Should Free Speech Pessimists Look to Europe?
Free speech pessimism is on the rise among America's elites.
"Free Speech Is Killing Us," read a 2019 op-ed in The New York Times. Recently, an article in The New York Times Magazine concluded, "It's time to ask whether the American way of protecting free speech is actually keeping us free." George Washington University Law School professor Mary Anne Franks has written two books arguing that the First Amendment is "deadly" and "eroding our democracy."
This First Amendment rejection is often combined with envious praise for European-style speech regulations—rules seen as mature democracies taking proactive steps to shield themselves from the deluge of hate speech and disinformation that is a consequence of the unchecked right to free speech.
The allure of European regulation is understandable—they claim to protect democracies from the supposed harms of unregulated speech. After all, who can look at the world of the past decade or so and claim that free speech does not entail serious risks and even occasional harm?
However, this narrative overlooks the critical freedoms that American free speech protections provide. Furthermore, this pessimism is particularly dangerous at a time when the federal government is banning major platforms like TikTok, states are cracking down on pro-Palestinian protests, and online platforms are being forced to comply with vague hate speech laws.
These actions prompt a pivotal question: Would mimicking European free speech restrictions actually make America a more cohesive, tolerant, and just society? Let's imagine.
It's 2025. Two demonstrators burn an effigy of the newly inaugurated President Donald Trump, labeled "Death to the Dictator." They're quickly arrested and convicted for threats against the president.
Such punitive measures against symbolic speech are unthinkable under America's First Amendment protections, but it happened in Denmark. At a 2021 lockdown protest, three men burned an effigy of Danish Prime Minister Mette Frederiksen with a sign calling for her to be "put down." The men were initially arrested for high treason, a charge which was eventually downgraded to threatening a public official. After being acquitted in the first instance, they were later convicted by the High Court and sentenced to 40 days in prison.
Consider this hypothetical: A Republican-controlled Congress passes a set of laws to "strengthen the respect of republican values," permitting the federal government to issue decrees that designate and ban "extremist groups." Immediately, Congress bans Antifa and other far-left groups, arresting several members.
That may seem impossible to Americans, but in 2021, France's National Assembly passed a law aimed at reinforcing respect for "republican values" and combatting radical Islamic groups. However, this law was also used against more than 30 groups, including a collective of environmental activists.
Under a European framework, the next Biden administration wouldn't have to "jawbone" Big Tech to fight misinformation. Congress could simply pass a law that blocks online content deemed false or misleading and blacklists adversarial state-sponsored media outlets.
That sounds rife for abuses of power, but again, Europe led the way. In 2018, France implemented a law to combat the "manipulation of information," empowering courts to block false or misleading statements during election periods. Similarly, in 2022, the European Union suspended the broadcasting licenses of Russia Today and Sputnik. It also mandated that social media companies and search engines stop users from sharing broadcasts from these outlets in all 27 member states.
In this alternate America, states like California could go further in holding platforms legally accountable for user-generated hate speech while prosecuting residents with views deemed offensive on race, immigration, gender identity, or religion.
This is not a far-fetched dystopia. The 2017 German NetzDG law ordered social networks with over 2 million users to remove manifestly illegal content within 24 hours or face fines of up to 50 million euros. Predictably, a satirical magazine was one of the first casualties of the law.
Three months after a man from Hamburg called a local politician a "dick" on Twitter, now X, six police officers arrived at his house to seize his devices. The head of Germany's Federal Criminal Police Office warned that anyone who posts hate messages "must expect the police to be at the front door." As of 2022, over 8,000 criminal investigations were opened, and over 1,000 charges were made for illegal online speech.
The European Digital Services Act (DSA) aims to provide rules-based order in the so-called digital "Wild West." Although it includes more transparency and user rights, the DSA mandates platforms to act decisively against "illegal content." This covers very broad categories of speech, not to mention criminal defamation and blasphemy still enforced in countries like Italy, Denmark, and Austria. Such regulations not only curb free expression but also hand immense censorship power to the state, chilling the digital public square.
When riots broke out in France after police killed a North African teen, EU Commissioner and top digital enforcer Thierry Breton warned that "when there is hateful content, content that calls…for revolt," if social media companies don't act immediately, then the DSA allows authorities "not only to impose a fine but also to ban the operation" of the social media platform. Breton is not alone in promoting online dirigisme. French President Macron and his digital minister have also threatened social networks with blanket bans.
Political polarization is at an all-time high in the United States, amplifying the risk of such restrictive speech laws being adopted here as well. Threats to freedom of speech regularly emanate from both the left and the right, and without strong First Amendment protections, public officials on both sides would be unchecked in their partisan attempts to suppress dissenting voices, revisiting the oppressive measures of the Sedition Act of 1798 or the Red Scares of the 20th century.
The First Amendment is not without its critics and challenges. The alternative, however—a weakened commitment to free speech—would almost certainly lead to a society that is less tolerant, democratic, enlightened, innovative, and free. Indeed, even the most pessimistic among us can find hope in a robust and principled commitment to free speech. It is this robust protection that has fostered a resilient and diverse public discourse, capable of correcting its excesses without succumbing to authoritarian impulses.
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