American officials are waging a multifront attack on Europe’s approach to free speech. This month, a congressional delegation traveled to Dublin, Brussels, and London to probe and decry European regulations on digital speech. A State Department human-rights assessment issued last week pointed to objectionable “restrictions on freedom of expression” in France, Germany, and the United Kingdom. All of this follows Vice President J. D. Vance’s speech in February at the Munich Security Conference, where he accused European leaders of retreating from the continent’s “most fundamental values,” including free expression.
These assessments might seem untrustworthy, given the flagrant transgressions against free-speech principles from the Trump administration and its allies. But the fact is that European leaders are corroding the right to free expression, and show every sign of sliding further down a slippery slope into illiberalism.
Europe and the U.S. have always had different free-speech cultures. In the postwar era, both confronted the question of how tolerant societies should treat intolerant factions. Much of Europe concluded that, although free speech is important, views that threaten democracy itself are different and can be criminalized; see laws in various European states against Nazi propaganda. In contrast, the American system protected expression as vile as neo-Nazis marching through a town of Holocaust survivors because, by First Amendment logic, fascist speech poses less of a danger than enabling the state itself to engage in viewpoint discrimination. Despite these differences, both Europe and America mostly expanded speech protections in the 20th century and pulled back from censorship, seeming to converge on liberal values by the time the Iron Curtain fell and the internet spread.
Now Europe and the United States are diverging. Never mind enduring disagreements about how to treat Nazis and other would-be totalitarians. Europe today, in both its individual countries and its shared continental governance, is criminalizing more and more speech that doesn’t come close to American thresholds for incitement or harassment.
The shift has been gradual, emerging in landmark cases at the European Court of Human Rights, as well as in legislation at the national level. But the new reality is stark. Last year, Amnesty International (hardly a Trump-administration ally) published a report about what the organization’s secretary-general, Agnès Callamard, called a “Europe-wide onslaught against the right to protest”; the report documented examples of restrictive laws, use of excessive police force, and arbitrary arrest. It’s not just protests. European judges have signed off on the criminalization of the kinds of hate speech that, while easy to revile, pose nothing like Hitlerite peril. When a middle-aged mother lashes out at asylum seekers in a social-media post (later deleted), or a pro-Palestinian marcher chants a slogan that some but not all see as genocidal, or a flyer calls gays “deviants,” a tolerant society can exercise forbearance and respond with counterspeech. European states are often deploying handcuffs instead. And European leaders are pushing to expand the speech that can get a person thrown in prison.
Unfortunately, the Trump administration is so hypocritical on free expression, so unpopular in Europe, and so undiplomatic that it and its supporters are poorly positioned to persuade Europeans to reverse course. But at a time when freedom of expression is under attack across the globe, fighting for the expressive rights of Europeans is still worthwhile.
The American system, of course, isn’t absolutist about freedom of expression or permissive of all hate speech. Speech can be punished if it is a “true threat” that intentionally or recklessly makes its target fear violence, or if it constitutes harassment, libel, or incitement. But the U.S. has a very clear, very high threshold for incitement: Per the 1969 Supreme Court case Brandenburg v. Ohio, the speech must be directed toward “producing imminent lawless action” and “likely to incite or produce such action.”
In Europe, the picture is more complicated. The member states of the Council of Europe all have their own laws and are bound by the 1953 European Convention on Human Rights, which states that “everyone has the right to freedom of expression,” including freedom “to receive and impart information and ideas without interference.” But the same treaty notes that member states can restrict that right to advance national security, territorial integrity, or public safety; to prevent disorder or crime; to protect health or morals; and more.
Since shortly after its inception in 1959, the European Court of Human Rights, also known as the Strasbourg Court, has heard cases of alleged violations of the 1953 convention. The court’s strongest precedent affirming liberal free-speech values was articulated in a 1976 case called Handyside v. United Kingdom. In it, the court actually ruled in favor of the British government’s censorship of a book, for schoolchildren, whose content was deemed obscene. Yet its judgment stated that, in general, freedom of expression is “applicable not only to ‘information’ or ‘ideas’ that are favourably” or indifferently received, “but also to those that offend, shock or disturb the State or any sector of the population.” That ethos would be a powerful bulwark for expressive rights, if enforced. Yet in a series of rulings that began in the aughts, the court betrayed that ethos until it was all but abandoned.
One influential case, in 2009, concerned Daniel Féret, a Belgian politician who founded a far-right political party. He published campaign leaflets that included statements such as “stop the Islamization of Belgium” and “save our people from the risk posed by Islam, the conqueror.” A Belgian court convicted Féret of inciting discrimination, hatred, or violence, and punished him with a suspended prison sentence, 250 hours of community service, and 10 years of ineligibility for office. His punishment “had the legitimate aims of preventing disorder,” the court ruled, stating that “incitation to hatred” need not involve calls “for specific acts of violence.” Rather, “insults, ridicule or defamation aimed at specific population groups or incitation to discrimination, as in this case, sufficed.” Punishing insults that could lead to discrimination is a much lower standard than punishing calls for imminent violence that are also likely to lead to it.
In a 2012 case, Vejdeland and Others v. Sweden, four Swedes challenged their conviction for distributing to high schoolers leaflets that called homosexuality a “deviant sexual proclivity” and argued that promiscuous gays were responsible for spreading HIV. The court ruled that discrimination based on sexual orientation is as serious as racial discrimination, and that although the four Swedes might have been trying to initiate debate on “a question of public interest,” they had a duty to avoid “as far as possible” statements that are “unwarrantably offensive,” such as disparaging homosexuals as a group. How far such a duty to avoid offense might extend was unclear. In 2015, the court concluded that European states could be justified in punishing speech that is contrary to the “underlying values” or “spirit” of the European Convention on Human Rights, “namely justice and peace,” but didn’t clearly define those values or set forth a test for what violates them.
With online speech offering national authorities more occasions to launch prosecutions, the court set another speech-chilling precedent in 2015: An online news portal in Estonia could be punished for failing to remove hateful comments posted beneath a news article that itself was unobjectionable, the court found. In a similar case, in 2023, the court ruled against a far-right politician from France, Julien Sanchez, who had been punished for failing to delete hateful comments left beneath a Facebook post he wrote, even though he apparently hadn’t seen the comments. That ruling included the sweeping statement that because “tolerance and respect for the equal dignity of all” are foundational in a pluralistic democracy, “it may be considered necessary in certain democratic societies to penalise or even prevent all forms of expression that propagate, encourage, promote or justify hatred based on intolerance.” Not only must wrongthink be banned, the court suggested; justifying the wrongthink of others, or failing to adequately monitor and censor it, can be penalized, too.
All of those precedents come from the judicial body charged with protecting free-speech rights. Natalie Alkiviadou, the author of Hate Speech and the European Court of Human Rights, observed recently that although the court has long invoked the necessity of protecting democracy in restricting speech, its reasoning “has drifted far from those original aims.” Now that the court has justified criminalizing so many other forms of speech, no European citizen can trust that the court retains its bygone commitment to protecting ideas that “offend, shock or disturb the State or any sector of the population.”
By repeatedly prioritizing other goods above expressive rights, the European court helped create the conditions for the free-speech crackdowns now seen in numerous countries.
Germany has a unique history that informs its speech restrictions, which are motivated in part by a desire to prevent anything like the Holocaust from happening again. But Iris Hefets, an Israeli-born activist, believed that she was trying to stop a human-rights atrocity when she was arrested at a protest in Berlin for holding a sign that said As a Jew and Israeli, stop the genocide in Gaza. Although she was not criminally charged in that incident, she has been arrested on two other occasions for nonviolent pro-Palestinian protests. A German court convicted another activist for leading a “From the river to the sea, Palestine will be free” chant in Berlin. Jacob Mchangama, an academic who researches freedom of expression in Europe, reported earlier this year that German police investigations of online speech “happen to literally thousands of people,” including climate activists, pro-Palestinian activists, and ordinary people. “Even posting a book cover on X that features a barely visible swastika on a facemask—intended to draw sarcastic parallels between COVID policies and Nazi-era policies—can lead to a criminal conviction for displaying prohibited symbols,” he wrote.
Denmark has criminalized the inappropriate treatment of holy texts. In Switzerland, a man was fined and sent to prison for 40 days, a sentence upheld last year on appeal, for calling a journalist a “fat activist lesbian” and saying that queer means “degenerate.” After police in Austria raided the home of a Muslim academic at gunpoint, a regional court cited his work on Islamophobia as justification. A court sentenced a Czech teacher to a prison term (which was suspended), probation, and the loss of her ability to teach for three years for telling her class that Russia’s invasion of Ukraine was justified.
In Britain, Lucy Connolly, a middle-aged British mother, is serving a 31-month prison sentence for “distributing material with the intention of stirring up racial hatred.” After hearing inaccurate rumors that an asylum seeker had committed a crime, she posted on social media the vile message, “Mass deportation now, set fire to all the fucking hotels full of the bastards for all I care, while you’re at it take the treacherous government and politicians with them.” She soon deleted the message. The length of Connolly’s sentence has sparked widespread backlash in the country; critics point to criminals who have received lesser punishments for perpetrating actual violence. Just this month, in London, NPR reported, 532 people were arrested when supporters of a pro-Palestinian group recently banned as a terrorist organization gathered to protest.
As important are Britons who have broken no laws but have been harassed by police. In 2023, for example, Julian Foulkes, a retired police officer, implied that a pro-Palestinian social-media post was anti-Semitic, writing that the person who posted it was “one step away from storming Heathrow looking for Jewish arrivals.” The police, who perhaps misunderstood the post, handcuffed him and seized his electronic devices. Later, they “apologised to Mr Foulkes, removed a caution from his record and would hold a review,” the BBC reported. When citizens know that speech cops might show up at their door with handcuffs for an unremarkable post, even speech that censorious laws permit gets chilled.
European leaders are pushing for even more sweeping restrictions. In part, they seek to expand the categories of persons that, according to the Council of Europe, are protected from incitement to hatred or discrimination to include gender, disability, sexual orientation, language, and age, in addition to already protected categories (race, color, religion, and descent or national or ethnic origin). Many are pushing to expand what counts as hate speech, too. In a 2022 strategy paper on how to better combat hate speech, the Council of Europe defined it as “all types of expression that incite, promote, spread or justify violence, hatred or discrimination against a person or group of persons”––note that justifying hatred is a lower standard than advocating it. The European Commission has been pushing a proposal to require that all European Union states make hate speech a crime. And in 2024, the European Parliament urged the European Commission to adopt an open-ended approach to the sorts of discrimination that are banned, rather than a closed list, so that authorities “can adapt to changing social dynamics.”
Criminalizing more and more expansive conceptions of hate speech and applying them to more and more classes of Europeans doesn’t just infringe on individual rights. It risks a number of social ills, including beyond Europe.
Eugene Volokh, a First Amendment scholar at Stanford’s Hoover Institution, has argued that humans tend to have “censorship envy”: Once my neighbor gets to ban speech that offends him, I feel entitled to ban speech that I revile. This begets efforts to criminalize more speech over time, and can radicalize those who feel they must stand by as others censor. Former ACLU President Nadine Strossen has pointed out that when censorship succeeds in causing hateful people to express their ideas in private but never in public, others lose “the opportunity to dissuade them and to monitor their conduct.” And Greg Lukianoff, the head of the Foundation for Individual Rights and Expression, has argued that censorship is ineffective. “Since the widespread passage of hate speech codes in Europe, religious and ethnic intolerance there has gone up,” he wrote in 2021.
Europeans might retort that the American system, too, has failed to stop threats to freedom of expression. The Trump administration has sued news outlets, used anti-discrimination law to crack down on student protesters, and more, in some instances targeting European citizens. After Rümeysa Öztürk, a Turkish national studying at Tufts University, wrote an op-ed in the student newspaper that criticized campus administrators for their response to the war in Gaza, the administration suspended her visa and put her in immigration detention.
But a First Amendment lawsuit helped free Öztürk. And First Amendment protections constrain Donald Trump from detaining American citizens in the same fashion, while some citizens of Europe find themselves jailed in their own countries for political speech. Under the approach that many European leaders favor, Trump could indict half of Bluesky. And if internet companies all begin censoring speech globally by suppressing everything that could conceivably be illegal in Europe, Americans, including Trump critics, will be stifled.
For many with liberal values, or who are averse to criminalizing viewpoints, the kinds of prohibitions that the United States puts on speech go far enough—and Europe’s promiscuous prohibitions go too far. Should the right gain more power on the continent (as it has done in Hungary, with dire consequences for free speech), more centrist European leaders could soon realize the risks of the infrastructure they are building to surveil and punish hate speech. Any authoritarian could exploit that infrastructure to disastrous effects. Already, European leaders do more illiberal chilling of speech than Trump, who is doing enough of it himself to prevent America from leading by example.
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