Efforts to resist censorship motivated by foreign influence must account for the importance of free speech to the individual.

Noah C. Chauvin

Foreign efforts to influence domestic politics in a number of European states have led to a range of efforts to safeguard elections and democracy. In the United States, similar concerns have led the federal government to employ measures to restrict speech online. Civil libertarians in the U.S. have resisted these efforts, arguing that censorship is an inappropriate response to foreign influence operations because these operations are ineffective and speech restrictions are therefore unnecessary to protect the marketplace of ideas and democratic self-governance.

In an article that was recently published by the Knight First Amendment Institute, I argue that these arguments are correct, but incomplete. I contend that efforts to resist censorship motivated by foreign influence should also take account of the importance of free speech in protecting individual dignity and autonomy. Doing so will help persuade originalist judges, the general public, and social media companies that censoring speech is an inappropriate response to online foreign influence campaigns.

Foreign Influence and the Efforts to Combat It

Concerns about foreign interference in American politics are nothing new. In his “farewell address” announcing his decision not to seek a third term as President, George Washington warned Americans that “foreign influence is one of the most baneful foes of republican government.” Fears of foreign influence led to some of the nation’s most notorious civil liberties abuses, including the Alien and Sedition Acts of 1798, which made criticism of the federal government a crime, the Palmer Raids targeting suspected Communists for arrest and deportation, and the illegal surveillance of civil rights and anti-war advocates under the Federal Bureau of Investigation’s notorious Counterintelligence Program (known commonly as COINTELPRO).

Nor are these fears entirely baseless—foreign nations do try to influence politics in the United States.  Rival nations such as China, Russia, and Iran “conduct malign influence operations . . . to undermine U.S. political processes and amplify discord.” Even U.S. allies such as Israel and Turkey have attempted to influence politicians and the American people using covert (and sometimes illicit) means.

The U.S. federal government has responded to online foreign influence in a variety of ways, including by directly targeting the offending speech. For example, the FBI and other government agencies regularly contact social media companies to inform them of alleged foreign influence content on their sites—a practice known as “jawboning” that some view as putting pressure on social media companies to remove content. Government agencies have also seized dozens of web domains they claim were used by foreign governments’ influence campaigns—even though several of the websites appear to have actually belonged to dissidents, refugees, and religious minorities. Perhaps most significantly, in 2024 Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act, which requires TikTok’s parent company ByteDance to divest from the popular social media application.

Resistance to Censorship Motivated by Foreign Influence

As a threshold matter, online foreign influence campaigns appear to be largely ineffective. Researchers assess that Russia’s efforts to influence the 2016 U.S. presidential election using fake social media accounts did not have “much more than a relatively minor influence on individual-level attitudes and voting behavior.” The same is true of the 2024 election cycle, during which “foreign malign influence campaigns failed to achieve measurable results.” While the reasons for these failures are complicated, two important factors appear to be that online influence campaigns have largely failed to garner attention, and are generally only convincing to those who already agree with the underlying message. Emerging technologies such as generative artificial intelligence seem unlikely to change these patterns: because people “seek out and find information consistent with the[ir] views . . . it will be extremely hard to convince out-group members of false information they don’t agree with, regardless of AI use.”

Those in the U.S. opposed to censorship motivated by foreign influence have latched on to online propaganda’s apparent ineffectiveness, arguing that the government’s interests in restricting speech are not compelling because influence campaigns do not change beliefs or behavior. This argument is unsurprising given how deeply the values of truth-seeking and democratic self-government are embedded in First Amendment jurisprudence. Accordingly, those opposing censorship efforts frequently focus on the harms to society if speech is suppressed.

This dynamic was on sharp display in the opposition to the statute requiring ByteDance to sell TikTok. In blog posts, op-eds, and amicus briefs, advocates repeatedly emphasized how the law was unnecessary to helping the government achieve its aims. For example, in their brief filed with the Supreme Court, the Foundation for Individual Rights and Expression (FIRE) and other civil liberties groups argued that “[a] primary purpose of the Act is to banish disfavored viewpoints from the marketplace of ideas — a constitutionally infirm basis for regulating speech.” Professor Nikolas Guggenberger argued that forcing the sale of the app would not stop foreign propaganda, but would instead merely “insert[] some friction into the propaganda machinery.” Similarly, Professor Jane Bambauer maintained that the threat of China using TikTok to manipulate American political behavior was “mostly illusory” because “[p]ropaganda does not work unless listeners want it to work. . . . Beliefs cannot be spun from thin air by a social media company.”

These arguments are surely correct. But because they focused primarily on the benefits of free speech to society more broadly, they are incomplete.

Freedom of Speech and the Individual

Free speech is not just important to the search for truth or democratic self-governance. It also protects human dignity and autonomy. As Justice Thurgood Marshall put it, “[t]he First Amendment serves not only the needs of the polity but also those of the human spirit—a spirit that demands self-expression.” Put differently, free speech is valuable as an end in itself, irrespective of the benefits it provides to the community, because of its importance to the welfare of the individual.

Nor is the distinction between free speech as good for the collective and free speech as good for the individual mere hair-splitting—though it is that, too. Framing free speech as important for protecting human dignity and autonomy has important practical implications for advocacy directed at originalist judges, the general public, and social media companies.

While there are many forms of originalism, at a high level of abstraction originalist judges believe that the meaning of the U.S. Constitution was fixed at the time it was created. First Amendment jurisprudence in the United States is largely not originalist, though a growing number of prominent judges—including two Supreme Court justices—have begun to argue that it should be. While the Framers’ motivations in enacting the First Amendment are contested, there is good evidence that many people at the time of the founding viewed freedom of speech as a natural right—a right inherent in our humanity over which the government had limited dominion. Accordingly, framing efforts to censor speech out of concern with foreign influence as injurious to the dignity and autonomy of the individual may be particularly persuasive to originalist judges.

Similar arguments may be even more important when seeking to persuade the public—and particularly young people—of the problems with censorship motivated by foreign influence. There is troubling evidence that support for freedom of speech is declining in the U.S. This may be partially because people have a difficult time differentiating fact from fiction online. Under these circumstances, a defense of freedom of speech based on its importance to the marketplace of ideas or democratic self-governance is unlikely to be particularly persuasive. Defending speech as important to dignity and autonomy solves this problem, because those values are served regardless of whether the speech in question is true.

Finally, dignity and autonomy arguments against speech may be helpful in persuading social media companies not to implement censorship policies targeting perceived foreign influence. Social media companies are motivated by profit: they care about maximizing their number of users and the time those users spend on their sites, not the marketplace of ideas or democratic self-governance. But if they are viewed as acting immorally by infringing upon individual dignity and autonomy by censoring speech, they may be more likely to pursue strategies for combatting foreign influence other than outright bans, such as labeling apparent foreign influence campaigns rather than deleting them.

It is true that online foreign influence campaigns are largely ineffective at impacting beliefs or voter behavior in the United States. Accordingly, efforts to combat foreign influence by restricting speech are unnecessary to protect the marketplace of ideas or democratic self-governance. Equally importantly, however, they also infringe upon the dignity and autonomy of the individual. Those opposed to censorship motivated by foreign influence should make both arguments, particularly because defenses of speech as an individual right may be especially important when addressed to originalist judges, the public, and social media companies.

Noah C. Chauvin (Bluesky – LinkedIn – X) is an assistant professor of law at Widener University Commonwealth Law School.