Americans Should Reject European-Style Online Censorship

COMMENTARY

There is an online meme, hewing loosely to this format: “We fought a war so we wouldn’t have to deal with …” Insert, as the punchline, reasons for which the American Revolution was in fact fought (e.g., kings and oppressive taxation); or, more comically, reasons for which it certainly was not, such as the metric system, organ-dominant meat dishes and the widespread enjoyment of soccer.

Free speech stands squarely in the former category. The First Amendment secured all Americans against federal trespasses on the freedom of speech.

“Conscience is the most sacred of all property,” James Madison wrote, and he sought, in vain, to include in the Bill of Rights an explicit right to free conscience (he settled for what became the First Amendment.) Offering his draft amendments in 1789, the Virginian knew that he proposed to break from the British tradition. “The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution,” he said on the floor of Congress. America would not replicate this failing.

A little more than a year away from her semiquincentennial birthday, America seems to be developing an interest in importing European speech regulation. Lawmakers stateside aren’t keen on criminalizing public prayer or blasphemy. Yet continental laws controlling online platforms and online speech seem more tantalizing. An odd phenomenon plagues tech-policy debates: What’s unthinkable censorship in the physical world is often rebranded “common sense” in the digital one.

Considering tech-policy proposals, lawmakers and pundits seem to assume that, online, ordinary constraints ought not apply.

Consider, for one, the Kids Online Safety Act. As reported by the Competitive Enterprise Institute’s Jessica Melugin, this bill, now before Congress, shares source material with the European Union’s Digital Services Act and the United Kingdom’s Online Harms Act. The DSA deputizes (read: coerces) online platforms to repress disfavored speech. Under that law, EU authorities have pursued Elon Musk’s X for, among other things, the supposed crime of permitting disinformation — that is, for permitting speech to be too free on his platform for the taste of the European Commission.

Says Dr. Matthäus Fink, a German speech enforcer: “They don’t think it was illegal. And they say, ‘No, that’s my free speech.’ And we say, ‘No, you have free speech as well, but it … also has its limits.’” Those limits have been found by the roughly 750 defendants Fink says his unit has convicted of online speech “crimes.” In the U.K., law enforcement in 2023 arrested (at least) 12,183 speakers under section 127 of the Communications Act of 2003, a law that criminalizes speech made over communications networks that authorities find “grossly offensive,” “indecent, obscene, or menacing,” or “false, and sent to cause annoyance or distress.” That comes to an average of more than 30 arrests per day.

Undoubtedly, many victims of such laws have said things Americans would call “awful but lawful.” Many others have not.

The persecuted include: an autistic U.K. woman who referred to her lesbian grandmother as a lesbian; a German man who referred to a politician as an anatomical vulgarity; an American in Germany who employed a swastika as a rhetorical device to criticize the country’s COVID-19 policies; a U.K. couple who made trouble for their daughter’s school leadership in a WhatsApp chat; and myriad other cases. Politicians have — all too predictably — exploited censorship laws. “Robert Habeck, a leader of the [German] Green Party, has initiated over 800 criminal complaints since taking up his position as vice chancellor in 2021,” writes Yascha Mounk.

Free speech has flourished on the internet, but communication over online platforms provides new weapons to censorial politicians. The blessing presented is more and freer information than ever before; the curse is that information conveyed on vulnerable platforms can readily be stifled and manipulated by small-minded governments. 

Technology liberates, but if misused by the state it threatens and enables authoritarianism. As Winston Churchill noted, the utter tyrannies of the ancient world could not be equaled until would-be tyrants had at their disposal the technologies of the modern world. As The Economist put it, “The root cause can be found in the country’s speech laws, which are a mess and ill-suited to the digital age: Brits are prosecuted for the sorts of conversations they would have had in the pub.”

Policemen cannot hear every conversation between friends, yet with heavy-handed online regulation, they can snoop on nearly everything friends say to one another in the digital domain.

In the online age, America must recommit itself to its heritage. It must buttress its fortifications of free speech, not suffer them to decay. The European model must be spurned.

We fought a war, after all.

David B. McGarry is the research director at the Taxpayers Protection Alliance. He can be found on X.