Date01 May 2022
AuthorVidyarthi, Apratim

INTRODUCTION. 1343 I. THE RIGHTTO RECEIVE INFORMATION DOCTRINE 1345 A. Why Protect Foreign Speech? 1346 B. The Doctrine of Right to Receive Information 1349 C. Foreign Speech and the Right to Receive Information. 1351 D. The Role of the Internet 1353 II. THE RIGHT TO RECEIVE INFORMATION IN PRACTICE. 1355 A. Failure to Raise the Right to Receive in Court Due to Procedural/Standing Issues and Executive Authority. 1355 B. Technology Companies Cooperating with the Government 1357 C. Foreign Policy and Executive Authority 1363 III. THE DIFFICULTIES OF BRINGING A RIGHT TO RECEIVE INFORMATION CLAIM IN COURT 1366 A. Standing is Difficult to Attain. 1366 B. National Security and Executive Authority are Given Immense Deference 1368 C. Incitement and True Threats Doctrine Could Take Precedence 1372 D. The Nature of the Internet Complicates the Picture. 1375 IV. PROTECTING THE RIGHT TO RECEIVE INFORMATION. 1378 A. Pushing Technology Companies Toward Transparency. 1378 B. Government Online Accountability Legislation. 1381 CONCLUSION. 1382 INTRODUCTION

In December 2019, Chinese doctor Li Wenliang sent a group message to his colleagues, noting the lab results of patients in Wuhan who exhibited SARS-like symptoms. (1) Screenshots of these messages spread across the Chinese Internet. (2) One month later, Dr. Li blogged about his experience being interrogated by Chinese authorities, as well as information about a coronavirus disease. (3) The post spread globally, (4) even though President Trump had said that he trusted the Chinese authorities and that the situation was under control a few days prior. (5) Facebook, reactionary as ever, began to remove conspiracies related to the virus. (6) Was Dr. Li's post a conspiracy? Were his words endangering American lives? Could the U.S. government have pressured Facebook to remove traces of this alternative theory to the official Chinese version? In theory, no: the First Amendment right to receive information would prevent the government from doing so. But practically, if the government chose to pressure technology companies to do so, we would never know. The depths of what we do not know is not known: these are the unknown unknowns around whether our right to receive is realized.

The right to receive information is a corollary of the First Amendment, which regulates the government's ability to prevent or stifle what kind of information people receive. This right was originally derived in the 1960s, at a time of heightened sensitivity and anxiety over alleged communist influence of American institutions following the peak of the Second Red Scare. (7) The right still applies in the digital era because while the Internet is many unregulated things--a source of education, (8) a wellspring of memes, (9) and allegedly a series of tubes (10) --the U.S. government through its employees (11) and as an entity (12) plays a role in shaping speech online. Applied to cyberspace, the right to receive protects listener access to speech both by foreign and domestic speakers. (13) This right furthers the broad goals of the First Amendment, including goals of truth-seeking, self-governance, and self-realization. (14)

But the story is not as rosy as described on paper. In theory, the right to receive protects listeners' rights under the First Amendment. This Comment argues that in practice, there are too many unknown unknowns to tell whether the federal government is stifling our right to receive information, leading to a pernicious impact on our First Amendment rights. What we do know is that the government's powers in policing the border, implementing foreign policy through Executive authority, and cooperating with technology companies seriously endanger the right to receive information. And shedding light on whether our right to receive is being stifled faces not hurdles, but mountains. A potential plaintiff faces a quartet of troubles: attaining standing, overcoming deference to the government's national security authority, handling First Amendment incitement doctrine, and dealing with practical issues regarding litigating Internet cases.

This Comment explores the right to receive information in practice. Part I provides context, defining why such speech is valuable, and giving a brief background of the right to receive doctrine. Part II compares this doctrine to reality, investigating how the right holds up in existing cases, the government's use of foreign policy to stifle the right, and the government's cooperation with technology companies to quietly remove and chill speech, raising the question: how much information is being taken down that we don't know about? Part III discusses hurdles in bringing successful litigation. Finally, Part IV discusses two solutions: holding technology companies accountable for transparency, and legislation requiring government transparency regarding online speech.

While American Internet users have the right to receive information from foreigners over the Internet, in practice the government's policies mean we don't know what we don't know; and the right to receive may be a victim of that unknown unknown. As the Internet's role in American politics and its use by foreign adversaries to influence citizens increases, the government's approach to these issues must be constrained by the right to receive foreign speech. (15) How the government approaches this new era of digital democracy will shape the extent to which the First Amendment protects free speech, or whether the content we don't know and don't see expands in quantity.


    The First Amendment, despite its acclaim and importance, mentions the word "speech" just once: "Congress shall make no law... abridging the freedom of speech, or of the press... . " (16) Yet these fourteen words imply more than just the right to free speech. The Supreme Court's First Amendment jurisprudence has recognized various corollaries that derive from the right to free speech: rights to free association, (17) to anonymous speech, (18) and to receive information are three of many. While the right to receive is not in the Constitution's text, it arises naturally from the nature of free speech: where speech is unabridged, a listener's right to hear that uncensored speech too should be unabridged.

    While the right to receive originates from the American Constitution, it covers receiving nearly all speech, including foreign speech. (19) And foreign speech has unique characteristics that make it invaluable to realizing the purpose of freedom of thought and expression enshrined in the First Amendment. This Section covers the benefits of foreign speech, and then gives a brief overview of right to receive doctrine and how that applies to foreign speech and the Internet. (20)

    1. Why Protect Foreign Speech?

      There are at least three goals of free speech (21) under the First Amendment: truth seeking, (22) self-governance, (23) and self-realization. (24) Foreign speech is essential to realizing these goals. A Maldivian expressing the effects of climate change on their islands helps Americans realize the veracity and harm of climate change. (25) Young Iranians expressing disenfranchisement due to American sanctions help Americans determine whether their elected officials' foreign policy is succeeding. (26) And global protests against racism might change an American's perspective on systemic racism. (27)

      Yet, as we shall see, the government's current policies with respect to foreign speech mean that we do not know whether the policies are filtering out objectively harmful speech, or speech the government considers subjectively harmful but still helps seek truth, self-governance, or selfrealization. And given the rudimentary policy solutions in response to foreign election interference and disinformation campaigns during the 2016 and 2020 elections, and during the COVID-19 pandemic, it seems probable that foreign speech is likely to bear the brunt of such policies in the near future. (28) These policies risk losing the benefits of foreign speech: providing diverse perspectives that encourage truth seeking, broadening information access that informs self-governance, and providing external input to closed ecosystems that might help self-realization.

      Foreign speech encourages truth-seeking by providing diverse perspectives. Such varied perspectives create an "atmosphere of 'speculation, experiment and creation'" that provokes a "'robust exchange of ideas,'" (29) leading to "uninhibited, robust, and wide-open" debate and discussion. (30) Given the non-geographic, boundaryless nature of the Internet, online speech facilitates discussion when it includes foreign speakers rather than exclusively American views. Open debate and discussion take place when speech is not chilled, and instead grant listeners the liberty to decide whether (foreign) speech is relevant, important, and true. (31) Foreign speech is also essential for dialogue across religions, for entrepreneurship, and for accountability against misinformation and authoritarianism. (32)

      Further, foreign speech--especially on the Internet--improves self-governance within the United States. (33) It helps ensure accountability as the United States continues to be a global superpower whose foreign policy spans continents. Foreign speech can provide uniquely accurate information about the United States' actions in foreign issues, encouraging policymakers and voters to hold elected officials and the military accountable. For example, Iraqi witnesses initially reported the U.S. military's civilian massacre in Haditha in 2005. (34) Time Magazine's reporting led to the investigation (35) and prosecution of soldiers involved (36) and changed lawmakers' support of the Iraq war. (37) Foreign speech is also useful in ensuring that American officials are doing their job serving and protecting American citizens. For example, a British whistleblower provided...

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