Unknown Unknowns: Why We Need More Information About How the Government Stifles the Right to Receive Information from Foreigners Online
The First Amendment right to receive information ensures that where speakers are free to speak, listeners receive their speech. In theory, this right has been enshrined through doctrine, and is critical in protecting the First Amendment’s goals of truth- seeking, self-governance, and self-realization. In practice, with respect to foreign speech online, the right to receive is not realized, impacting the First Amendment’s goals. Courts have repeatedly struck down right to receive claims because of inadequate standing. The government also cooperates with technology companies to take down (foreign) content and monitor (foreign) speakers, which prevents Americans from seeing information sent their way, both directly and through speaker self-censorship. The government’s foreign policy moves in banning apps and pressuring technology companies to remove adversarial leaders also impact this right. These moves mean that listeners do not know what they do not know.
In the summer of 2020, Amanda Daniels found herself, for the third time,
in a flooded apartment that she rented in Chicago. Over the past five years,
Daniels had lost $10,000 worth of personal belongings and rented three
separate apartments that she learned, too little too late, were prone to
flooding during storms. None of Daniels’ landlords alerted her to the
possibility that those rentals might flood, and she could not recoup her losses,
as her general renters’ insurance did not cover flood damage.
It’s no secret that antitrust law is having its moment in the sun—and technology is the target. In recent years, Senator Elizabeth Warren proposed breaking up the “Big Tech” companies as part of her presidential campaign platform, and former Assistant Attorney General Makan Delrahim spoke passionately about addressing competition issues in the technology industry in his parting speech. Constituents and politicians on both sides of the aisle are in favor of breaking up Big Tech companies, making this an issue with bipartisan support.
In August 1935, Lloyd Gaines, a recent Black graduate from Lincoln University—then a Black-only college operated by the University of Missouri—submitted an application for admission into the University of Missouri Law School, as Lincoln University did not have a law school at the time.1 Upon receipt of Gaines’ application, the University of Missouri directed him to contact Lincoln University instead, pointing Gaines to a recently enacted state statute which promised provision of tuition for any law school in an adjacent state “pending the full development of the Lincoln university.”2 In other words, because the school only offered tuition funds to Black students attending out-of-state law schools, the University of Missouri would not accept Black law school applicants and Gaines could only apply to an out-of-state law school. While Gaines was otherwise qualified to attend the University of Missouri School of Law, he was refused admission on the grounds of his race.3 Gaines promptly brought an action against the University of Missouri, arguing that this denial violated the Fourteenth Amendment and demanding admission into the law school.4 The Supreme Court found that the state of Missouri was compelled to procure a legal education for Gaines within the state, rather than providing tuition for an out- of-state school, and determined that Gaines was entitled admission to the University of Missouri School of Law if no other legal education was available in the state.5 Gaines’ story of exclusion is but a vignette of the myriad struggles Black students and other students of color have faced while attempting to gain entry into institutions of higher education in the United States.6