Below is my column on the vote scheduled for this week by France to impose a new regulation on Internet speech — essentially forcing companies to scrub their sites of any hate speech as defined under sweeping French laws. What is astonishing is how many Americans are prepared to follow the European model in limiting free speech on the basis for loosely defined terms of threatening or intimidating or harassing anyone on the basis for race or religion or sexual orientation or other protected groups. The implications for free speech is sweeping and chilling. The West has fallen out of love with free speech. What is most concerning however is that countries like France and Germany are likely to strip away free speech protections for the rest of the World, even in countries like the United States where free speech is still given broad protection.
Here is the column:
Just over one year ago, French President Emmanuel Macron came to the United States to import two potentially invasive species to Washington. One was a tree and the other was a crackdown on free speech. Ironically, soon after the tree was planted, officials dug it up to send it to quarantine. However, the more dangerous species was his acorn of speech controls, a proposal that resulted in rapturous applause from our clueless politicians.
While our politicians in the United States may applaud Macron like village idiots, most Americans are hardcore believers in free speech. It is part of our DNA. Undeterred, however, Macron and others in Europe are moving to unilaterally impose speech controls on the internet with new legislation in France and Germany. If you believe this is a European issue, think again.
Macron and his government are attempting to unilaterally scrub out the internet of hateful thoughts. The French Parliament has moved toward a new law that would give internet companies like Facebook and Google just 24 hours to remove hateful speech from their sites or face fines of $1.4 million per violation. A final vote is expected next week. Germany passed a similar measure last year and imposed fines of $56 million.
The French and Germans have given up in trying to convince the United States to surrender its free speech protections. They realized that they do not have to because by imposing crippling penalties, major companies will be forced into censoring speech under poorly defined standards. The result could be the curtailment of the greatest invention fostering free speech in the history of the world. It is all happening without a whimper of opposition from Congress or from most civil liberties organizations.
The move by the Europeans hits in the blind spot of the United States Constitution. The First Amendment does an excellent job of preventing government action against free speech, and most of the laws curtailing free speech in Europe would be unconstitutional in the United States. However, although protected against Big Brother, we are left completely vulnerable to Little Brother, made up of the private companies that have wide discretion on curtailing and controlling speech around the world.
Europeans know these companies are quite unlikely to surgically remove content for individual countries. The effect will be similar to the “California Exception.” All states are subject to uniform vehicle emissions standards under the Clean Air Act, but California was given an exception to establish more stringent standards. Rather than create special cars for California, the more stringent standards tend to drive car designs. When it comes to speech controls, Europeans know they can limit speech not only in their countries but practically limit speech in the United States and elsewhere.
Indeed, Europeans are building on past success. Back in 2013, a group of Jewish students used French laws to sue Twitter to force it to hand over the identities of anonymous posters of comments deemed anti-Semitic. To its credit, Twitter fought to protect anonymity but the European courts ruled against the company and, ultimately, it caved. Anonymity is being rolled back as rapidly as free speech is being crushed in these countries.
Macron knows the European speech controls are likely to metastasize throughout the internet. They have already laid waste to free speech in Europe. These laws criminalize speech under vague standards referring to “inciting” or “intimidating” others based on race or religion. For example, fashion designer John Galliano has been found guilty in a French court on charges of making anti-Semitic comments against at least three people in a Paris bar. At his sentencing, Judge Anne Marie Sauteraud read out a list of the bad words used by Galliano to Geraldine Bloch and Philippe Virgitti. “He said ‘dirty whore’ at least a thousand times,” she explained out loud.
In another case, the father of French conservative presidential candidate Marine Le Pen was fined because he had called people from the Roma minority “smelly.” A French mother was prosecuted because her son went to school with a shirt reading “I am a bomb.” A German man was arrested for having a ringtone with the voice of Adolf Hitler. A German conservative politician was placed under criminal investigation for a tweet in which she accused police of appeasing “barbaric gang raping Muslim hordes of men.” Even German Justice Minister Heiko Maas was censored under his own laws for calling an author an “idiot” on Twitter.
The result of such poorly defined laws is predictable. A recent poll found only 18 percent of Germans feel they can speak freely in public. More than 31 percent did not even feel free to express themselves in private among their friends. Just 17 percent of Germans felt free to express themselves on the internet, and 35 percent said free speech is confined to small private circles. That is called a chilling effect, and it should be feared.
There are also renewed calls in the United Nations to make hate speech a type of international crime. Muslim nations want blasphemy included, and Israel wants anti-Semitism to be criminalized. Even in our own country, politicians like Howard Dean and various academics have declared that hate speech is not protected by the First Amendment. Representative Frederica Wilson has called for people to be “prosecuted” for making fun of members of Congress. A recent poll found half of college students in the United States do not believe that hate speech should be protected.
The sad irony of France leading efforts to curb free speech is powerful. Once the bastion of liberty, France has now become one of the greatest international threats to free speech. It even led a crackdown on the free press with criminal investigations. For years, we have simply watched from our side of the Atlantic and dismissed these trends as a European issue. With these new laws, however, it is a global issue. This invasive species is about to be unleashed on the worldwide web.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.