Americans, Don't Envy European Speech Codes!

Robust free expression is worth defending, even if it comes with significant costs and tradeoffs.

At 6 a.m. on September 8, the German Twitter user @pauli_zoo was awoken by six police officers demanding access to his home. They were there to gather evidence for a criminal investigation. What potential crime prompted this? Calling the interior and sports minister for the city of Hamburg “a dick” on Twitter.

This is hardly the first time that Germany’s strict laws against speech crimes, including bans on defamation and incitement to hatred, hit the headlines. In June 2020, the German police union filed a criminal complaint against the newspaper Tageszeitung, claiming that it had incited hatred by publishing a column comparing the police to “trash” that should be “thrown in the landfill.” In 2017, Germany adopted the German Network Enforcement Act, a law obliging online platforms to remove “manifestly illegal” content within 24 hours or risk hefty fines.

Nor is Germany the only European democracy to crack down on offensive speech. In September, for example, a French court fined an activist €10,000 for depicting President Emmanuel Macron as Hitler on billboards protesting France’s COVID-19 policies. And last November, Europol, the European Union’s law enforcement agency, coordinated a clampdown on online hate speech in Germany, Italy, France, Greece, Norway, Britain, and the Czech Republic. In Germany alone, police searched more than 80 dwellings, seizing smartphones and laptops, while 96 suspects were questioned about hateful posts that included “insulting a female politician.”

To many Americans, the European approach to policing speech is anathema to the civil libertarian impulses undergirding the First Amendment. To others, importing European-style restrictions might sometimes seem enticing as a way to fight extremism and disinformation at a time when American democracy seems to be in crisis. Ultimately, Americans should recognize that robust free speech is a value worth defending, even if it comes with significant costs and tradeoffs. 

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The difference between the European and the American understanding of free speech is often explained with reference to Europe’s history with genocidal fascism. The ethos of “never again” certainly helps explain the European commitment to “militant democracy” and its exemption of hate speech from the legal protection of free speech. But the current differences between American and European regulation of speech predate 20th-century totalitarianism and are rooted in two competing conceptions of free speech: an egalitarian one and an elitist one.

The egalitarian conception views free speech as the very foundation of democracy as well as the “bulwark of liberty.” Under this view, governments cannot legitimately limit the opinions of the very people they represent, and even well-intentioned attempts to do so are likely to be abused to serve the interests of those in power. Accordingly, egalitarians tend to view speech restrictions as a serious violation of first principles.

The elitist conception views free speech as existing in tension with democracy since this freedom, however important, can be abused to undermine the values and institutions of the democratic order. Elitist free speech has traditionally been particularly concerned about the unmediated spread of dangerous ideas among the uneducated masses, who—it is thought—are easy to manipulate. Elitist free speech, therefore, prefers a public sphere in which opinion is limited by laws and shaped through “responsible” gatekeepers to ensure a balance between freedom and authority. 

Germany is a prime example of a country enforcing the elitist conception of free speech. After uniting Germany in 1871, the “Iron Chancellor” Otto von Bismarck ensured the passage of the 1874 Imperial Press Law, which formally abolished preventive censorship. Yet ruling elites feared that an excessively liberal public sphere would undermine the German Empire’s semi-democratic, semi-authoritarian socio-political order. Accordingly, under Bismarck speech was heavily regulated. It was a crime, one historian notes, to spread false news aimed at inciting “contempt for state institutions or the law.” Bismarck also adopted an Anti-Socialist Law banning any publications featuring “efforts to overthrow the existing social order” by endangering “the harmony of the different social classes.” Numerous journalists were dragged to court for libeling Bismarck himself.

Bismarck’s Imperial Press Law remained in force during Germany’s short-lived Weimar Republic, but there were significant carve-outs. In order to defend the republic against anti-democratic movements, ever more drastic laws and emergency measures were adopted due to the ruling elite’s impression that press freedom had degenerated into “the most poisonous weapon against democracy.” The government banned hundreds of newspapers for expressing contempt for the existing state structure, the national flag, and members of the government. The government could even order the media to print official corrections if it deemed coverage of its policies misleading. Religious offense and incitement to class struggle were criminalized and the government also ensured strict control over the radio resulting in what one historian called an “aesthetic educational dictatorship.”

Modern Germany is a free and open democracy, yet there is considerable continuity between current restrictions on free speech and those of past eras. While the German Network Enforcement Act is an instrument of the digital era, it revived speech statutes dating back to the 19th century and was justified by pointing to Germany’s Nazi past and the danger of unfettered free speech.

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By contrast, the First Amendment to the U.S. Constitution was infused with a significant strain of the egalitarian free speech doctrine. In 1787, Thomas Jefferson noted that “the basis of our governments being the opinion of the people, the very first object should be to keep that right.” Accordingly, if given the choice between “a government without newspapers, or newspapers without a government” Jefferson preferred the latter.

The First Amendment’s architect James Madison explained that the constitutional protection of press freedom was an expression of the “perfect equality between all men” and noted the differences between America and Britain. In Britain, Parliament was sovereign, but in America, the people—not Congress—were ultimately sovereign. This explained why in America, Madison argued, the First Amendment barred Congress from banning even false statements intended to excite the “hatred of the people” against the government, which were routinely punished as seditious in Britain. Such powers would violate “that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”  

Alas, for most of American history egalitarian free speech remained an unfulfilled ideal, and the First Amendment an ineffectual “parchment barrier,” as Madison called it. As early as 1798, Congress adopted the Sedition Act to crack down on critics of President John Adams and his Federalist administration. In the 19th century, Southern states criminalized abolitionist speech, while the Comstock Act launched a moral crusade against “obscenity.” In the early 20th century, the outbreak of World War I and the Russian Revolution caused a moral panic resulting in lengthy prison sentences for advocacy of socialist policies and pacifism. Meanwhile, Southern states continued to entrench white supremacy with laws banning the criticism of Jim Crow and the promotion of racial equality. 

Yet to a considerable degree it was advocacy by and on behalf of oppressed minorities—political, racial, and religious—that helped fulfill the promise of egalitarian free speech. Groups like the ACLU and the NAACP held that the values of freedom and equality are mutually reinforcing rather than mutually exclusive. This ideal had already been articulated by the great orator and abolitionist Fredrick Douglass, who insisted that “the right of speech is a very precious one, especially to the oppressed.”

The civil rights movement put Douglass’ theory into practice. As the late Congressman John Lewis remarked, “without freedom of speech and the right to dissent, the Civil Rights movement would have been a bird without wings.” A string of landmark Supreme Court decisions in the 1950s and 1960s ensured this right to protest peacefully in favor of unpopular ideas and to sharply criticize public officials. And in 1969, the Supreme Court went even further on free speech maximalism, holding that governments could not penalize speech that advocated for criminal activity unless it is “likely to incite … imminent lawless action.” 

These free speech decisions still resonate today. They are part of the reason why President Donald Trump was powerless to follow through on his numerous threats to punish journalists and media who were critical of him, and why unsympathetic state officials could not use vague laws against hate speech, extremism, and sedition to ban Black Lives Matter protests.

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In our polarized and fragmented digital age, the costs and harms of free speech have become much more visible. Elitist free speech thus seems appealing to many Americans who are having second thoughts about the wisdom of the First Amendment since—as the claim goes—“unfettered free speech is a threat to democracy.” This is hardly a new concern. Madison warned that “some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true, than in that of the press.” Yet he was convinced it was “better to leave a few of its noxious branches, to their luxuriant growth, than by pruning them away, to injure the vigor of those yielding the proper fruits.”

Today, online free speech connecting millions of people around the world nourishes entire networks of noxious branches and their digital offshoots. But this does not mean that the principle of egalitarian free speech has been proven wrong. One needs only to consider how enthusiastically Trump would have welcomed the opportunity to punish critics who likened him to unflattering body parts or Hitler.

However, unlike other illiberal populist politicians like Narendra Modi in India, Vladimir Putin in Russia, and Viktor Orban in Hungary, Trump had his hands tied by a constitutional commitment to egalitarian free speech. Untie those hands and Americans would quickly realize that censorship and repression are often a cure worse than the disease, and that public manifestations of hyperbole, disinformation, and bigotry are a price worth paying for the benefits of free and equal speech. 

Jacob Mchangama is the founder of Justitia, a Copenhagen-based think tank promoting the rule of law and fundamental human rights. He is also the author of the forthcoming book Free Speech: A History From Socrates to Social Media.