Debate on Freedom of Speech:
Europe Really Is Jailing People for Online Speech

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.

Convicted for a satirical meme

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. This image, doctored to substitute the original slogan “we remember” with the apocryphal statement “I hate freedom of speech,” and shared by a journalist for a far-right publi­cation, resulted in a 7‑month suspended prison sentence for him. 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.

Germany’s restric­tions shock­ingly strict for US citizens

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.

Defensive Democracy?

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.

Liberal Tradi­tions in Great Britain

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.

The British Commu­ni­ca­tions Act

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.”

Around 33 arrests per day for crimes of expression

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.¹

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.

False claims, lies, hate speech

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.

A moral as well as a practical mistake

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.

The role of the censor

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.

Freedom of expression in times of disin­for­mation and threats to democracy

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.

Freedom of speech and holding power

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.

Restricting freedom of speech to protect democracy?

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.

It has become fashionable to invoke Karl Popper’s “paradox of tolerance” to justify restric­tions on free speech. That’s just plain wrong. 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.

Censorship under­mines trust in democ­ratic institutions

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.

Hypocritical critics but real problems

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.

Restoring freedom of expression and fostering lively debate

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.

The text was first published on the author’s website in April.