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Writing in the New York Times, Facebook whistleblower Frances Haugen writes that new European Internet regulations will “make social media far better without impinging on free speech.” That isn’t true, and the ways in which it isn’t true illustrate rather well just how difficult it would be to regulate social-media platforms without undermining free speech.
The European Union’s new Digital Services Act may turn out to be a good piece of legislation (I have not come to any conclusion on that), but it is one that burdens free speech, and it has been put forward in a European policy environment that already burdens free speech very heavily — far beyond what would be constitutionally or culturally acceptable in the United States.
Contrary to the sometimes-ridiculous rhetoric one hears from certain American critics, the European Union is a collection of liberal-democratic states that are mostly (though by no means in all cases) reasonably well-governed. The European Union is not some hybrid joining the worst of Orwell to the worst of Kafka, and there is much about European governance that is admirable and worth learning from. But European free-speech rules are not American free-speech rules. In this, the United States is an outlier compared with almost every other liberal democracy — and here the minority of one is in the right. We should hope for Europe to move in the American direction on freedom of speech rather than allowing the United States to drift in the European direction.
In many EU countries — civilized countries such as Germany and Austria — you can be put into prison for selling a banned political book. Your party can be outlawed and its candidates prohibited from seeking election based on nothing more than their political views. This is in accordance with what the Germans call streitbare Demokratie, the constitutional principal under which European governments feel entitled to violate certain fundamental liberal-democratic rights — the freedoms of association, speech, and the press, the right to stand for election or form a political party — on the grounds that doing so is in some cases necessary to protect liberalism and democracy themselves. Banned parties include both far-right and far-left parties, ethno-nationalist parties, communist parties, parties associated with separatist movements, etc. In Spain, the Basque-nationalist Askatasuna party is banned; the Czech Republic bans the Workers’ Party; Germany banned the Communist Party of Germany in the 1950s; Austria bans the National Democratic Party; the Netherlands bans the nativist organ known as Centre Party 1986. (The parties that are banned in Europe are, as you might expect, awful: communists and neo-Nazis and such.)
That is not how we do things in the United States. Back when the ACLU actually believed in its mission, it represented the members of George Lincoln Rockwell’s National Socialist Party — old-fashioned Nazis, swastika armbands and all — when they were prohibited from putting on a march in Skokie, Ill., a town that was about half Jewish and home to hundreds of Holocaust survivors. The Nazi march did not reflect well on the health of the American republic, but the fact that the Nazis’ free-speech rights were defended by a Jewish ACLU lawyer and that the ACLU resisted the intense pressure campaign against it — protests from donors and members, resignations from its board, members of the Jewish Defense League wielding baseball bats — was a testament to our national commitment to the kind of genuine freedom of speech that extends even to those people whose speech we find loathsome, a civic virtue that is increasingly absent among Americans, and particularly among the young.
(We have not always been the sort of country we are today: Barry Goldwater helped set up the NAACP in Arizona and personally financed desegregation litigation; William F. Buckley Jr. was on the board of Amnesty International back when it was serious about freeing political prisoners.)
So, the new EU Internet regulations are being set up in a political, legal, and cultural environment that has a fundamentally different attitude toward free speech than our American one. I prefer ours, but that isn’t immediately material to our discussion. As EU Commissioner Margrethe Vestager puts it, the underlying principle of the DSA is “that what is illegal offline should also be seen and dealt with as illegal online.” And since what is illegal offline in Europe includes many kinds of political speech and political activism, it simply is not the case that the DSA will not burden free speech.
The DSA will in fact empower the European Commission to do some extraordinary things, including taking control of certain aspects of large Internet companies’ business operations and content-management practices on an emergency basis. This applies not only to platforms such as Facebook and Twitter but also to search engines and other technology companies.
Large firms often have to comply with many competing sets of regulations in different countries — or even in different U.S. states. Economic efficiency often pushes firms to simply choose the most stringent regulation as their default, which permits consistency across the business rather than multiplying compliance costs. In the United States, this has occasioned fights over several different issues, ranging from California’s status as de facto national standard-setter for automotive-emissions regulations to the outsize role that the most populous states play in the textbook business, with states such as Texas using their substantial market power to become effectively national superintendents. The economics of corporate standardization and homogenization will push firms such as Facebook toward treating relatively illiberal European speech regulations as the default standard, with effects that will be felt in the United States — and the U.S. government already is moving in a more European direction, with the Biden administration’s daft plan to set up a disinformation-police force.
In Europe as in the United States, efforts to suppress unpopular political speech get dressed up in nationalist drag, with foreign agents providing a pretext for broad and deep regulation. It is an indication of European political dysfunction that even with Russian tanks and Russian missiles pounding European cities into rubble, the ladies and gentlemen in Brussels still take Russian trolls on Facebook more seriously than they take Russian armies in the field.
Commissioner Vestager says that the new rules are a sign that “democracy is back.” That’s all well and fine for the European Union, but in the United States, the entire point of the First Amendment is to shield freedom of speech from democracy — you do not get a vote on what your neighbors can and cannot say. It is understandable that governments want more control over online platforms that they feel overwhelmed by, and that in many cases are used to coordinate dangerous, illegal, and ghastly activities. But we should not ignore how invasive these measures will have to be if they are to be effective. “Transparency” is a good-government buzzword, but in some cases that is going to mean forcing companies to disclose confidential business information or to comply with illiberal policies up to and including both preemptive censorship and the criminalization of books, videos, and political parties — and cooperation with criminal prosecutions in these matters.
None of that fits very easily with American law or American practice, because the United States is in many important ways different from Europe. The Swiss have an excellent health-care system, and the German model of labor regulation is very effective, but I wouldn’t expect either of them to work here.
I do not think European speech regulations would work here, either — and I wouldn’t want them to.
Opinion from National Review.