Europe Really Is Jailing People for Online Speech
From Germany to Britain, citizens are now routinely targeted for what they say.
Imagine this scenario.
The interior minister of a country that considers itself a democracy reports scores of citizens to the police for making critical statements about her while she is in office. Many of them are given hefty monetary fines or even prison sentences.
In protest, a journalist publishes a satirical meme. It features a real photograph of the interior minister holding a sign that is digitally altered so that, apocryphally, it reads: “I hate freedom of speech.”
As if to prove the point, the interior minister reports the journalist to the police. He is duly prosecuted and, after a brief trial, given a seven-month suspended prison sentence.
Would you say that this nation has a problem with free speech?
If you do, then you should be very concerned about what has happened in Europe over the last few years. For, as you may have suspected, this scenario is not fictional; rather, it depicts the true facts of a recent German court case—one that is far less of an outlier than most otherwise well-informed observers recognize.
The politician in question is Nancy Faeser.
Over her three-plus years in office, the Social Democrat has reported multiple citizens to the police for criticisms they made of her on social media. She is hardly alone in having done so; other members of Olaf Scholz’s outgoing government have been even more aggressive in targeting its critics.
Robert Habeck, a leader of the Green Party, has initiated over 800 criminal complaints since taking up his position as vice chancellor in 2021. One of them was directed against a pensioner who had tweeted a parody of a ubiquitous ad for a German shampoo brand by the name of “Schwarzkopf Professional” which featured Habeck’s face—and luscious hair—under the slogan “Schwachkopf Professional” (roughly: professional idiot). The police duly raided the pensioner’s home at 6am, confiscated his iPad, and started criminal proceedings against him.
It may seem as though this is nothing new. By American standards, Germany’s limits on free speech have long been shockingly restrictive. As a family friend experienced some two decades ago, even a comparatively innocuous interpersonal altercation can lead to a lengthy court trial. One day, this piano teacher at the local music university, a mild-mannered lady who was then already well into her sixties, was cycling to work. When a car cut her off in a way she considered dangerous, she flipped the driver off. A few hours later, the driver was standing at the gate of her university demanding that she identify herself. In the end, a court found her guilty of the crime of “insult,” and required her to pay the equivalent of thousands of dollars in fines.
Things have gotten worse since. Over the past decade, a raft of new laws has further extended restrictions on free speech. First, a law named—as though to confirm all stereotypes about the German language being overly cumbersome and bureaucratic—the Netzwerkdurchsetzungsgesetz (Network Enforcement Act) required major social media platforms to act swiftly to delete presumptively illegal content ranging from hate speech to personal insults. The law imposed such steep fines on social media networks like Twitter and Facebook that they needed to err on the side of censoring any potentially controversial content in order to keep operating in the country. When Vladimir Putin sought to strengthen his ability to marginalize the political opposition in Russia, he cleverly translated key passages of the German law into Russian, deflecting criticisms of his crackdown on free speech by pointing out that he was merely emulating Western democracies.
Then, Germany’s outgoing center-left government created a new provision which gives special protection to politicians. According to Paragraph 188 of the German Criminal Code, anybody who makes a critical remark about a political figure that they cannot substantiate is subject to enhanced penalties, making them subject to a prison term of up to three years. It is this law that major German politicians now routinely invoke to ask the police to prosecute citizens, from good-faith critics to run-of-the-mill social media trolls—like the man who posted that innocuous parody of a shampoo ad featuring Habeck.
Germany’s past has given it an especially ambivalent relationship towards free speech. In the wake of the horrors of World War II, the country reinvented itself as a “militant democracy,” one that puts special emphasis on using the law to combat extremist forces. As a result, it was one of the first European democracies to explicitly outlaw a range of radical sentiments, from hate speech to denial of the Holocaust. But today, Germany is no longer an outlier within Europe; on the contrary, even countries that have long prided themselves on their liberal traditions have now followed the country’s lead, making it astonishingly easy for the police to arrest citizens who shock or offend.
At the end of January, six police officers walked up to the front door of Maxie Allen and Rosalind Levine, in Hertfordshire, in the United Kingdom. After briefly speaking to the middle-aged couple in front of their young daughter, they took them into police custody, where they would go on to be incarcerated for eight hours under suspicion of having sent “malicious communications.”
The reasons why Allen and Levine were arrested are astonishing. Unhappy about their daughter’s primary school, they had raised questions about the process of choosing a new headmaster in a parents’ WhatsApp group. When the school’s leadership got wind of the criticisms, it referred Allen and Levine to the local police—who promptly sent over half a dozen officers to arrest them.
In the absence of a codified constitution, Britain does not have an equivalent of America’s First Amendment. But protections for free speech have long played an important role in common law, and Britain has always prided itself on its reputation for free thinking. When I myself first visited London as a teenager, I made a pilgrimage to Speaker’s Corner in Hyde Park, and listened in fascination as a parade of cranks, preachers, and extremists made their case to bemused onlookers.
But the times in which Britons could confidently say whatever they wanted without fear of landing in jail are now long gone. It began, as in many European countries, with hate speech legislation. In 1986, the country introduced a prohibition on “publishing threatening or abusive material intending to stir up racial hatred,” which imposed very harsh prison sentences but at least contained a comparatively clear definition of what was being banned. This changed in 2003, with the adoption of the Communications Act. According to Section 127, anybody sending a message over a public communications network can now be imprisoned for up to six months if it is found to be “grossly offensive;” if it is “indecent, obscene, or menacing;” or if it is “false, and sent to cause annoyance or distress.”
As this broad language suggests, these crimes are extremely poorly defined. What counts as “indecent” or “grossly offensive” is very much in the eye of the beholder. To make things worse, British citizens can be prosecuted for such speech in magistrate’s courts, which typically deal with minor matters like public order offenses or drunk and disorderly conduct; in practice, the question of what is illegal is therefore settled by poorly trained police officers and lay judges without any formal legal education. It is now possible—and indeed quite common—for Britons to be jailed for up to six months for tweeting a stupid joke without ever coming into contact with a judge who has a law degree or being able to exercise the right to a trial by jury. (When defendants are threatened with even longer prison sentences under the 1986 law, they do at least retain some of those basic procedural rights.)
As a result of these broad prohibitions and the ease of enforcing them, Britain has quickly become one of the continent’s leaders in prosecuting—and even jailing—people for speech. As the Times of London recently reported, “officers from 37 police forces made 12,183 arrests [under section 127] in 2023.” This means that, on average, over 33 arrests are made every day for what people in the United Kingdom have said on the internet.
Many of these people have, like Allen and Levine, done nothing wrong. In one particularly egregious case, a 21-year-old woman was criminally prosecuted for referring to a soccer player by the n-word on social media—even though she herself is black. In another case, a Scottish grandmother fell afoul of draconian laws establishing effective no-speech zones around abortion clinics. 74-year old Rose Docherty silently held up a sign reading “coercion is a crime, here to talk, only if you want”; four police officers promptly arrested her. In yet another case, an autistic 16-year-old girl was manhandled and arrested by police in West Yorkshire on the suspicion of a homophobic hate crime for saying that an officer resembled her “lesbian nana.” (The girl’s beloved grandmother is lesbian.)
In other cases, people who have acted in ways that are indubitably morally noxious have faced penalties that are shockingly disproportionate to the offense. In the highly emotional hours after Axel Rudakubana killed three young girls at a Taylor Swift dance party in Southport in July 2024, for example, Lucy Connolly, the wife of a local councillor for the Conservative Party, posted a tweet that is clearly racist: “Mass deportation now, set fire to all the fucking hotels full of the bastards for all I care… If that makes me racist, so be it.”
Under America’s First Amendment standard, this tweet would likely count as protected speech. But under the more draconian and less clearly defined British standards, a tweet like this can quickly turn into a lengthy prison sentence. Connolly was sentenced to 31 months in prison.
European limits on free speech are likely to become even more far-reaching in the near future. In the agreement setting out the policies of the incoming government, the coalition which is set to govern Germany for the next four years writes that “the knowing dissemination of false claims is not covered by free speech,” an incredibly broad standard that could potentially criminalize anything from run-of-the-mill lies to controversial statements the government arbitrarily deems to be “misinformation.” In Poland, a law recently passed by the national parliament would significantly broaden the range of people protected against “hate speech” to include such categories as age or disability. Increasingly, the European Union itself is even mandating that member states censor their citizens.
Germany’s Netzwerkdurchsetzungsgesetz served as the model for a similar law at the European level; to operate anywhere in the European Union, social networks must now rapidly delete posts that could potentially violate one of the 27 sets of rules about hate speech enacted by members of the bloc. Meanwhile, the European Commission has recently proposed including “hate speech” in a small list of “EU crimes”; while the EU does not itself prosecute violations of such rules, it requires each of its member states to make provisions for doing so.
Europe’s embrace of stringent and ill-defined limits on free expression is both a moral and a practical mistake. Some disagreement about where to draw the line between speech that is merely morally noxious and speech that is criminal may—even in debates premised on the validity of the First Amendment—be inevitable. And while I personally believe in the universal value of America’s First Amendment, it is reasonable for other countries with different political traditions to adopt a somewhat more expansive notion of what constitutes incitement to violence or when false statements cross the line into outright slander. But in practice, European restrictions on free speech have long since gone far beyond the realm of reasonable disagreement: they are now so extensive that all of the classic arguments about the dangers of state censorship fully apply to them.
Philosophers have traditionally made the case for free speech by emphasizing the positive things that this practice facilitates.
As John Stuart Mill beautifully put it, restrictions on free speech always presume the infallibility of the censor; and yet, the fate of some of humanity’s most distinguished thinkers, from Socrates to Galileo Galilei, attests to the fact that what seems ineluctably true today may turn out to be evidently false tomorrow. There is, as Mill noted, even a danger in censoring speech that really does turn out to be wrong; if we are incapable of defending democratic institutions against their harshest critics, we will hold onto them as dead dogmas rather than living truths—and that will, the moment such prohibitions are lifted, make the work of their adversaries all the easier.
Both of these insights have proven to be highly pertinent to our own era. It’s tempting to believe that we are smarter and more tolerant than the censors who persecuted Socrates and Galileo. But over the course of my own lifetime, gays and lesbians were routinely fired from their jobs for publicly acknowledging their sexual orientation, and major social media platforms including Facebook and YouTube banned posts suggesting that COVID may have originated in a laboratory. Similarly, Mill’s point about “living truths” seemed a little abstract to me when I first read it as an undergraduate. But the ease with which people from across the political spectrum who have long paid lip service to liberal democracy have been willing to abandon its basic values in recent years shows just how prescient his worry about the weakness of “dead dogmas” has turned out to be.
Even so, I understand why the positive aspects of free speech can seem like a remote concern at a time when democracy is under serious threat in many countries. Doesn’t the threat of “misinformation” outweigh the benefits of free speech? And isn’t it more important to preserve democracy than to care about the niceties of free speech? That’s why (as I argued in my latest book, The Identity Trap) the strongest arguments for free speech don’t focus on the good things that happen when we uphold the practice; they focus on the terrible things that happen when we don’t.
Sadly, the ways in which restrictions on free speech in Europe have weakened, rather than strengthened, democracy perfectly illustrate this point. The supposed goal of hate speech laws is to protect the vulnerable from offense or victimization. But virtually by definition, those who get to make decisions about what kind of speech is permitted, and what kind of speech is verboten, enjoy a lot of power—whether they be judges and politicians or whether they be senior executives in tech companies. And so it is hardly surprising that many of the people who have been prosecuted for speaking their mind, from a young black student in Britain to an old pensioner in small-town Germany, seem relatively powerless.
Another negative effect of limits on free speech is that they greatly increase the stakes of holding power. A key promise of democracy is that you can make a case for your views even if you lose an election, incentivizing you to accept the rules of the game in the hope of winning the next time around. But if those who are in power can criminalize the speech of those who are out of power, the willingness to accept the rules of the game is likely to decrease significantly. This is why restrictions on speech that have the putative purpose of supporting political moderation often end up fanning the flames of extremism—and the seemingly ineluctable rise in restrictions on free speech has coincided with the seemingly ineluctable rise of the far right.
The argument for strong restrictions on free speech implicitly rests on the idea that these have historically proven necessary to preserve our democratic institutions, making them all the more justified at a time when authoritarianism is on the rise. But this argument is historical nonsense twice over.
This argument wrongly presumes that past failures of democracy can be chalked up to an excess of free speech when the opposite comes closer to being true. The Weimar Republic, which is often adduced as Exhibit A by people who believe that a “militant democracy” must censor extremists, for example, had far-reaching restrictions on free speech. Indeed, this gave judges significant leeway to favor their friends and prosecute their enemies, contributing to a deep distrust in the neutrality of democratic institutions which accelerated polarization and rewarded extremism.
This argument also wrongly presumes that restrictions on free speech are now serving to stabilize democracy when the evidence, once again, seems to point in the opposite direction. Over the past decades, European countries have become much more restrictive in what they allow their citizens to say, and in how easily they reserve the right to jail those who fail to listen. Over those same decades, hateful views have become much more prominent in public discourse, and extremists have become much more popular.
Correlation need not mean causation. But there is good reason to believe that the two phenomena are related. Censorship doesn’t change what people think. On the contrary, it serves to drive genuine concerns to the margins of public discourse, making it harder for moderate political forces to address them; to undermine trust in the fairness of democratic institutions; and to turn those who are censored into martyrs.
Few things I do nowadays so reliably earn me stern rebukes from my readers—and sometimes even emails so angry that they might be subject to prosecution for “malicious communications” in some European country or another—than my occasional insistence that Europe has a serious free speech problem on its hands. Instead of responding to each of these comments or emails individually, I decided to sit down and systematically set out my case. Sadly, the shocking examples I encountered in the process of researching that case have made me even more convinced of the severity of the problem. Without a serious public debate about the matter, European countries have slowly drifted into a state of affairs in which the state can, with astonishing ease, jail people for what they say.
Yes, some extremists invoke the cause of free speech for their own sinister agenda. And yes, J. D. Vance’s stark criticisms of European restrictions on free speech reeked of hypocrisy in light of the Trump administration’s own attempts to chill the speech of its critics. But the fact that some of the people who point to a problem aren’t trustworthy doesn’t miraculously mean that the problem isn’t real—and anybody who insists on blindly taking the opposite stance of people like Vance on any issue in the world effectively outsources to him the decision of what they themselves believe.
Europe’s far-reaching restrictions on free speech have already resulted in many serious miscarriages of justice. They now have a significant “chilling effect” on the ability to engage in robust political speech, which must include the freedom to express unpopular opinions and to satirize—whether in good taste or bad—the most powerful people in society. Far from helping European countries contain the extremists now knocking on the doors of power, that chilling of speech has likely turned them into martyrs and grown their public support.
Europe has a serious free speech problem. Instead of taking ever more measures to punish their citizens for what they say, it’s time for countries from Germany to Britain to abolish the deeply illiberal legislation they have, with little attention from the press or the public, introduced over the course of the last decades. To live up to the most basic values of the democracies that are now under threat, the continent needs to reverse course—and restore true freedom of speech.
A version of this piece was originally published at The Dispatch.
As Yascha said, Europe has always been more hesitant on free speech rights than the US. If Elon Musk had pulled his Inauguration Day stunt in Germany, he'd be in jail -- assuming he's not too rich to jail. That is not new, it's been the case since the founding of post-war Germany. Decades ago, a Frenchman was prosecuted for allegedly sticking his tongue out at a police officer at a red light -- and got off by claiming he was just mimicking the dog in the next car over. It's easier to be civilly sued for libel in the UK than in the US, an arrangement the vexatiously litigious Donald Trump has said he wants to import.
Free speech exists on a spectrum. At one extreme is "you can go to jail for saying this". But the spectrum ranges from there through civil liability, ostracism, opprobrium, all the way down to you don't have any friends because you're a disagreeable person. Go to a Catholic Bible study group, and say the Virgin Mary was not a virgin, but a common whore, and you'll likely be asked to leave -- and arrested for trespassing if you don't. There are things no reputable newspaper will choose to publish. No paper in the US will publish your Op Ed saying that the tragedy of the Holocaust is that Hitler didn't finish the job (I hope).
Ideas live on a dynamic spectrum of reputability. But the Internet has mostly nullified the notion of reputability: everyone is reputable now -- or, equivalently, nobody is. That means that the free speech spectrum has collapsed: unless you can go to jail for it, nothing stops you not just from saying it, but disseminating it widely. Europe seems to be reacting by taking a bunch of formerly disreputable speech, and illegalizing it (and in some cases, inevitably, sliding down the slippery slope to prosecuting speech that has merely annoyed some official). That's a mistake: Yascha is absolutely right about that. What's unclear to me is what you do instead: how do you restore what Jonathan Rauch called the Constitution of knowledge: the collective, ongoing process of validating ideas, promoting some while exiling others to the margins of civil society?
There needs to be *some* space for disreputable speech, because knowledge is dynamic: once disreputable ideas, such as that homosexuality is not a psychiatric disorder, or that stomach ulcers are caused by a bacterial infection, have managed to transition to accepted wisdom. But reputability needs to be earned. It's a mistake, a big one, to legally sanction disreputable speech; it's also a mistake to argue that all speech, no matter how disreputable, has the civil right to a large audience and respectful hearing. And the people making the latter argument have consistently shown themselves to be disingenuous: they want their own disreputable speech to have an unlimited platform, but not the other guy's. The same people who screamed "censorship" when Twitter declined to publish their stuff, in the olden days, are delighted that the Naval Academy has pulled I Know Why The Caged Bird Sings from its library, while keeping Mein Kampf.