It’s happened many times before: As soon as someone is rubbed the wrong way by something, they start screaming “Discrimination!” For many people, the word “discrimination” signifies everything they don’t like, everything that bothers them personally. You failed a test? Discrimination! You lost your attendance bonus? Even more so! Everything that’s offensive and humiliating is “unjust,” and injustice is seen as discrimination. Even though the injustice of an evaluation or punishment must be proven, it is even harder to prove discriminatory grounds (on the basis of race, gender, religion, health, sexual orientation and gender identity, and so forth) for this injustice. But people regularly forget this and view discrimination as “I’m under attack!”
Allegations of discrimination against Russian media outlets by “foreign internet platforms” are a glaring example of this. The journal “International Affairs” (whose board is chaired by Russia’s Minister of Foreign Affairs) published a pretty infographic on its website underlining that discrimination “has become systemic in nature.” But do these international jurists even know what systemic discrimination is? What UN and Council of Europe experts mean by this term is the exclusion of minorities due to widespread but often unconscious discrimination based on a fundamental characteristic (ethnic and religious groups, women, persons with disabilities, LGBTI+ people). This type of discrimination is pervasive for the Roma population, for example. Clearly, the dramatic story of how YouTube “placed restrictions on five accounts” does not in any way fall under this definition. But something else does—the persecution of everything “foreign” and the disenfranchisement of the rights of dual citizens, foreign media outlets and internet platforms, and NGOs and natural persons who have been declared “foreign agents.”
Constitutional Court judge Konstantin Aranovsky expressed this idea perfectly in a dissenting opinion to a decision on an appeal to the law on the media, which restricts the rights of foreign owners. There’s a good reason why the government had the foresight to ban Constitutional Court judges from having a “dissenting opinion” before a slew of new laws against the media were adopted! Here I will quote large excerpts of Aranovsky’s opinion: “The foreign origin of persons, capital, ideas, and so forth cannot in and of itself pose a threat to constitutionally important values. The multinational people of the Russian Federation adopted their Constitution and recognized themselves as a part of the world community, as explicitly set forth in the Preamble.” And then: “Lawful restrictions on rights and freedoms are protective in nature and are specifically intended to safeguard constitutional values (objectives)…nothing can be ‘more useful’ in the Russian constitutional order than human rights, which are given the highest value in this system. No other benefit or public interest can be favored over them in the influential attitudes and intentions of the government.”
Judge Aranovksy warned that if the authorities are allowed to control the distribution of information “with the right to ban ‘suspicious people’ (foreigners and dual citizens, for example) from distributing this information, then what arises is censorship and control over minds and opinions, which contravenes the provisions of Article 29 of the Constitution.” Aranovsky demanded that the idea of a “threat” lurking in foreigners be “establish[ed] and prove[n] in constitutional proceedings in terms of actual existing dangers and sources of risk,” otherwise, “restrictions on rights and freedoms will go beyond the constitutional framework.”
Aranovsky also mentioned a different Constitutional Court decision regarding the law on NGOs. This decision stated that: “Russia ‘does not imagine itself’ outside of the world community” and that foreign financing of non-governmental organizations “does not put their loyalty to the government in doubt.” Anything else would contradict the Constitution, which obligates the state to safeguard, and not diminish, human dignity. Under the Constitution, even the status of “organization performing the functions of a foreign agent does not presuppose a negative appraisal of” or “a negative attitude towards the organization’s political activities” and “cannot be taken as a manifestation of distrust or a desire to discredit,” while a foreign residence permit does not diminish a citizen’s rights or serve as a ground for denying the citizen the right to be a member of an election (territorial) committee.”
Alas, there is no memory of last year’s dissenting opinion, which directly stated that “xenophobia is an old and persistent reflex that is more likely to confuse than to point to actual risks… so that foreigners are feared and blamed for everything” (thus recognizing the disenfranchisement of the rights of foreign media outlets and other organizations connected with the “world community” as xenophobic and, consequently, discriminatory). The latest bills also void the Constitutional Court’s cautiously-worded decisions, which, even though they did not find the stamp of “foreign agent” unconstitutional, did extensively explain that in and of itself this stamp “cannot be taken as a manifestation of distrust or a desire to discredit.”
Now, when every person who ends up in the register has to demonstrate of themselves or another person that they are an agent or “affiliated with a person performing the functions of an agent,” when this stamp does not allow people to run for election or hold municipal positions, when foreign media outlets and platforms can be blocked or “slowed,” and when an NGO can simply be shut down (specifically because of distrust and a desire to discredit), all of the Constitutional Court’s previous rhetoric seems like “a faculty of useless knowledge,” just like the desecrated Constitution itself.
First published on the blog of Radio Svoboda