In a recent article, Noah Carl drew attention to the list published by the Ukrainian Government of “speakers who promote narratives consonant with Russian propaganda”, saying that this “will be seen – even by those who fully support Ukraine – as an attack on the free press”. Given that I fully support Ukraine, and am also a co-founder of the Free Speech Union, I have something to say about this.
In helping to set up the Free Speech Union, I took inspiration from the First Amendment to the U.S. Constitution, which through its jurisprudence is the pre-eminent exemplar for the protection of free speech around the world (even possibly going a bit too far in one or two areas). So my first thought was to consider whether the First Amendment would prohibit the U.S. Government from publishing a similar list of individuals whom it believed were promoting misinformation.
I think the answer is no. Essentially the ‘government speech doctrine’ gives the government and its representatives its own speech rights, and there was a recent case in which the Supreme Court unanimously approved the right of a community college board in Texas to censure an individual. It would be rather absurd if – even in an official speech – President Biden were unable to praise or criticise political allies and opponents. And since Ukraine is not sanctioning these individuals in any way, it would not amount to unequal treatment under the Fourteenth Amendment, and nor does such government censure of individuals remotely amount to a “bill of attainder”.
But it’s even simpler than that. It may have escaped most people’s attention, but all of the individuals listed by the Ukrainian Government are foreigners on foreign soil, so if this had been done by President Biden’s administration, the First Amendment wouldn’t apply to them anyway. And I would note that it seems possibly deliberate that the list excludes Ukrainians, since it doesn’t include Ivan Katchanovski, who would certainly meet the criterion for inclusion – although it also doesn’t list Aaron Maté, for instance. But the point is that you might as well accuse the Ukrainian Government of attacking Putin’s free speech rights: it’s absurd to suggest Ukraine has to stay silent because of free speech.