How Do We Define Global Norms for Freedom of Expression?

As globalization and social media continue to break down national boundaries, authority over a region’s freedom of expression becomes murkier. For instance, Jamal Khashoggi, a reporter for The Washington Post who was critical of the Saudi government, was a Saudi citizen living the U.S. when he was murdered at the Saudi Arabian embassy in Turkey. Since many journalists, like Khashoggi, live and work cross-continentally, should there be a global standard of freedom of expression to ensure their protection?

In their recent book, Regardless of Frontiers: Global Freedom of Expression in a Troubled World, co-editors President Lee C. Bollinger and Agnès Callamard, director of Columbia Global Freedom of Expression and U.N. special rapporteur, explore how freedom of speech is codified around the world and how a more unified global approach to free speech could offer more security to reporters and others who expose difficult truths.

Columbia News caught up with Callamard to learn why this is an important moment to codify global norms on freedom of expression, how the First Amendment differs from freedom of expression rules globally, and how she would like to invite the founders of Black Lives Matter, her mother, and other activists to an imagined dinner party.

Q: What inspired you to produce this collection of essays? Why now?

A: The volume, along with other initiatives spearheaded by Columbia Global Freedom of Expression, was part of a long-term approach to and a vision for global freedom of expression, that Columbia President Lee Bollinger put forward the very first time I met him. He envisaged looking for a coherent international legal doctrine on various free speech issues, from access to government-held information to media diversity or political expression, and he wanted to enable an authoritative contribution to that end.

Perhaps it is paradoxical to write a book about global norms for freedom of expression when the multilateral system and globalization are under attack from many corners of the world. Yet, such a book takes on a particular value and importance precisely because of such attacks. Now is the time to take stock—openly, honestly, realistically—of what we have achieved as a global community, including in the realm of legal protection. The volume does not suggest that global norms are uncontested or that they have been implemented evenly or everywhere. Instead, it finds, acknowledges, and interrogates the substantial challenges to them, ranging from normative conflicts over hate speech to the rise of counter-norms originating from diverse sources such as populism or the Government of China. It also examines the profound disruption of global norms introduced by the Internet. Such assaults on global norms, values, and systems cannot be understood unless there is an adequate and accurate reading of what is being rejected, railed against, even demonized.

To the extent that the world may indeed be standing at the brink of renunciation of the core values and commitments of the post-World War II international regime, this book serves as a timely reminder of just how much is at stake and how much we have achieved in creating a normative and judicial system that is far more integrated than many people may realize. This book is also a springboard—a place from where to think about the decades ahead—to consider how best to build on the achievements and learning of the preceding era, to respond effectively to the attacks on multilateral thinking today, and to take up the regulatory challenges of an online ecosystem dominated by transnational flows of information that will characterize the future.

Q: It is noted, in this volume and elsewhere, that the United States takes a “libertarian vision of free speech,” where First Amendment rights can override nondiscrimination rights. How do you view this tension in light of the attack on the U.S. Capitol? How do you think the U.S., and other global entities, can reconcile freedom of expression with the need for equality?

A: The contributors to the book have largely avoided falling into the trap of presenting the First Amendment approach to free speech solely in opposition to others, or as overriding the search for equality. This, however, does not mean that other global legal or cultural traditions have been more successful at responding to hate or extremist speech and better at protecting dignity and equality. It is commonplace to insist that private actors, such as social media platforms, should rely on international human rights law, as opposed to the First Amendment to regulate online content. But as Sejal Parmar and I argue in our joint chapter, global norms on the regulation of hate speech have yet to emerge. There are vast variations among countries and jurisdictions over responses to hate speech, and international law offers no consistent approach. Looking ahead, we suggest that soft law exercises offer better prospects to work through the differences and identify common grounds. We argue that the Rabat Plan of Action is a credible basis for the emergence of a global norm on “hate speech."  In particular, it outlines a six-part threshold test to determine the harmful impact of a speech: (1) the social and political context, (2) status of the speaker, (3) intent to incite the audience against a target group, (4) content and form of the speech, (5) extent of its dissemination, and (6) likelihood of harm, including imminence.

Around the world, the notion that good speech will eventually drown out the bad has suffered serious erosion. I do not believe that, in the current political, economic, and technological context, such an approach offers a sufficiently solid basis to ground the responses to “hate” speech. At the most basic, yet very real, level, how do we adapt the principles and functioning of a “market-place of ideas,” of “more speech as the best antidotes,” and of “counter-speech” to a digital ecosystem functioning largely as an echo chamber, validating the users’ worldview, while excluding and blocking any news or information that challenge such a view?  How do we encourage people to open their world to other perspectives? Even within the U.S. First Amendment culture, the opposition to regulation has eroded.

One aspect of the Trump presidency that is worthy of more study is its impact on First Amendment thinking and on the community of scholars and activists who have traditionally defended the U.S. understanding of free speech against the more regulatory driven conception found in almost all other parts of the world. It has been instructive to observe the responses to President Trump’s own unbounded, unregulated speech and the impact of that on U.S. political culture, all the way up to the events in Washington on January 6. While there are clearly disagreements over Facebook and Twitter decisions to ban the ex-President from their platforms, it is remarkable how much approbation such decisions have received in the United States. The limited opposition and critique cannot be explained just by the notion that “First Amendment guarantees do not apply to private actors.” In my opinion, over the last four years we have witnessed a remarkable change in the First Amendment culture in the U.S., with a far greater convergence with, for instance, the European stand on free speech. It seems that the prevailing understanding that the U.S. ought to tolerate views that seek to undermine the political foundations of U.S. democracy has taken a battering, that such a common view was somehow founded on the notion of a strong U.S democracy, able to respond to the attacks on its foundational values through the marketplace of ideas. But four years of a Trump presidency, and the beliefs in the strength of U.S. democratic institutions and the marketplace of ideas have been largely eroded. Censoring certain political speech or preventing at least its broad circulation and amplification seems to have taken on a far more existentialist urgency and has become far more tolerable and justifiable. It will be interesting to see how these considerations play out in a different political environment, how they will translate at legal, regulatory, and policy levels, how they may transform social media platforms’ internal rules. 

Q: President Bollinger, a First Amendment scholar, co-edited this book with you, a leading expert on global freedom of expression. How did your two areas of expertise complement each other?

A: The U.S. Constitution’s First Amendment has been a major influential source for the global development of freedom of expression norms. Even if that contribution is not formally acknowledged or referenced in international standard-setting exercises or in national or regional jurisprudence, it nonetheless is there: in Article 19 of the Universal Declaration of Human Rights, in the persistent affirmation of the centrality of press freedom in considerations of democracy worldwide, in the position taken globally against criminal libel, etc. The First Amendment’s philosophical foundations, its history and jurisprudence across a century or so has been a constant influence on the development of my own expertise on global free speech norms. I could not have wished for a better mentor and First Amendment scholar than President Lee Bollinger. Lee approaches the First Amendment critically, not as a sacred text to remain challenge. For him, it as a doorway into U.S. history and political culture; a proposition, unfinished but tested through changing times and circumstances, that is problematic at times in terms of its implications. For all these reasons, our areas of expertise complemented each other well. Both of us reject “legal nationalism,” the notion that one legal culture or tradition is better, stronger, etc.

The book relies on the work of social constructivists, particularly that of Martha Finnemore and Kathyrn Sikkink, to define norms as standards of appropriate behaviors, often but not always codified in law, and global norms are those which have reached a "tipping point" or critical mass of state endorsements. To determine whether global norms have emerged on specific free speech issues, contributors have critically examined international law alongside various legal traditions, national and regional jurisprudence, including the First Amendment. This later figures large as one of the sources of global norms and one of the outliers. The chapters in the first section of the book cover an impressive number of jurisdictions, and their law and jurisprudence. Out of this review, global norms may be woven.

Q: What do you want people to take away from Regardless of Frontiers?

A: In the context of a decade dominated by attacks on the global project—on multilateralism, on global values and on the U.N., in particular—and the ideals of human rights, Regardless of Frontiers stands as an authoritative work that pushes back against those trends. It offers a truly global perspective, a powerful snapshot of the state of play of freedom of expression over the 70-odd years that have passed since the international community’s adoption of the Universal Declaration of Human Rights and a century after the original First Amendment jurisprudence. It offers a vision of freedom of expression exercised and protected, regardless of frontiers, which does not fall prey to the tendency toward legal nationalism. It is critical of those achievements; it does not take them for granted but recognizes their limitations. However, in an era where populism and nationalism dominate, Regardless of Frontiers shows just how far we have come as a global community on one particular and significant issue. Such a global snapshot—of the international standards and norms that may be said to be global; of the actors who, over time, founded this global, interactive system; of those acting against it—is not available elsewhere and that makes this publication unique.

From a scholarly standpoint, the book is the first of its kind to study freedom of expression by applying a “global norm” framework. It examines critically the extent to which global norms on freedom of expression and information have emerged and what actors and forces contribute to this globalization. It challenges the comparative jurisprudence tradition, which to date is characterized by strong biases in terms of the jurisdictions compared (mostly Western and common law systems) and by a focus on differences as opposed to commonalities. In contrast, Regardless of Frontiers highlights jurisprudence from around the world, including from the Global South and from different legal traditions, and it identifies what this jurisprudence has in common, as opposed to what may set them apart. The book is broader and more global in scope than much of the literature, and it offers contributions that are both empirical (e.g. by mapping the norms, values, and systems around free expression) and theoretical (e.g. by establishing a coherent global legal framework to address such issues as political expression and access to government information). The writing is rich and clear. It brings together the voices of some of the world’s top scholars and commentators on these issues, offering refreshingly diverse, balanced, and nuanced perspectives.

Q: You are a busy person, but hopefully you have time to read for pleasure. What books are you reading now and why?

A: Richard Powers’s The Overstory: I love trees, and it’s an extraordinary book. Karine Tuil’s Les choses humaines: highly topical in France (and elsewhere) in that it looks at the abuse of power, including at the most intimate level, and the complicity of those in the know. Max Tegmark's Life 3.0, having just finished C. Robert Cargill’s Sea of Rust: the issue at the heart of these two books will define what it means to be human in the years to come.

Q: Imagine, in a post-COVID world, that you're hosting a dinner party.  Which three scholars, authors, activists, or artists, dead or alive, would you invite and why?

A: I would sneak my mother in as a co-host, because I miss her terribly and every day; Brittle (the robot), for her views on what it means to be human, about consciousness, free will, and choice; Patrisse Cullors, Alicia Garza, and Opal Tometi, the founders of Black Lives Matter, for their views and in celebration of their actions on systemic racism, reparations, and grassroots organizing; and Olympes de Gouges for her vision, activism and courage, for her dreams of equality. She wrote the Declaration of the Rights of Woman and of the Female Citizen in 1791, campaigned for women’s rights and against slave trade. For that, she was executed in 1794.

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