Zelenskyy’s ‘Blacklist’ of His Critics is Not ‘an Attack on the Free Press’

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.

Of course, the U.S. Government can go even further than simply criticising foreigners: it can sanction foreign individuals with actual penalties, and without any kind of trial. Consider the Magnitsky Act. And to give the most extreme example, the U.S. government has even engaged in the extrajudicial assassination of those designated to be terrorists – even U.S. citizens – which definitely affected their free speech rights. I’m not trying to argue that case, but it’s illustrative of where the limits might lie.

However, that’s not what Ukraine is doing. And as noted, the protections afforded under the First Amendment are the best in the world, so if the U.S. Government could do what Zelenskyy has done and easily survive a First Amendment challenge, I don’t think this amounts to “an attack on the free press” – those individuals are not in any way being prevented from speaking, and there is (after all) an overriding state interest in time of war.

Another question posed by Noah is whether it’s good policy for Ukraine to publish such a list, suggesting it amounts to little more than “name-calling”. He suggests instead that they should “upload a document that refutes their arguments”. But it’s naive to think that would have any positive effect.

Having looked into many of the arguments being made “consonant with Russian propaganda”, and having seen how weak they are, I would oppose any of the resources of the Ukrainian Government being expended during a time of war to refute those tired arguments. One might as well have asked the U.K. Government to refute Lord Haw-Haw’s speeches during WWII. That’s not to say such refutations don’t exist: I’ve made criticisms of the arguments made by Jacques Baud (who’s on the Ukrainian ‘blacklist’) and Ivan Katchanovski – among others. But to these, answer came there none. And from Katchanovski, just a snarky tweet.

So it seems a bit much, while Russia is raping and murdering Ukrainian civilians, and while Ukraine is fighting for its very existence, for Noah to demand that Ukraine intellectually engage with its critics. At the end of his article on Katchanovski, he said: “If others believe that Katchanovski is mistaken, they must come forward and present their arguments.” Well, I did. So over to you, Noah.