Yesterday, PEN America submitted a report to the United Nations Committee on Civil and Political Rights, criticizing the human rights record of the United States on free expression, discrimination, and privacy.
PEN America continuously monitors evolving threats to free expression within the U.S., with a particular focus on the rights of writers, journalists, and artists. The submission provides information about the increasing number of educational gag orders, book bans, and laws suppressing LGBTQ+ speech and drag performances. It also examines the negative impacts of current legislative proposals on privacy and child online safety.
The International Covenant on Civil and Political Rights is a cornerstone of international human rights law, and one of a handful of international conventions that the US has chosen to sign and ratify. The review process is one of the few opportunities to assess the extent to which the U.S. is fulfilling its international human rights obligations. Given the considerable influence the U.S. wields on the global stage, PEN America’s report on the U.S. human rights situation is an urgent call to the U.S. to take immediate steps to address these violations. It is also an invitation to member states to press the U.S. to respect and fulfill its human rights obligations. In our increasingly interconnected world, challenges to freedom of expression within a single nation — particularly one as influential and vocal as the U.S. — inevitably have consequences that extend beyond borders.
Violations of the Right to Nondiscrimination and Free Expression
- Educational Gag Orders: PEN America found that educational gag orders unfairly target people of color, women, and LGBTQ+ individuals, amounting to discrimination. These bills perpetuate discrimination by restricting content related to specific racial, ethnic, or gender identity groups and limiting the decision-making autonomy of educational institutions, affecting these groups. Under international human rights law, governments must not only prevent direct discrimination but also address consequences from facially neutral policies.
- Book Bans: The submission includes data from PEN America’s Index on school book bans, stating that there have been over 4,000 instances of book bans affecting 2,253 unique titles through December 2022. Notably, 26% of banned books include LGBTQ+ content, and 30% address race or feature characters of color.
- LGBTQ+ Speech Suppression and Anti-Drag Measures: PEN America also documented that in the past year, there has been an alarming nationwide push to exclude LGBTQ+ speech from constitutional protection, with at least 32 bills introduced across various states as of March 2023, targeting gender-nonconforming performances and expression, often under the pretext of protecting children. This effort raises serious concerns about discrimination, freedom of expression, and the well-being of LGBTQ+ individuals, including youth and children.
Infringements of the Right to Privacy and Free Expression
- Surveillance Reform: Section 702 of FISA allows the U.S. government to gather electronic communications from foreign individuals located outside of the U.S. if there is a possibility that these individuals possess foreign intelligence information. This overly broad language could lead to the inadvertent inclusion of personal, non-security-related conversations, undermining individuals’ privacy expectations in their communications emphasizing the need to balance security with fundamental human rights.
- Children’s Online Safety Bills: The Kids Online Safety Act (KOSA), EARN IT Act, and Stop CSAM Act all appear to protect children but actually threaten their rights and adults’ rights to privacy and freedom of expression. These bills require online platforms to prevent children from accessing harmful content, but their vague and overbroad nature make it likely that platforms will over-censor, endangering user privacy and online free expression and disproportionately affecting marginalized communities. Additionally, the EARN IT Act, while aiming to combat child exploitation, could complicate law enforcement efforts, jeopardize encrypted services, and undermine digital security and confidentiality.
- TikTok Ban: A proposed nationwide TikTok ban, as suggested by U.S. lawmakers, would severely disrupt millions of users’ online activities, infringing on their privacy and freedom of expression, while promoting surveillance of those attempting to access the platform. Such a wholesale ban on an expression and communication platform constitutes an arbitrary restriction and a significant violation of international law and fundamental human rights.
Recommendations
PEN America has made recommendations that, if implemented, will address the concerns raised in its submission. These include:
- Request that the U.S. Department of Education, particularly the appointed book ban coordinator, take all appropriate measures to ensure that school districts and their policies abide by the principle of equality and non-discrimination with particular attention towards LGBTQ+ communities and other marginalized communities. Consider implementing data collection and surveys of teachers and librarians on efforts to suppress free expression.
- Continue the U.S. Department of Education Office of Civil Rights (OCR) work in monitoring and ensuring compliance with Title IX of the Education Amendments of 1972 and Title VI of the Civil Rights Act of 1964 in school districts like Forsyth County Schools. This would include the OCR continuing to monitor school districts’ compliance with federal laws related to discrimination, harassment, and the creation of hostile environments. Encourage the OCR to conduct regular assessments of districts’ policies and practices to ensure that they align with Title IX and Title VI.
- Prioritize passing comprehensive data privacy legislation that protects users while respecting free expression rights. Implement rigorous mitigation measures that enhance data security, safeguard user privacy, and prevent any potential misuse of user data. Such provisions could include enhancing user education regarding privacy settings, data usage, and digital literacy. Empower users to make informed choices about their online interactions and data sharing.
PEN America also recommends that the U.S. government prioritize the principle of nondiscrimination and equality, the protection of the right to privacy and free expression, and safeguarding the rights of individuals and communities, including LGBTQ+ individuals, to express themselves through artistic and cultural means without undue restrictions. Read the report and more about the specific recommendations here.
The U.S. CCPR review encourages transparency and accountability within the US government. By engaging in this process, PEN America hopes to ensure that the U.S. government remains committed to addressing human rights concerns and upholding the rule of law.
