ABFE Free Speech Report: Court Decisions, Coronavirus, Library Censorship Laws

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Here’s a look at notable free speech news and the American Booksellers for Free Expression’s recent efforts.

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Courts Rule First Amendment Does Not Apply to Private Companies

On February 26, the 9th U.S. Circuit Court of Appeals ruled in Prager University v. Google LLC et al that technology platforms are not bound by the First Amendment, upholding previous rulings. Prager University, a conservative organization, sued YouTube (owned by Google) in 2017 for marking some of its content as inappropriate and blocking third parties from advertising on videos. Prager University argued that this amounted to censorship and was a violation of the First Amendment. According to the Wall Street Journal, a video titled “Why Isn’t Communism as Hated as Nazism?” was among the content marked as inappropriate.

Judge M. Margaret McKeown wrote in the decision, “Despite YouTube’s ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment… Just last year, the Court held that ‘merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.’ We affirm the district court’s dismissal of PragerU’s complaint.”

Following the ruling, Peter Obstler, a lawyer for Prager University, commented, “We will continue to pursue PragerU’s claims of overt discrimination on YouTube in the state court case under California’s heightened antidiscrimination, free-speech, and consumer-contract law.”

On March 3, District Court Judge Stephen Wilson issued a similar ruling in Tulsi Now, Inc. v. Google, LLC et al. Democratic presidential candidate Tulsi Gabbard sued Google in July 2019 for suspending her campaign’s advertising account following the first democratic presidential debate.

In his decision, Judge Wilson stated, “Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government.” He continued, “What Plaintiff fails to establish is how Google’s regulation of its own platform is in any way equivalent to a governmental regulation of an election. Google does not hold primaries, it does not select candidates, and it does not prevent anyone from running for office or voting in elections. To the extent Google ‘regulates’ anything, it regulates its own private speech and platform.”

Gabbard has yet to respond to the decision.

Coronavirus Sparks Censorship

On March 3, the Citizen Lab at the University of Toronto’s Munk School of Global Affairs and Public Policy released a report titled “Censored Contagion: How Information on the Coronavirus is Managed on Chinese Social Media.” While much had been reported about China’s censorship efforts surrounding the novel coronavirus (or COVID-19) in various news outlets, the Citizen Lab’s report quantified just how widespread censorship around the virus is in China.

The report found that neutral, speculative, and factual information about the coronavirus were all censored on WeChat, a messaging and social media app, and YY, a live-streaming platform. Chinese censors blocked hundreds of keywords and phrases, such as “virus infected,” “Wuhan seafood market,” “SARS variation,” “Wuhan Health Committee,” “Xi Jinping goes to Wuhan,” and “Wuhan + Obviously + Virus + Human-to-human transmission.”

“Censorship of COVID-19 content started at early stages of the outbreak and continued to expand blocking a wide range of speech, from criticism of the government to officially sanctioned facts and information,” the report said. While some of the censored content was critical of the Chinese government, much was neutral. For instance, only 39 percent of keyword combinations referencing government actors and/or policies were critical.

According to the report, the censorship began on December, 31, one day after the late Dr. Li Wenliang and others warned of the virus in WeChat. Li, who died from coronavirus on February 6, warned doctors early on of the outbreak. After going public with this information, Li was accused by Chinese officials of “making false comments” and disturbing social order.

Library Censorship Laws Introduced in Missouri and Tennessee

In January, Missouri’s House of Representatives introduced House Bill 2044, a library censorship bill. The bill, titled the Parental Oversight of Public Libraries Act, requires the creation of a parental library review board tasked with identifying and restricting sexual material considered age-inappropriate for children.

The bill defines age-inappropriate sexual material as “any description or representation, in any form, of nudity, sexuality, sexual conduct, sexual excitement, or sadomasochistic abuse, that:

  1. Taken as a whole, appeals to the prurient interest of minors;
  2. Is patently offensive to prevailing standards in the adult community with respect to what is appropriate material for minors; and
  3. Taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.”

Under the bill, libraries will lose public funding if they do not create parental library review boards. Further, librarians are prohibited from sitting on these review boards and are subject to criminal prosecution of up to a $500 fine or one year in jail if they do not comply with the legislation.

In response to the proposed law, ABFE, along with 10 other national organizations, co-signed an opposition statement prepared by the National Coalition Against Censorship.

The opposition statement comments, “It is dangerous and constitutionally impermissible to allow a group of otherwise unqualified individuals to determine whether a book has serious value. To make matters worse, library and school employees, who are trained to help children learn from books and other material, are banned from being members of the committee.”

Read the full opposition statement here.

In February, a nearly identical bill, House Bill 2721, was introduced in Tennessee. As with the Missouri bill, the Tennessee bill calls for the creation of a five-person parental oversight board for each public library in the state. The oversight board would determine what books and programs are allowed in public libraries. Librarians are barred from serving on these boards and are subject to criminal prosecution of up to a $500 fine and/or one year minus one day in jail if they do not comply with the law.

In response to the Tennessee bill, the American Library Association said in a press release, “Public libraries and their professional staff members already have in place the tools and procedures that will assist parents in selecting materials that fit their family’s information needs, while not censoring materials or infringing upon the rights of other families or patrons to choose and access the resources and programs  they want and need. ALA vigorously opposes HB2721 and other bills like it that advance censorship under the guise of parental control.”

On Thursday, March 12, the Tennessee Library Association announced that the House Cities and Counties subcommittee killed the Parental Oversight of Public Libraries Act. 

Gui Minhai Sentenced to 10 Years in Jail by Chinese Court

Hong Kong bookseller and publisher Gui Minhai was sentenced to 10 years in Chinese jail by the Nigbo Intermediate People’s Court on February 24. Gui was charged with “illegally providing intelligence” overseas and was stripped of political rights for five years.

ABFE has been following Gui’s story since he first disappeared in 2015 before resurfacing in Chinese detention. After being briefly released under house arrest in 2017, Gui was once again seized by Chinese officials in 2018. While in detention, Gui has made forced confessions and statements saying he resists assistance from organizations and countries working for his release. Gui is co-owner of Mighty Current publishing, whose titles have been banned in mainland China but which are available in Hong Kong, and whose publication is protected under the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China. 

Regarding Gui’s 10-year sentence, David Grogan, director of ABFE, commented, “We continue to believe that Mr. Gui is being imprisoned because of his works’ legitimate criticism of the Chinese Communist party…. We call on the Chinese authorities to release Mr. Gui.”

On March 4, ABFE, joined by the American Library Association Office for Intellectual Freedom, the Authors Guild, the Comic Book Legal Defense Fund, and the Freedom to Read Foundation, sent a letter to Secretary of State Mike Pompeo urging the State Department to demand that China release Gui.

The letter stated that Gui’s case “continues to send a clear and intimidating message to writers, publishers, and booksellers in Hong Kong that tackling politically sensitive topics can imperil an individual’s freedom and safety. Mr. Gui’s release is crucial to China’s compliance with the Universal Declaration of Human Rights which guarantees a right to free expression.”

Read the full text of the letter here.

Counterspeak Podcast Premieres on YouTube

Counterspeak, ABFE’s monthly podcast hosted by ABA Content Director Sydney Jarrard and Director of ABFE David Grogan, is now available on YouTube in addition to BookWeb, Spotify, and iTunes. Beginning in May, episodes of Counterspeak will premiere on YouTube a week prior to launching on other podcast players. By subscribing on YouTube, listeners help support ABFE’s mission to protect the right to read.

This month’s episode features an interview with Patrick Eddington, a research fellow at the Cato Institute. Jarrard talks with Eddington about his ongoing Freedom of Information Act (FOIA) project, which is trying to determine the extent to which FBI domestic surveillance is collecting national security or intelligence records on advocacy groups and media organizations.

Each month, Counterspeak features interviews with experts on the First Amendment and free speech, as well as discussions on relevant current events. Listeners can contact the Counterspeak podcast team at [email protected].

Follow Counterspeak on Twitter @CounterspeakPod.