos? In this episode of Entitled, we explore freedom of speech, how and whether we still have it. We talk to Vietnamese pop star, MaiKhoi, an Artist Protection Fund fellow in residence at the University of Pittsburgh, who went from being dubbed the Vietnamese “Lady Gaga” to an exiled free speech activist, and to David Kaye, a UN expert on freedom of opinion and expression. Who’s protecting the right to free speech now that companies like Facebook, Twitter and Instagram control the spaces where speech takes place?

Episode Transcription

Claudia Flores:[00:00:00]In 2010, the singer known as Mai Khoi was about to become one of Vietnam's most famous pop stars. That year, she won the country's highest music awards for this track.[00:00:09][9.8]

Mai Khoi's Song "Vietnam":[00:00:13] Translated lyrics:[I'm a Girl from Vietnam, I'm writing a song about Vietnam, I want to sing about Vietnam][00:00:16][2.7]

Claudia Flores:[00:00:18]The lyrics translate to I'm a Girl from Vietnam, I'm writing a song about Vietnam, I want to sing about Vietnam, it's literally a love song to her country. And in a single party, communist state like Vietnam, it was pretty popular among government officials. Mai Khoi landed huge performances for crowds of dignitaries, regular shows for screaming teens. She was all over magazines and TV. She had a major record deal and she was dubbed the Lady Gaga of Vietnam. But today, Mai Khoi sounds a little different. [Mai Khoi Singing] This is Mai Khoi in 2017. The song is called Reeducation Camp. She put it out under a new name, Mai Khoi and the Dissidents. The lyrics could not be more different. She's accusing the people who run Vietnam's government reeducation camps of being traitors to the people, suppressing the truth. She calls on them to repent. These days, Mai Khoi is less like Lady Gaga and more like the Russian punk activist band, Pussy Riot. She is one of the country's most outspoken activists for the right to free speech and one of the government's key political targets. She has been so persecuted she had to leave the country. So how did this pop star turn from government darling to political dissident? The story tells us a lot about the right and fight for free speech and what it looks like in today's online, sprawling, constantly buzzing global conversation. I'm Claudia Flores.[00:02:06][107.7]

Tom Ginsburg:[00:02:07]And I'm Tom Ginsberg.[00:02:07][0.4]

Claudia Flores:[00:02:08]And this is Entitled, a Podcast about why rights matter and what's the matter with rights. Today, the right to free speech on stage and online.[00:02:17][9.5]

Tom Ginsburg:[00:02:24]So free expression, Claudia, it's a pretty big one. Most people would agree it's one of the most fundamental human rights critical to any functioning society and particularly any functioning democratic society.[00:02:34][10.0]

Claudia Flores:[00:02:34]Yeah, that's right. And I think it's also worth asking what it is that we're trying to protect when we protect the right to free speech. I think one of the things that is important for those who value free speech is the idea of debate. But we've made some sacrifices and some choices in this country. Right. Like, for example, hate speech, which is prohibited in a lot of other countries, we actually allow in a lot of situations.[00:02:56][21.5]

Tom Ginsburg:[00:02:57]You know, the way I like to think about this is that when our founding fathers were writing the Constitution, they had a very specific threat in mind. And that, of course, was the government. They were really worried about the government coming in and shutting down your printing press. And that's maybe not the biggest threat today. Of course, we have a wide variety of approaches that other countries have taken in thinking about what speech can do and what its proper scope should be.[00:03:21][23.8]

Claudia Flores:[00:03:21]Exactly. And in addition to that, there's also now private actors that have quite a bit of power over how speech is spoken. And so we're talking about the online space where companies like Facebook now are playing the government role in a way in determining what speech is allowed and what speech isn't.[00:03:38][16.7]

Tom Ginsburg:[00:03:38]Right. So Patrick Henry could come back and he wouldn't be so worried about the government shutting down a printing press so much as a big online company, limiting his ability to speak in what's really become a public forum.[00:03:50][11.5]

Claudia Flores:[00:03:50]Exactly. And the same considerations now exist in the online space. Is Facebook going to allow things like hate speech? Is Facebook going to restrict certain kinds of speech to ensure that it's a certain kind of community? Or is it going to allow any kind of speech and prioritize speech itself?[00:04:05][14.9]

Tom Ginsburg:[00:04:06]And of course, its primary interest is really in making money and increasing its market share. I mean, Facebook has something like four billion users and that's close to half the people on Earth. It's really unprecedented to have a single company that's engaged with so many people bigger than any other country and with more regulatory power than most governments would be able to muster.[00:04:26][20.4]

Claudia Flores:[00:04:27]And in a lot of countries, Facebook is the Internet. So all conversations, all dialog, all information is coming through Facebook.[00:04:34][7.3]

Tom Ginsburg:[00:04:35]Yeah, one of the things I noticed when I was traveling in Southeast Asia, like in Vietnam, which we're going to talk about today, is that many people just think of Facebook as the entire internet. They use it for every single thing they would need to do online. So they don't use any messenger other than Facebook Messenger. They don't really think of email as a separate program or anything like that. For any search they want to do, they do it on Facebook, no Google or any alternative. And of course, there's the Facebook Marketplace. So they're buying and selling stuff on it, too. So, you know, really their entire lives go through a single platform.[00:05:07][32.3]

Claudia Flores:[00:05:08]And that brings us back to Vietnam.[00:05:09][1.1]

Mai Khoi:[00:05:10]Hi, everyone. My name is Mai Khoi.[00:05:14][3.8]

Claudia Flores:[00:05:15]That's right. We've got Mai Khoi on the podcast.[00:05:17][2.1]

Mai Khoi:[00:05:18]I am a Vietnamese artist activist. [00:05:21][3.2]

Claudia Flores:[00:05:21]Today, Mai Khoi is a fellow at the University of Pittsburgh, where she's part of a program called Scholars at Risk. She hasn't been back to Vietnam since the last time the police threatened her in 2019. But I asked her to take us back to the beginning. How did this all start?[00:05:35][13.4]

Mai Khoi:[00:05:35]When I was a pop star, I was well behaved. I follow my moves, but every time I wanted to perform or release an album, I had to submit all of my artworks for the government censorship system because the government own everything, they own and control everything to brainwash and control people's thoughts. So artists like me is targeted. But I did follow them for years.[00:06:13][37.5]

Claudia Flores:[00:06:14]What was the final straw for you? What made you finally decide that you couldn't stand it anymore? Was it did something happen or you just reached that point?[00:06:22][7.7]

Mai Khoi:[00:06:23]I was performing in the dress rehearsal in front of five censors to ask for the permission before we can perform publicly. But suddenly one of them stood up and shouted at me, "Stop. Who allowed you to wear that dress? Get changed, or I can ban you from singing forever." And I couldn't do anything to react at that moment. But in my head, I thought, this is the last time I will let them sensor me. And then since that I involved in activism. In 2016, I nominated myself for the National Assembly election to raise awareness for people about their right to participate in politics.[00:07:19][56.0]

Tom Ginsburg:[00:07:23]So the National Assembly's like the Congress of Vietnam, and even though it's a communist country, the government does allow some people to run as independents. Mai Khoi nominated herself as an independent candidate. As soon as she submitted her nomination, the police surrounded her house and she was put under surveillance. Later, officials made up an excuse about a problem with the paperwork and they threw out her application to run for office and since there was a lot of upset among government censors over her clothing choices at the time. One official said to her, how can we allow a person who doesn't wear a bra into parliament?[00:07:54][31.1]

Mai Khoi:[00:07:55]They banned me from singing, from appearing in public. They raid my concerts. They fine me. I was under surveillance 24/7. Always have people follow me and they isolated me. They talk with my friends. They tell them, don't hang out with Mai Khoi anymore because you will get problem from the police. They evicted me from my house and they detained me two times already.[00:08:30][34.5]

Tom Ginsburg:[00:08:31]Were you able to sort of react through your art? In other words, did you sing about these issues, the censorship, in your art?[00:08:37][6.4]

Mai Khoi:[00:08:38]Yeah, I sing about what I've seen, what I feel. I've wrote a song about protest. I wrote a song about human rights in politics, use music to raise awareness for people about freedom of expression. And I can use live stream on Facebook to talk with the audience and release my new songs. And sometimes I still organize secret concerts. I will not ask for their permission anymore. I just create new songs and release it online. And my Facebook has a lot of followers. So every time I saw the secret police this whole following me, I just opened the livestream and filming them directly. So that was the way I protect myself.[00:09:33][55.1]

Claudia Flores:[00:09:34]So it's interesting. You used social media as a way of protecting yourself, right? By having a video account in the moment of what was happening. That sort of kept you from being harassed more than you would have been?[00:09:48][13.8]

Mai Khoi:[00:09:48]Yes, I use I use Facebook most of the time because in Vietnam we have sixty eight million users using Facebook. We thought that we could speak freely, we could organize the protest or we could protest on Facebook. But now it's not the safe place anymore. I could use live stream on Facebook to release my songs and do the concerts when I know I've banned from singing in public, but now I can't do it anymore. The government had the new law, cybersecurity law, that criminalized all of the online activities.[00:10:37][48.3]

Claudia Flores:[00:10:38]This new law that Mai Khoi mentioned is really important. So let's take a second to break that down.[00:10:42][4.1]

Tom Ginsburg:[00:10:43]Yeah. So in 2019, Vietnam passed a law requiring social media companies to remove content that is, quote unquote, inconsistent with the government. So basically anything they don't like. It also requires Facebook and Google to store their user data in the country, which means the government can access it.[00:11:01][17.9]

Claudia Flores:[00:11:01]And this is something that actually came up at a U.S. congressional hearing in 2018. Here's an exchange between Senator Marco Rubio and Facebook COO Sheryl Sandberg. [00:11:12][11.3]

Marco Rubio:[00:11:13] We're here todaybecause we learned and we've learned the hard way that social media that was largely seen as a tool for incredible good can be manipulated by bad actors to do harm. And so what we're asking you to do is to use the powers that you have within your platforms to crack down on certain users who are hostile actors, who are using disinformation or misinformation or hate speech for the purposes of sowing discord or interfering in our internal affairs. And that's a positive. Here's the problem, though, that we have to start thinking about. What happens when an authoritarian regime asks you to do that because their definition of disinformation or misinformation could actually be the truth. Their discord or what they define as discord would be things like defending human rights. Vietnam, by the way, where you do operate has new law beginning on 2019,January 1st, that will require you to store user data inside the country and hand over that data to the government of users suspected of anti-state activity. These principles of our democracy, do you support them only in the United States, or are these principles that you feel obligated to support around the world?[00:12:17][63.9]

Sheryl Sandberg:[00:12:18]We support these principles around the world. You mentioned Vietnam. We do not have servers in Vietnam, and with very minor exceptions of imminent threats that were happening, we've never turned over information to the Vietnamese government, including political information.[00:12:31][12.9]

Marco Rubio:[00:12:32]And you never will?[00:12:32][0.5]

Sheryl Sandberg:[00:12:34]We would not-[00:12:34][0.4]

Marco Rubio:[00:12:35]You would not agree to do so in order to operate?[00:12:37][1.5]

Sheryl Sandberg:[00:12:38]We would only operate in a country when we can do so in keeping with our values.[00:12:41][3.1]

Tom Ginsburg:[00:12:42]Interesting. So, for the record, what Sandberg said about Vietnam isn't true. Facebook is complying with Vietnamese law. It does rent servers in the country and in fact, it's dramatically increased its cooperation with the government over the past couple of years to crack down on speech in Vietnam, perhaps more than any other country in the world.[00:13:03][21.4]

Claudia Flores:[00:13:03]But Mai Khoi told us that the problem of censorship on Facebook goes even deeper and is far more complex than what it seems. She says there's a massive Facebook group called E47 that's filled with police, military and other Communist Party loyalists who collaborate to crack down on anti-government speech. And what they do essentially is they swamp Facebook's automated complaint system and get posts critical of the government blocked. Sometimes they actually even post onto an individual's page and then report that post. And a number of activists have been imprisoned for things they say on Facebook, sometimes for years. Mai Khoi herself has been detained for her posts on Facebook. She says the police held her for hours at a station to get her to, quote, unquote, verify her account.[00:13:47][43.5]

Tom Ginsburg:[00:13:47]Facebook officials say they're working on the problem. And Mai Khoi has managed to get a couple of meetings with them. But she says that in the past several months, the company has just stopped responding to her.[00:13:56][8.6]

Mai Khoi:[00:13:57]I told to done that. With Vietnamese, Facebook is very important because that is the only place we can talk freely and now we are losing that space. I am so frustrated about how Facebook working with me because they actually didn't do anything.[00:14:19][22.3]

Claudia Flores:[00:14:21]I'm curious, because I know you've thought so much about this, Mai Khoi. What is the responsibility, in your opinion, of social media companies? What is it that social media companies should be doing in terms of the forum they provide for speech?[00:14:32][11.5]

Mai Khoi:[00:14:33]They should protect freedom of expression online. They should have some actions to restrict the group of the government supporters who abusing their rules or they have to change their rules. And they should have people to talk with civil society representative, not just work with the government.[00:15:00][26.9]

Claudia Flores:[00:15:02]Thank you, Mai Khoi. Thank you so, so much.[00:15:04][1.6]

Mai Khoi:[00:15:05]Thank you very much.[00:15:05][0.7]

Claudia Flores:[00:15:08]So the Vietnam market for Facebook is about a billion dollars in revenue. That's a lot of money, but it's not something that would really break Facebook if they were to leave. And the criticism that both Facebook and Twitter and other companies have received is that because they haven't pushed back, countries now feel like they can set whatever terms they want and they're learning from each other. But I wonder if Facebook executives have sort of sat themselves down and thought, we've got the potential for 10, 15, 20 countries that under the right circumstances, might want to enact the same kind of repression. In that case, the market share starts being significant and Facebook needs to think about whether or not it would have business consequences if they try to set a basic standard.[00:15:47][39.1]

Tom Ginsburg:[00:15:48]Well, I'm sure it would have business implications for them, because, you know, one of the things we noticed in the study of democracy is that there are a lot of countries where things are pretty fuzzy. They're between democracy and a dictatorship.[00:16:00][12.0]

Claudia Flores:[00:16:01]Yeah. So even though it seems like the best solution to protect speech is for Facebook to remove itself from markets like the Vietnam market, it doesn't seem like something they're going to do. So where does that leave us? Is there another way for Facebook and other companies to better enact values of free speech? Well, we're going to hear directly from the horse's mouth. Plus, get a recommendation from one of the world's leading experts on free speech, after the break. [00:16:27][25.9]

Mai Khoi's Music:[00:16:29] Vietnamese Lyrics [00:16:35][6.2]

Tom Ginsburg:[00:16:46]If you're getting a lot out of this podcast, there's another University of Chicago Podcast Network show you should check out. It's called Not Another Politics Podcast. Not Another Politics Podcast provides a fresh perspective on the biggest political stories, not through opinions and anecdotes, but through rigorous scholarship, massive data sets and a deep knowledge of theory. If you want to understand the political science behind the political headlines, listen to Not Another Politics Podcast, part of the University of Chicago Podcast Network. OK, so Claudia, we've been talking about Facebook for a while now. We heard that little bit from Sheryl Sandberg. But I think it's time to hear more from the company. What do the people in charge have to say about how online speech should be governed? How are they thinking through these problems?[00:17:34][48.4]

Claudia Flores:[00:17:35]Yeah, so a couple of trustees actually did a panel at a recent seminar, and it was quite enlightening. So these are trustees of the Facebook oversight board, also commonly known as the Facebook Court. And this is a board of political leaders, human rights activists and jurists that are picked by Facebook to deliberate user challenges to the company's decisions on content moderation. Listeners will probably be familiar with this because it's gotten a lot of press in the past several months for, quote unquote, "cases" like the decision about whether to ban former President Donald Trump from the platform.[00:18:09][33.8]

Tom Ginsburg:[00:18:09]So in the panel, the chair of the trust that manages the Facebook oversight board answered a question about how Facebook's community standards operate across borders in different legal and political jurisdictions, which have different views on things like free speech. This is what we were talking about with Mai Khoi. The chair's name is Paul Haaga, and here's a little bit of what he said.[00:18:29][19.9]

Paul Haaga:[00:18:30]Many local governments have laws that say you can't criticize the government. We don't have an algorithm, Facebook doesn't have an algorithm, that picks up criticism of local governments. So the way that issue gets to Facebook or the reviewers is, it only comes from the government or another user complaining and saying, "This is critical. Please take this down." And there is a practice there where there are local people, among the thirty-five thousand who then have a discussion with the government and uniformly argue that it should not be taken down simply because it has criticism of the government. Then oftentimes we are told they've been able to get the government to agree that, oh OK, you can leave it up. If they can't get them to agree, unfortunately, we would have to take it down because many of these are criminal laws and we have employees and consultants located in those countries. And so we would then reluctantly take it down, but not, A) not without a fight and we never take something down proactively that violated local law prohibiting criticism of the government. And whenever we estimate the benefits of social media, we often refer to the Arab Spring. It couldn't have happened without social media.[00:20:10][99.9]

Claudia Flores:[00:20:10]Wow. OK, so we need to point out the irony that under current rules, the social media's role in the Arab Spring would have never happened. They wouldn't have been able to organize because their posts or their communications would have been taken down.[00:20:21][11.2]

Tom Ginsburg:[00:20:22]Absolutely right. The Arab Spring was really a one off. And not only that, it didn't work out very well for most of the countries except in Tunisia, where the social media was not really a big factor. The Tunisian rebellion was sparked by a fruit vendor who self immolated. Facebook and other social media didn't really play a huge role. So I don't know, it's not really a great selling point for them.[00:20:43][20.4]

Claudia Flores:[00:20:43]All right. So let's dig in a little deeper here and let's hear from one of the world's leading experts on speech.[00:20:48][4.9]

Tom Ginsburg:[00:20:49]Yeah, so we're going to talk with David Kaye. He's a professor of law at UC Irvine and the author of a book called Speech Police: The Global Struggle to Govern the Internet.[00:20:57][8.6]

Claudia Flores:[00:20:58]And just as importantly, he is the former UN Special Rapporteur on Freedom of Opinion and Expression. That is a wordy title. I'm going to let him explain what it is.[00:21:08][9.6]

David Kaye:[00:21:09]So Special Rapporteurs are part of what the UN Human Rights Council, which is the central human rights institution of the UN system, call Special Procedures, which sounds like that would hurt. But it's a process by which the council appoints individuals to monitor different rights around the world. And so Special Rapporteurs, we monitor by communicating with governments, do thematic reporting on all sorts of issues to the Human Rights Council and the General Assembly. And then we would actually go to a country and examine the human rights situation in our particular area of mandate.[00:21:48][39.2]

Tom Ginsburg:[00:21:49]So the classic way of thinking about rights concerning expression, the focus is always on the state, right? Of course, we'rein this a different world

that you've written about. One where the digital providers and the social media companies become really important regulators. So how does that change the paradigm and how do we think about expression and speechin this world?[00:22:10][12.9]

David Kaye:[00:22:10] Yeah, that is such a great setup. I mean, the First Amendment is really directed toward the state. Congress shall make no law. Freedom of expression as a matter of human rights law, sort of flips it around. So Article 19 of both the Universal Declaration of Human Rights and the binding International Covenant on Civil and Political Rights says everyone shall enjoy these rights. So, it's you know human rights law gives us a way to think about rights that just flips things around. It's not just about limitations on the state. It's also about what the individual actually has a right to access.[00:22:49][39.2]

Tom Ginsburg:[00:22:50]What does that mean for these intermediaries? Right. I can imagine that they're in somewhat of a tight position, right. Because they have to facilitate speech. But of course, we have all kinds of problems that are generated fromthat. Speech on the platforms that hurtsother people, speech that violates the laws of a country. They're in kind of a tight place I guess.[00:23:09][4.9]

David Kaye:[00:23:10] T hey are in a tight place. I mean, their power in the United States, for example, or even in Europe, is very different from their power in a place like Cambodia or Myanmar, where they've kind of become the public square. What that means is that in those places where they have massive power, they're in a sense stepping into the shoes of public authorities. I mean, what they permit or don't permit has a huge impact on what people have access to. And so if we think about it that way, I think that helps make an argument for the companies using human rights law, both in terms of the robust freedom that it talks about, but also in terms of the kind of limitations that it allows. I mean, there's no mechanism that's binding on the companies to force them to do this, but it provides a way of thinking about expression and rights, that it's better than just relying on their terms of service, which is just their business interests.[00:24:11][61.0]

Claudia Flores:[00:24:12]David, I want to ask you, why is it so important to figure out what's the right way to protect speech in the social media online space when you're thinking about it globally?[00:24:20][8.1]

David Kaye:[00:24:20]Yeah, Mark Zuckerberg was interviewed and Zuckerberg said, you know, we need to look for some set of common global values because we're a global company. And I just, of course, laughed at that because, you know, those global values and the global vocabulary is already there. One hundred and seventy plus states are party to the ICCPR, the International Covenant on Civil and Political Rights. And that's a vocabulary that when people in Sudan or Belarus or you name it, go out to protest, they're actually making use of that vocabulary to claim rights. And so when you have these big companies with such massive power over public space, it seems natural for them to draw on this this human rights vocabulary. That doesn't mean they need to act like a state and that they don't get, as the Europeans think about, a kind of margin of appreciation as a company to think about these things. But the vocabulary, the framework, is just so much more appropriate in these kind of super dominant spaces that they're in to utilize that.[00:25:29][68.6]

Claudia Flores:[00:25:32]It's interesting the observation you just made. Tom and I, we spoke to Mai Khoi. You probably know who she is. She's a pop star from Vietnam that you know, quite an activist on these issues. And she very much held Facebook accountable for its failure to intervene in Vietnam's repressive tactics on social media. But the point you're making is also that wanting these companies to step up has also a downside. Right, because they're, they're going to be sort of deciding what the tactics are and where to put the resources. And so it is kind of a strange balance of where the state needs to direct and where we can expect private companies to really assist in a way that they kind of need to because they're so pervasive, but then don't have the same kinds of obligations and duties, at least under current international human rights legal schemes.[00:26:23][50.4]

David Kaye:[00:26:24]I think that's right. And when companies are engaging around the world, they do have to observe local law and national law. On the other hand, sometimes the companies, I think, minimize the power that they have, not just the power that they have to control speech, but also their power vis a vis countries or governments. If a company were to say to the state, look, we can't do that because it is a direct interference with our users rights and your obligations as we see them, and so kick us out of the country if you must. But we just can't do that because of our understanding of our human rights responsibilities. It's possible they would be kicked out or they'll be blocked in that country. I mean, that happened to Wikipedia in Turkey. But, you know, that's also an issue for the governments themselves because these platforms are enormously popular. And so, I'm not saying that that a company should test it all the time, but there is room for pushback that I think the companies often neglect to see.[00:27:29][65.1]

Tom Ginsburg:[00:27:29]That's so interesting. So, again, that comes back to where we started, like the human rights paradigm is starts with states. And so the companies is able to say, well, that's just states doing that and we comply with all national state law. So we're not directly bound by that. But what you're proposing is that they should consider themselves to be directly bound, be the corporate keepers of international law in some sense.[00:27:50][21.1]

David Kaye:[00:27:51] Yeah, I mean, I think so. And even though I mean, I guess at the end of the day, I'm still a lawyer. So I understand that we can't say that where international law is at this moment, I don't feel comfortable arguing that the companies are, in fact directly bound by human rights law. But the movement in that direction, I think, to me is fairly evident. I mean, the Human Rights Council about 10 years ago adopted the UN guiding principles on business and human rights, which distinguishes between the obligation that a state has to protect rights as compared to the corporate responsibility to respect those rights. And I think that gives us some mechanisms and actually some processes for thinking about how this should work. The idea that companies should have human rights policies. So when they operate in particularly difficult environments or jurisdictions, what are they doing to ensure that they're not causing more human rights harm? What are they doing to mitigate or prevent human rights harm?[00:28:55][64.7]

Claudia Flores:[00:29:00]So David has given us a lot to think about and I think has some pretty tangible recommendations and suggestions for how Facebook can go forward and protect human rights. But let's go back to the panel we heard from a few minutes ago, because interestingly, they fielded the question of whether Facebook will comply with international human rights law. Here's my fellow Mariana Olaizola asking the trustees of the Facebook board this very question.[00:29:21][21.9]

Mariana Olaizola:[00:29:22]What do you think should be the binding power of international human rights law on a private company?[00:29:29][7.2]

Claudia Flores:[00:29:30]And here's Christina Arriaga, one of the trustees, giving her answer.[00:29:34][3.7]

Christina Arriaga:[00:29:35]So that's the question, right? How how do we create a narrative framework that can be applied? The board members have emphasized, and you'll see it in the charter and in all of the governance of the oversight board, that human rights principles, particularly freedom of expression principles. This is Kristina Arriaga's opinion, not the oversight board, not the trustees, what I'm about to say. The Universal Declaration of Human Rights, when it was drafted in 1948, had very strong, robust standards and the standards of freedom of expression in Article 19 have been watered down by every subsequent instrument after that.[00:30:19][44.0]

Tom Ginsburg:[00:30:19]Wait, wait, wait. Let's just stop there for a second. What is she talking about? The implementation of international human rights is extremely problematic and the international machinery is often regressive. But none of the norms have been watered down. They've been extended actually since 1948. But OK, let's keep listening.[00:30:37][17.8]

Christina Arriaga:[00:30:37]And so what you have is you have bad actors using human rights law in order to prevent individuals from having true freedom of expression either under the guise of security. You see that in China. You see that in many other parts of the world or offense. So imagine not being able to see anything that was offensive. Well, that becomes a big issue for freedom of religion. That becomes a big issue for individuals who have deeply held convictions that are perhaps not the norm for the rest of society. And you're seeing these laws emerge to the detriment of freedom of expression in many of the international courts? So do I believe that the oversight board or Facebook or private company should be subject to these rules and regulations? I would argue absolutely not.[00:31:30][52.3]

Claudia Flores:[00:31:31]I just am watching this and becoming increasingly cynical.[00:31:33][2.2]

Tom Ginsburg:[00:31:34]I mean, I think what she's getting at here is the idea that, of course, freedom of expression is subject to exceptions. And, you know, those are pretty well known. You can't engage in incitement, in some countries you can't engage in hate speech, public security kind of exceptions, we know that. But what she seems to be doing is blaming human rights law for the exceptions that governments have introduced and then saying, therefore, we shouldn't really have to comply with international human rights law because we, Facebook, can do a better job of determining the scope of those exceptions. And that's just completely implausible. The fact is, courts that adjudicate these things are really good at balancing between freedom of speech and national security. They do so in an open public way and they have jurisprudential techniques like proportionality where they kind of weigh the two factors and come up with a solution that is rights maximizing. And she's just rejecting that framework in favor of the board basically deciding these questions for us on its own.[00:32:34][60.5]

Claudia Flores:[00:32:35]Yeah, I mean, here's the danger. There's really two layers of concern here. One is, what sort of jurisprudence, what sorts of rules are applied to the cases that come before this decision making body? And so this is the question of whether international human rights law is actually sufficiently protective. But the second layer is what universe of events are even under consideration by this body, by the rules that Facebook wants to apply? And I see the dangers actually in the latter, because you can hold her position and say that international human rights law is insufficiently protective while excluding 90 percent of the violations of freedom of expression that Facebook is subject to. Right. By saying that you're always going to comply with whatever the government says, as long as you have employees within their borders that might be in danger or have the potential of being arrested. So, we could have a situation where Facebook creates this very beautiful sort of body of law within the Facebook court that actually is having an incredibly negative impact on freedom of expression globally.[00:33:35][60.5]

Tom Ginsburg:[00:33:36]The irony of what she's saying is that their proposed approach, which is to comply with national laws, is actually giving force to the watering down of human rights law, which she was criticizing. And you know, because there's no transparency, essentially their argument is just trust us, we're handling it for you. Don't worry, we've got it under control. And there's just no reason to think that a publicly traded company would have it under control for the rest of us. Their job as a corporation is to make money for their shareholders. That's the legal requirement that they're subject to. And the idea that they're going to, you know, magically conform to maximizing freedom of expression when that isn't profit maximizing. That's just ridiculous.[00:34:14][38.0]

Claudia Flores:[00:34:15]Yea, and, I mean, I try to avoid being international human rights law and institutions apologist. But I will say that to the extent that principles like this have gotten watered down, it's because there are real negotiations taking place with states, you know, and there are things states don't want to do and there are things states are trying to avoid. But there is some level of transparency and accountability, whereas here you have a company that really has absolute complete control because there's no demand or requirement that they do anything differently other than maybe public opinion. They could abolish the Facebook court tomorrow and there would be no reason for them not to. The other interesting thing here is that just in thinking more generally about international human rights, this is really a situation in which a right is being replaced by an alternative universe of rights. So you have the right to freedom of speech, which continues to exist. But now there's this fora that is potentially not going to be subject to that standard and those rules. And so, there's actually going to be a parallel right to freedom of speech that has all sorts of holes and caveats that Facebook is going to end up creating in the online space.[00:35:24][68.5]

Tom Ginsburg:[00:35:25]Right. So they basically see themselves as just a company, sort of like, you know, we're just one little entity here, instead of this major platform for half the world. And the problem with that framework is that by virtue of their size, they have a significant potential to advance the global right to freedom of expression if they would develop policies that really genuinely seek to do so. And they just don't seem interested in doing that.[00:35:47][22.6]

Claudia Flores:[00:35:48]Yeah, it's disappointing. It's disappointing that they seem like they are separating themselves from the existing efforts and the existing institutions to protect freedom of speech and thinking that they can create something entirely new. And I guess we're all going to see how that plays out. On our next episode, right at the border and the conflict between rights and duties. What happens when countries refuse to carry out the right to asylum? And where does that leave the 80 million displaced people across the globe? I'm Claudia Flores.[00:36:21][32.8]

Tom Ginsburg:[00:36:21]And I'm Tom Ginsberg.[00:36:22][0.7]

Claudia Flores:[00:36:23]And you've been listening to Entitled.[00:36:24][1.3]

Tom Ginsburg:[00:36:25]Entitled is a project of the University of Chicago Law School through the University of Chicago Podcast Network. This episode was written by us, produced by Alyssa Edes, and edited by Matt Hodapp. Chelsea Kehrer and Hannah Abrahams, along with Simone Gewirth contributed to the episode. Thanks so much for listening and we'll catch you next time.[00:36:25][0.0]