Free Speech Historian Jacob Mchangama on Europe's Digital Services Act

A very interesting L.A. Times op-ed from a couple of weeks ago; an excerpt:

In November, the European Union's Digital Services Act took effect, with enforcement beginning for some businesses during the next year and for the rest in January 2024. The stated purpose of the law is to end the supposed "Wild West" of the internet and replace it with a rules-based digital order across the EU's member states. The sweeping piece of legislation includes an obligation for platforms to evaluate and remove illegal content, such as "hate speech," as fast as possible. It also mandates that the largest social networks assess and mitigate "systemic risks," which may include the nebulous concept of "disinformation."

This is in stark contrast to the U.S., where platforms enjoy broad immunity from responsibility for content created by users, and where the 1st Amendment protects against most government restrictions of speech….

Removing illegal content sounds innocent enough. It's not. "Illegal content" is defined very differently across Europe. In France, protesters have been fined for depicting President Macron as Hitler, and illegal hate speech may encompass offensive humor. Austria and Finland criminalize blasphemy, and in Victor Orban's Hungary, certain forms of "LGBT propaganda" is banned.

The Digital Services Act will essentially oblige Big Tech to act as a privatized censor on behalf of governments — censors who will enjoy wide discretion under vague and subjective standards. Add to this the EU's own laws banning Russian propaganda and plans to toughen EU-wide hate speech laws, and you have a wide-ranging, incoherent, multilevel censorship regime operating at scale….

The European policies do not apply in the U.S., but given the size of the European market and the risk of legal liability, it will be tempting and financially wise for U.S.-based tech companies to skew their global content moderation policies even more toward a European approach to protect their bottom lines and streamline their global standards. Referring to European legal standards may thus provide both formal legitimacy and a convenient excuse when platforms remove political speech protected by U.S. law, and that Americans would expect private platforms facilitating public debate to safeguard too….

Comments

[rloquitur]

If we banned Russian propaganda in the US, the environmentalists would lose a lot of funding.

[Dr. Ed 2]

If this is enforced, it will tear apart the EU -- https://www.dw.com/en/france-germany-tensions-hamstring-eus-capacity-to-act/a-63544901

The question I have is can the US extradite a US citizen to the EU for what is Constitutionally-protected speech here? What if no physical presence in EU?

Say Kelly Klansman lives in Idaho and has a quite popular neo-nazi website. Say she has a smoking hot body and models nazi bikinis (I can't imagine what one would look like, but say she does). Say she even sells these on-line and ships them to the EU.

Could Germany extradite her? Remember she's never left Idaho in her lifetime.

[Dr. Ed 2]

"Austria and Finland criminalize blasphemy, and in Victor Orban's Hungary, certain forms of "LGBT propaganda" is banned."

Ireland bans topless sun bathing while Germany allows full nudity. How long will it be before pictures -- legal in Germany -- get viewed in Ireland? As to blasphemy, it's also technically illegal in Massachusetts, but what happens if Austria or Finland is serious about it.

What is far more likely is Finland objecting to anything Russian (even the Russian language) -- they fought a very bitter war with them and have never forgotten it.

[DRM]

No.

Anything else aside, extradition treaties fall into one of two forms. The first and older form includes a long list of specific offenses that the treaty applies to. The newer form is based on "dual criminality" provisions, where if the offense is a crime in the laws of both the US and the other country, it is extraditable.

The US-German extradition treaty of 1978 was, I believe, originally of the first form, but the 2003 US-EU extradition agreement was at least supposed to amend all the older ones with the then-22 EU states into the newer "dual criminality" form. Either way, it isn't going to include out hypothetical bikini Nazi's speech, so she can't be extradited.

(Remember when the US extradited Marc Emery, the Canadian "Prince of Pot", and everybody was hyperventilating about how marijuana was legal in Canada so it was unfair? If marijuana had actually been legal in Canada at the time, he couldn't have been extradited, because the US-Canada extradition treaty is based on the "dual criminality" principle. If it isn't a crime punishable by least a year in prison under both US and Canadian law, you can't be extradited for it under the treaty.)

[Voize]

Dual criminality is a common requirement in extradition treaties.

Another is that the crime not be a political offense, a category that can include not only crimes of a political nature but what you might consider an ordinary crime with a political motive or occurring as part of a political struggle. It was on those grounds that a US judge denied a request from the UK to extradite Desmond Mackin who had been indicted in Northern Ireland for the 1978 attempted murder of a British soldier.

[Brett Bellmore]

"The question I have is can the US extradite a US citizen to the EU for what is Constitutionally-protected speech here? What if no physical presence in EU?"

The usual enforcement mechanism for these things consists of insanely large fines levied against the internet platform. And suddenly 100% of your revenue in the EU goes "poof", and maybe more than that.

A platform that derives no revenue from the EU, and just passively lets people in the EU access servers in the US? Might be able to ignore these laws, if all their employees were willing to give up on ever entering an EU country. One that does business in the EU would need the federal government having it's back to push back any.

[Kazinski]

Of course not.

The US has a policy of not enforcing extradition requests, or enforcing monetary judgments that violate constitutional rights.

[Ed Grinberg]

Constitution-hating leftists want to impose a similar "censorship regime" here.
And "liberal" judges, with their goal-oriented constitutional jurisprudence, are eager to help:
https://reason.com/volokh/2022/12/27/ninth-circuit-judge-urges-supreme-court-not-to-give-any-first-amendment-protection-for-racist-hate-speech/

[Rev. Arthur L. Kirkland]

"Constitution-hating leftists" and "goal-oriented" liberal judges

vs.

uneducated, superstitious, roundly bigoted Republicans and disaffected, delusional, can't-keep-up conservatives.

Where is the hope for America, Ed Grinberg/

[BravoCharlieDelta]

Definitely not under the piles of human feces on the streets of Democrat Utopia.

[Rev. Arthur L. Kirkland]

They can't all be West Virginias, West Texases, Alabamas, Wyomings, Idahos, or Mississippis.

[Krayt]

These people are on the march in Europe, with laws against various manner of things, like LGBT-positive speech and education.

In short, not dying out, but growing, and at the helm of power.

[bernard11]

These people are on the march in Europe, with laws against various manner of things, like LGBT-positive speech and education.

Led, apparently, by right-wing darling Victor Orban. Tell me again how it's conservatives who are the free speech heroes.

[bevis the lumberjack]

Orban has a doppelgänger in the current American left. I’d worry about him if there were a chance that he’d ever have power over me, but I’m not sweating a Hungarian invasion and won’t be moving there. My concern is enemies of free speech where I live.

[Rev. Arthur L. Kirkland]

The only guy who censors at this blog is Prof. Volokh.

[Dr. Ed 2]

He must be rather incompetent at it because you appear not to be censored...

[Rev. Arthur L. Kirkland]

Ask Artie Ray about that . . . But not at this blog, which banned him.

Or try to use any of the words Prof. Volokh has censored, repeatedly.

[bernard11]

You misunderstand.

I'm not sweating a Hungarian invasion either.

I do worry about those who admire Orban, and think his ideas and policies are just jim-dandy, coming to power here, because they might very well decide to try to emulate him.

And if you don't think he has a lot of fans on the right here you need to rethink.

[Steve Griffin]

Inadvertently urging the reader to imagine what a Nazi bikini might look like could cause them to miss the main point.

[TwelveInchPianist]

The US should make it a crime for any foreign official or judge to use foreign law to interfere with a US person's first amendment rights.

[bevis the lumberjack]

How do you suppose we would enforce that law?

[Rossami]

The same way we enforce anti-foreign-bribery laws?

Or the way that some foreign jurisdictions enforce their laws extraterritorially against US government agents and business owners? (That is, by conducting the trial, then deferring sentence until the person takes a vacation to a jurisdiction they can reach.)

[Eric Owens]

#DanielHale
#94CrimeBill
#GhislaineMaxwell

Just here to find out when we start Fed Gov’s Nuremberg Trials.

[John F. Carr]

The US tech company can set a flag on content saying it is banned in the EU, and restrict visibility based on geolocation or account home country. The photo site Flickr once banned German accounts from seeing sexy pictures because of some small difference in German law related to the rest of the West. I forget the details. Possibly their age verification was not up to German standards.

[Rossami]

re: "restrict visibility based on geolocation or account home country"

That's a lot harder than it sounds (and a whole lot harder than the marketing hype of the companies that claim to sell those solutions). It's also trivially easy to defeat.

In countries where a 'good faith' or 'best effort' standard applies, that's probably sufficient. But in jurisdictions with a strict liability standard (and depending on the day and the judge you pull, that could include the EU), that won't be nearly enough. The answer, according to those judges, is that of course they get to export their local law to your international company. You consented when you decided to let our people read your stuff. If you don't like it, then the best you can do is to not have any assets attachable to the inevitable judgement against you.

[Archibald Tuttle]

Could the platforms evade expensive staffs for enforcement if they just took down all content after 1 hour, or 1 day, or 1 week, or whatever?

Only bad things can result from your 10 year old Facebook postings. Why would anyone person want to keep their old posts?

[M L]

"This is in stark contrast to the U.S., where platforms enjoy broad immunity from responsibility for content created by users, and where the 1st Amendment protects against most government restrictions of speech…."

But apparently US government agencies had Twitter kick off some 250,000 users?

They are just censoring people willy nilly, whoever says things they don't like gets banned. Barely a pretext. Oh, wrongthink? That's COVID misinformation. Inconvenient facts? We call that Russian disinformation. Banned. The government pays the social networks, that's one carrot. And sticks? Threat of regulation of course, particularly things that unelected bureaucrats can do and don't require an act of Congress (of course the realm of those things are increasing exponentially). Like deciding that a vastly more efficient Tesla vehicle will be denied a $7,500 tax credit that will go to gas hybrids. But more than that, the corporate and financing cartels are becoming more and more hyper activist. Government policy including increased regulation and spending helps to further centralization of industry and monopolies which further enables these goals.

In the US we still have a legal principle of free speech to fall back on, for now. That is as durable as a couple of judgeships, and won't last if some have their way.

[Rev. Arthur L. Kirkland]

Are you happier now that Twitter is banning liberals rather than lying, bigoted, delusional right-wingers?

[Mr. Bumble]

I'd be "happier" if EV would ban you.

[Rev. Arthur L. Kirkland]

He has done it before.

He might do it again, if you ask nicely. Perhaps throwing in a vile racial slur would improve your chances.

[David Nieporent]

But apparently US government agencies had Twitter kick off some 250,000 users?

No. People are lying to you again. Never happened. It's a flat out lie. (Go look at the email from the government to Twitter that this is about. It expressly says that it isn't asking Twitter to take any action at all.)

[bernard11]

Yes. People are lying to him. In the same sense that the guy who tells you he's going to get you a safe 20% return on your money is lying to you.

Sometimes the problem is in the uncritical eagerness to believe as much as in the lie itself.

[Greg J]

" It expressly says that it isn’t asking Twitter to take any action at all"

Are you pathetically stupid?

Or do you just think that we are?

If they didn't want Twitter to take any action at all, they wouldn't have written the letter.

You are really pathetic. Almost as pathetic as the story line you're pushing, now that your previous lies about "it's just a private company, they can do whatever they want" are blowing up.

[David Nieporent]

Oh, I absolutely think you are.

[Greg J]

You're so special

But then, we knew that when you tried to claim that "nice site you've got there, be a shame if something happened to it" wasn't a threat & demand for action.

The nice thing about visiting this site is a get to see the depths of stupidity required to be on the Left that remind me what it's so great I'm not on the Left

[Stephen Lathrop]

Referring to European legal standards may thus provide both formal legitimacy and a convenient excuse when platforms remove political speech protected by U.S. law, and that Americans would expect private platforms facilitating public debate to safeguard too….

The whole OP was going along fine, until it got to that at the end. Informed Americans will expect this nation's private internet publishers to do as they please, pursuant to their rights under the press freedom clause. What Americans should expect is variety among what publishers choose to offer. What Americans should want is something they do not now have—a vast array of smaller, private internet publishers, each editing according to its own lights, and competing to fill any unattended opinion niches. That is an outcome present internet giantism—encouraged as it is by Section 230—largely precludes.

[Greg J]

Informed Americans will expect this nation’s private internet publishers to do as they please, pursuant to their rights under the press freedom clause.

You mean like they did when corrupt FBI agents asked them to censor news abotu Hunter Biden's laptop?

What Americans should expect is variety among what publishers choose to offer.

You mean like with Hunter Biden's laptop? Where tehy provided a variety of different ways to censor anythign that exposed Democrat corruption?

What Americans should want is something they do not now have
Which is Leftists not having power. Since always and everywhere, Leftists are nasty censoring and unprincipled scum, who believe in nothing other than power for themselves.

FIFY

[Stephen Lathrop]

Based on his Wikipedia article, McHangama seems not to be a free speech historian, nor any kind of historian at all. He seems to be a lawyer and public intellectual, who published a 40-episode podcast purporting to be a history of free speech. It seems to have been well-received, by people who are also not historians.

I might very well approve, or even be inspired by McHangama's take on free speech. But the nit I pick about history remains important anyway.

The Supreme Court itself pretends historical competence it clearly lacks, while it hands down decisions based on historical mis-impressions, and unsound historical reasoning. Many on this blog cheer that on, because they like the results that botched appeal to historical authority delivers.

In choosing his headline, Professor Volokh shows himself as dimly acquainted with the question what constitutes history as the benighted Supreme Court has been. So long as claims continue for originalist-stye legal analysis, it will remain important to insist on historical rigor sufficient to underpin and constrain the resulting legal opinions. At the very least, that means noticing which would-be authorities have been trained in historical methods, and which have not.

[SimonP]

Not surprising. Eugene's standards have been slipping. See, e.g., the inclusion of Josh Blackman on this board.

[David Nieporent]

Once again: nobody appointed you the gatekeeper for being a historian. A historian is someone who studies history (I mean, as a producer, not a consumer).

[Stephen Lathrop]

A historian is someone who studies history (I mean, as a producer, not a consumer).

Nieporent — Right. And this guy hasn't done that, at least insofar as anyone can see from his Wikipedia biography.

Turn it around to see why you are not making sense. Somebody who never went to law school, never passed the bar, never practiced law, and has never been in a courtroom professionally gets characterized by someone else in a headline as a, "lawyer." Get it? The only reason you don't get it is because you suppose a lawyer's education and qualifications are somehow real in a way that a historian's are not. About that you are mistaken, big time.

To "study history," is not merely to wing it on some historical topic. History has methods which are not easy to learn, and even harder to put into a sound factual context to make them work. Lawyers, obviously including you, typically do not even suspect that part exists.

In fairness, I have been careful to limit my commentary to what I can find out lazily by a Wikipedia check. Nothing there supports your critique. But there could be more in McHangama's complete biography which would make me reassess.

[benji]

Well, as a historian let me say that McHangama's free speech history book is excellent.

[Greg J]

I really look forward to Hungary taking Social Media companies to court for violating their laws.

After all, you all were big fans of Democrat members of Congress getting social media companies to censor people you don't like.

Because apparently you all are a bunch of blithering morons who were sure it could never happen to you.

So to every single person who ever defended Big Tech censorship after Democrat politicians started demanding it: FOAD

You have no free speech principles, there is absolutely NO reason why the speech you like should EVER be protected

[arch1]

“Austria and Finland criminalize blasphemy…”

I thought Finland too enlightened for that.

[SimonP]

Well, I'll wait to see what happens, Chicken Little.

Meanwhile, perusing the comments here, I can't say that I'm certain that a more restrictive approach to "free speech" online would result in much loss of value. It'd maybe be best for the rest of us if some of you didn't have a platform.

[Ed Grinberg]

It’d maybe be best for the rest of us if some of you didn’t have a platform.

How enlightened & tolerant of you! Let me guess: you call yourself a liberal, right?

[gormadoc]

Are you talking about LGBT in Hungary, critics of Mohammed in Finland and Austria, publishers of video games that have Nazis in Germany, or people who insult the church in Poland? Which of those people shouldn't have a platform?

[Greg J]

"It’d maybe be best for the rest of us if some of you didn’t have a platform."

Well, it's clearly the best for every decent human being that YOU not have a platform