Free Speech

Europe Escalates the Threat to Online Free Speech

While Americans debate what should be allowed on social media, the EU wants government to decide.

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It's easy to overstate, but attitudes towards freedom of action differ in the United States and the European Union. Americans tend to believe that people have a right to make their own decisions and are better trusted to do so than coercive governments; Europeans place more faith in the state, allowing room for personal choice only after officialdom installs guardrails and files away sharp edges. Yes, that exaggerates the case and there are plenty of dissenters under both systems, but it captures the treatment of speech and online conduct in the EU's new Digital Services Act.

"Today's agreement on the Digital Services Act is historic, both in terms of speed and of substance," European Commission President Ursula von der Leyen commented on April 23. "The DSA will upgrade the ground-rules for all online services in the EU. It will ensure that the online environment remains a safe space, safeguarding freedom of expression and opportunities for digital businesses. It gives practical effect to the principle that what is illegal offline, should be illegal online. The greater the size, the greater the responsibilities of online platforms."

There's a lot in the proposed law, as you would expect of wide-ranging legislation paired with a companion bill addressing digital markets. The overall tone is of micromanagement of online spaces with dire consequences for platforms that fail to protect users from "illegal and harmful content" as defined by the government. Those who violate the rules by, for example, repeatedly failing to scrub forbidden material in timely fashion, face massive fines or expulsion from the EU market. Of course, no matter official assurances, speech hemmed in by red tape and subject to official oversight in monitored spaces isn't especially "free" at all, which is a contradiction recognized by critics.

"The DSA does not strike the right balance between countering genuine online harms and safeguarding free speech," Jacob Mchangama, the executive director of Copenhagen-based human-rights think tank Justitia, warns in Foreign Policy. "It will most likely result in a shrinking space for online expression, as social media companies are incentivized to delete massive amounts of perfectly legal content."

Mchangama is the author of the recently published Free Speech: A History From Socrates to Social Media, which Katrina Gulliver reviewed for the May issue of Reason. He's familiar with differing attitudes towards speech around the world. In particular, he understands that the American approach leaves speakers more room, while the European approach favors those who impose constraints.

"While free speech is protected by both the EU Charter of Fundamental Rights and the European Convention on Human Rights, these legal instruments offer governments much greater leeway than the First Amendment of the U.S. Constitution when it comes to defining categories, such as hate speech, that can be regulated," he adds in the Foreign Policy piece. "Nor does European law provide as robust protection against intermediary liability as Section 230 of the Communications Decency Act, which shields U.S. online platforms from liability for most user-generated content."

But the danger isn't just to Europeans who voice edgy opinions or manage online forums; it's to the whole world through the "Brussels Effect." That is, it's easier for large platforms like Facebook to apply Europe's tight rules to everybody than it is for them to vary rules by country, which is complicated and risks the wrath of EU regulators when speech inevitably bleeds across digital borders.

Of course, some people hope that the Digital Services Act becomes a global standard. Just as Mchangama is a European who sees free speech as a right that favors the powerless over those in authority, there are American fans of the EU approach who want officialdom to exercise more control.

Reacting to the announced sale of Twitter to Elon Musk, The New Yorker's John Cassidy objects that "Musk seems intent on taking Twitter back to the not at all distant era when social media was a free-for-all." He sniffily dismisses that prospect as unacceptable. For proper regulation of speech, he suggests "the E.U. has just provided a road map for how it could be done: by putting the onus on social-media companies to monitor and remove harmful content, and hit them with big fines if they don't." 

"Musk would surely object to the U.S. adopting a regulatory system like the one that the Europeans are drawing up, but that's too bad. The health of the Internet—and, most important, democracy—is too significant to leave to one man, no matter how rich he is."

But, as the Competitive Enterprise Institute's Clyde Wayne Crews Jr. warned in 2019, "the dangers of social media company, legislative and 'watchdog'-backed mandates to censor speech and otherwise regulate 'harmful content' are themselves the harms facing the Internet of today and the splinternet of tomorrow. Some authoritarian-minded interventionists seek a pre-ordained deplatforming of unpopular ideas and controversial debate and even pretend they protect democracy."

Such restrictions put the definition of "harmful" in the hands of self-serving political operatives and favor large established and, yes, rich companies, for whom compliance is easier, over smaller firms.

"Social media giants and international governments engaging in censorious consultative alliances and frameworks incorporating politically derived norms threaten free expression even in the U.S.," Crews added.

Justitia made a similar point about Germany's censorious 2017 NetzDG law. "In under a year, the number of countries copy-pasting the NetzDG matrix to provide cover and legitimacy for digital censorship and repression has almost doubled to a total of 25," the think tank noted. The German law inspired copycat "measures to combat vaguely defined categories of hate speech and fake news by placing responsibility on the social media platforms for user content."

Beyond the framework of individual rights, the practical argument for free speech is that the powers-that-be can't be trusted to distinguish "good" speech from "bad speech" and to ban only that which is harmful. As Justitia emphasizes, that has already happened with NetzDG. There's no reason to expect a less authoritarian outcome from the Digital Services Act which borrows much from the German law.

Mchangama proposes using human-rights law as a benchmark for speech regulation, though he concedes that it's "not a panacea." More promising is his suggestion for "distributed content moderation" including "voluntary filters that individual users could apply at will." People could decide for themselves what is "harmful" and block or engage as they pleased. That might satisfy everybody except those most invested in controlling others.

Fans of regulated speech always seem to envision the regulators as sharing their own sensibilities in the exercise of censorship powers; they never imagine themselves being muzzled. But the "free for all" to which they object means freedom for them as much as for everybody else, and if they get what they want they may come to miss it as much as the rest of us.

NEXT: Labor Econ Versus the World

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  1. "While Americans debate what should be allowed on social media"

    According to Reason contributor Noah Berlatsky, hate speech should not be allowed on social media. In fact it should not be allowed anywhere. The government should ban it.

    #IsntItCoolHowOftenReasonWritersBecomeProgressiveDemocrats

  2. While Americans debate what should be allowed on social media

    The executive branch unilaterally setting up a ministry of truth is "debating"?

    1. Lmao I came to say the same. How out of touch must jd be to write this article at least two full days after Biden/mayorkas nominate some Krazy kackling kunt not named kamala to be his minister of truth.

      Fuck why did I even come back to reading this shit.

      1. 95% of why I'm here is the comments. You can still get a libertarian perspective on the world here. It's just not from the articles.

        1. Libertarian and, aside from the zero-thought "Why shouldn't Disney get special protections to lobby schools to sexualize minors? You homophobe." crowd, actually progressive, liberal, and diverse perspectives.

    2. I too was going to post the same. It would be reassuring if the writers would on occasion read the comments to their articles and perhaps issue a post script clarifying or correcting but I can’t hold my breath that long.

    3. First Minitruth, then Minilove, Miniplenty, and Minipeace.

      1. Don't forget MiniMe!

        1. Did he finally make his way into Fat Bastard’s belly? Maybe they had a shit baby, and named it Chemjeff. That would explain a lot.

      2. When do we get our first 5 year plan (and work quotas)?

      3. I believe, in this case, Minitruth was created by Minilove.

      4. and Minnie Mouse (who identifies as a rat)

  3. If you want to protect democracy by limiting free speech, then you do not support democracy as you do not trust the electorate to evaluate the debate on issues in a reasonable manner. If you think free speech is dangerous to proper governance, then you want "democracy" as a cover for an oligarchic clique.

    1. Get woke! In this glorious century of justice, Democracy! has nothing to do with liberty.

  4. I realize that half the problem is almost none of the large companies in this country actually care that much, but the proper response to the EU and UK on this shit is "Here's how to set up a VPN. We're an American company and we're going to follow the American Constitution and American Law. Feel free to come sue us in American courts to enforce your censorious legislation."

    Fuck it, operate a major VPN endpoint to make it really easy. If a dozen major US tech companies set up open Wireguard peers, there'd be so much bandwith the EU and UK couldn't do anything except mewl piteously about it.

    1. VPNs are coming under legal pressure too.

      "A group of over two dozen film studios has repeatedly taken popular VPN providers to court, sometimes extracting judgments worth millions of dollars in damages. While piracy remains the central issue, recent legal arguments employed by Hollywood studios have surpassed accusations of copyright infringement and delved into dirtier waters.

      Filmmakers attempting to recoup revenue lost to piracy have long alleged that VPN companies both encourage online privacy and have clear-cut evidence that their customers are abusing the privacy and security provided by virtual private networks. But court records show that studios’ legal teams have also accused VPN providers of enabling illegal activity far beyond copyright infringement and, legal experts say, are challenging the notion that VPNs should exist at all."
      Hollywood’s Fight Against VPNs Turns Ugly: Beyond accusations of encouraging copyright infringement, film companies have begun accusing VPNs of enabling a slew of illegal activity.

      1. All the VPN ads I have seen brag about using them to view content you couldn't otherwise see due to your IP address being a verboten country.

      2. And I strongly suspect that if Musk were lobbying for the other side the obvious 1A case would win.

        And it's a stupid argument anyway. VPN isn't the same as TOR. Anyone they track to a VPN company, if they have the appropriate subpoena, they should be able to turn into a customer name.

  5. Too bad for them, but Euro-peons have no heritage of libertarian systems. They went from centuries of monarchies and theocracies to statist collectives and deep bureaucracies. And they also have centuries of inbred ethnic and social tribalism.

    But according to American elitists, we should be more like them.

    1. Well, according to American statist collectivists and deep bureaucrats, anyway.

  6. Thanks sharing updates birthday wishes at hbvibes

  7. Will be interesting if Elon is crazy/bold enough to go for the nuclear option and just leave Europe entirely from a corporate perspective so there's no one to sue. Watch Brussels scream as their only option is to arrest their own people for illicit VPNing or try to take Musk to court in the US and watch hijinks ensue.

    1. It would be even better if Europeans got sick of this and grew enough balls back to overthrow and execute their socialists.

    2. I mean... in his shoes, I would.

      "Fuck you, come sue me in the country I'm in."

      The obvious lever of fucking with Tesla applies, though.

      1. Though given how much lipservice they pay to Global Warmening, it'd be pretty obvious hypocrisy.

      2. Obvious? More like "explicit". They literally threatened that.

  8. Why can’t they just say that they are advocating for a return of Heresy Laws, and acknowledge that we need an updated version of the Inquisition to enforce them and mete out punishment (hopefully stopping a little short of an auto de fey, but you never now).

  9. It looks as if Hitler didn't need to invade western Euorpe at all.
    They turned fascist all by themselves. Unfortunately those stuck within the confines of the EU discovered too late the creation of a totalitarian dictatorship under the guise of let's all get together to form a more perfect union.
    What the people got was the destruction of their own borders, the destruction of their societies by external invaders and the loss of whatever freedoms they had in the name of socialism.
    The government in Brussels is as corrupted and malevolent as any other authoritarian version.
    Musk would do well to avoid providing service to the European Union.
    Let them wallow in their own noxious dogma.

    1. Hitler did invade western Europe. Perhaps you meant Stalin.

      Don't fall for the leftist trope that Hitler was worse than Stalin.

      1. Right. Yes, he invaded. But he didn't need to invade, because they fucked themselves.

        I don't know how you interpreted that as saying Hitler was worse than Stalin.

      2. He meant that European leftists embraced the Nazi ideal all by themselves. As have the democrats who are territorial residents of the US.

    2. But its not the bad, mean fascism of the 20th century, based on racial superiority and hate. Its the new, improved fascism based on intellectual superiority and empathy.

        1. I think the point is the turn of Old Saul's: 'If you sit down at the poker table and can't identify the sucker, get up. You're the sucker.' The Germans didn't hate the Jews, they were just racially, morally, and intellectually superior to them and mercifully putting them out of their misery. Ensuring the future of humanity for the next thousand years. Most Nazis/Germans were just following orders and/or The Science, not hating.

  10. the EU wants government to decide

    Someone's 36 hours behind the curve.

  11. LOL anything that AMERICA has done recently that threatens online speech?!?!?!?

  12. Don't worry, the Disinformation Board will help us catch up to Europe.

    1. Europe is a Russian hoax.

      1. *Flags Comment*

    2. The disinformation board will ensure that many, many democrats will end up in landfills.

  13. We are already copying Germany, East Germany that is, with our brand new Stasi-enforced ministry of truth.

    1. ^EXACTLY.... Well Said - Just repeated that 🙂

  14. And her in the USA Biden's DHS; Is started another UN-Constitutional ?CDC? just to do EXACTLY what Europe is doing.

  15. I find the idea behind this sentence from the editorial quite common among libertarians:

    "Americans tend to believe that people have a right to make their own decisions and are better trusted to do so than coercive governments...", the author writes.

    But that's only part of a familiar equation stated quite well by John Stuart Mill in the 1860s. Yes, we do have a tendency to be capable of making our own individual decisions in regard to our rights, but Mill advises, but only if we are reasoning adults.

    There, right there, is where the country's social media problem emerges.

    I'm no spring chicken. I remember when and how the political discourse in the US began to coarsen. In the late 1980s, with the Reagan era's abandonment of The Fairness Doctrine in 1987, the ad hominem (or personal attack) has been the modus operandi of "conservative" news/propaganda, AM talk radio, and even this very comment thread. Ad hominem is a rhetorical fallacy that seeks to divert an opponent's attention away from the issue at hand. It's also a tactic of bullies.

    Is there any escape from noise? A society is only as competent as the moral fiber of the individual, and if the individual is sinking into something amenable to Honey Boo Boo, the government may have to step in to address missing equilibrium.

    Sad but true, but this is one case where "personal responsibility" is potentially one way to address garbage on the web, but that means people, like the god forbidden market, might have to learn how to self-regulate.

    1. Oh fuck. You're funny. The left called the right every name in the book while Reagan was in office. They labeled them racists etc. Guess you must consider those not ad hominems. What a fucking joke. The fairness doctrine only kept Republicans from responding, once they were allowed to push back, they got blamed for the coarsening not the ones who started it. Fuck, rewrite history much?

      1. The Fairness Doctrine certainly didn't put Richard Nixon in an iron mask, did it. All The Fairness Doctrine advocated was that news organizations refrain from "politicized" dissemination of information that only serves one faction. The myth of "the Liberal media" is nothing but a marketing gambit.

        And your use of "the Left" is nothing more than a crass overgeneralization. Sure. Some people called Reagan a racist. But "the Left"? Seriously? "The Left" isn't a human individual. How can "the Left" even speak?

        "The ones who started it". That's rich. Hilarious, even.

        1. > "The Left" isn't human.

          Fixed.

          1. It's an abstraction that is a pointless exercise in its use if not supported by context, background, history, and evidence. In a rational society where civil government and representation are the rules, one's opponent is not "the enemy". Only in despotic societies is such a concept, subject as it is to the extremist either--or kind of false choice, does such nonsense find a home.

            1. You employ many words to say little. You have expertly showcased your meager little sack of writing talent for us.

        2. The media is a a hive mind of Marxism.

          1. You mean the collective of libertarians isn't "a hive mind" too?

            1. ‘Collective libertarian’ is a contradiction in terms. But I suppose to an obtuse individual, such as yourself, it might appear otherwise.

              Gordon, you are an insect among gods.

    2. People overuse "ad hominem." An ad hominem is a license to ignore an argument because of the person making it.

      "I don't have to listen to you, you're a commie" is an ad-hom.

      "You advocated for positions X, Y, and Z, which are commie positions, and therefore you can fuck off" is not an ad-hom. It's a personal attack, but it addresses the argument.

      1. Maybe you might be served well by referring to "ad hominem" in Wikipedia. That might be a fairly good beginning. There are even websites that list rhetorical and logical fallacies, ad hominem among them. And ad hominem is not "license" to ignore someone. An ad hominem is an unwarranted personal attack that bears no evidence to support the claim. Do you know anything about the concept of persuasion? Try this: claim, warrant, evidence.

        The "tu quogue" ["you also"] rhetorical fallacy is one in which someone seeks to undermine an opponent's argument by impugning his or her affiliations. In the example you use, "so and so is a commie" is dependent on the base prejudice that "commies are bad".

        What would be the warrant for calling someone a "commie" when that someone isn't one? And, all the time, on many comment threads, and even in newspaper articles, magazines, and on television, we see this very claim made without warrant, and especially, without evidence.

        1. It’s usually made with warrant. You hand waving it away doesn’t make the horde of Marxists not Marxists. You’re just an overly verbose pseudo intellectual making arguments even more factless than those you accuse of doing the same,

          You sound like my aunt. She’s a commie too.

          1. So. The biggest domestic threat to the US is the "collective" of people intent upon state ownership of all capital and property, including the means of production?

            Keep flapping your lips. I need a little comedy today.

            1. I would be flattered, but it takes little talent to amuse an imbecilic fool, such as yourself.

    3. Or we could legalize getting punched in the face for running your mouth.

      That's a much healthier way of regulating civility than MiniTru.

      1. Given our legal system is ritualized combat without violence, it's no wonder that those in competition or who oppose someone's viewpoint, then choosing to resort to violence, is illegal. Brutality isn't civilization. It's not healthy at all.

        1. We need a good dose of brutality. Your assertions are garbage. For example, bringing back dueling would do wonders for civility. Had Bret Kavanaugh sought satisfaction for the Democrat’s baseless attacks on him by shooting Chuck Schumer dead in a legal duel, things would be far better.

          Democrat scum like Schumer should live in mortal fear of their statements and actions.

          1. I guess I am to assume from your attitude on display in this comment thread that you actually hate civil society. Ever tried anger management? You might be able to discover the root causes of it. I'm thinking maybe your nihilism is driven by a sense of both powerlessness and alienation. Oftentimes, people who have lost all semblance of meaning in their lives are the first to jump into autocracy.

            1. I’m the civilized one. You’re a pseudo intellectual leftist spouting soft headed nonsense. If your kind were kept down, this country would not be in the dire situation we now find ourselves.

              And if you think Americans are powerless, then you learned nothing from the lessons you should have learned from Kyle Rittenhouse. So crawl back under your rock, while you can.

              1. ^^^"doesn't get total agreement. Begins to threaten people for it."

                The definition of childishness.

                1. ^^^^^^^ dull witted fool with weak reading comprehension. ^^^^^^

                  The definition of a leftist, such as yourself.

                  1. Anyone who believes Kyle Rittenhouse's murder of two people has a message for "leftists" isn't exactly the sharpest tool even though he's probably at least a tool.

                    1. You just proved your idiocy. The whole thing was on video. Straight up self defense the whole way.

                      You are one stupid cunt.

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