{"id":73133,"date":"2025-06-20T10:22:24","date_gmt":"2025-06-20T08:22:24","guid":{"rendered":"https:\/\/libmod.de\/?p=73133"},"modified":"2025-06-25T16:45:51","modified_gmt":"2025-06-25T14:45:51","slug":"debate-on-freedom-of-speech-europe-really-is-jailing-people-for-online-speech","status":"publish","type":"post","link":"https:\/\/libmod.de\/en\/debate-on-freedom-of-speech-europe-really-is-jailing-people-for-online-speech\/","title":{"rendered":"Debate on Freedom of Speech:
Europe Really Is Jailing People for Online Speech"},"content":{"rendered":"

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From Germany to the UK, citizens are now routinely targeted for their online state\u00adments, writes German-American political scientist Yascha Mounk in his analysis and concludes that freedom of expression in Europe is under threat.<\/h3>\n

[\/vc_column_text][vc_column_text css=\u201c\u201d]Imagine this scenario: The interior minister of a country that considers itself a democracy reports scores of citizens to the police for making critical state\u00adments about her while she is in office. Many of them are given hefty monetary fines or even prison sentences.<\/p>\n

Convicted for a satirical meme<\/h2>\n

In protest, a journalist publishes a satirical meme. It features a real photo\u00adgraph of the interior minister holding a sign that is digitally altered so that, apocryphally, it reads: \u201cI hate freedom of speech.\u201d As if to prove the point, the interior minister reports the journalist to the police. He is duly prose\u00adcuted and, after a brief trial, given a seven-month suspended prison sentence.<\/p>\n

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\u2014one that is far less of an outlier than most otherwise well-informed observers recognize.<\/p>\n

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 criti\u00adcisms they made of her on social media. She is hardly alone in having done so; other members of Olaf Scholz\u2019s outgoing government have been even more aggressive in targeting its critics. This image, doctored to substitute the original slogan \u201cwe remember\u201d with the apocryphal statement \u201cI hate freedom of speech,\u201d and shared by a journalist for a far-right publi\u00adcation, resulted in a 7\u2011month 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 \u201cSchwarzkopf Profes\u00adsional\u201d which featured Habeck\u2019s face\u2014and luscious hair\u2014under the slogan \u201cSchwachkopf Profes\u00adsional\u201d (roughly: profes\u00adsional idiot). The police duly raided the pensioner\u2019s home at 6am, confis\u00adcated his iPad, and started criminal proceedings against him.<\/p>\n

Germany\u2019s restric\u00adtions shock\u00adingly strict for US citizens<\/h2>\n

It may seem as though this is nothing new. By American standards, Germany\u2019s limits on free speech have long been shock\u00adingly restrictive. As a family friend experi\u00adenced some two decades ago, even a compar\u00ada\u00adtively innocuous inter\u00adper\u00adsonal alter\u00adcation 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 \u201cinsult,\u201d and required her to pay the equiv\u00adalent of thousands of dollars in fines.<\/p>\n

Things have gotten worse since. Over the past decade, a raft of new laws has further extended restric\u00adtions on free speech. First, a law named\u2014as though to confirm all stereo\u00adtypes about the German language being overly cumbersome and bureaucratic\u2014the Netzw\u00aderk\u00addurch\u00adset\u00adzungs\u00adgesetz <\/em>(Network Enforcement Act) required major social media platforms to act swiftly to delete presump\u00adtively 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 poten\u00adtially contro\u00adversial content in order to keep operating in the country. When Vladimir Putin sought to strengthen his ability to margin\u00adalize the political opposition in Russia, he cleverly trans\u00adlated key passages of the German law into Russian, deflecting criti\u00adcisms of his crackdown on free speech by pointing out that he was merely emulating Western democracies.<\/p>\n

Defensive Democracy?<\/h2>\n

Then, Germany\u2019s outgoing center-left government created a new provision which gives special protection to politi\u00adcians. According to Paragraph 188 of the German Criminal Code, anybody who makes a critical remark about a political figure that they cannot substan\u00adtiate is subject to enhanced penalties, making them subject to a prison term of up to three years. It is this law that major German politi\u00adcians now routinely invoke to ask the police to prosecute citizens, from good-faith critics to run-of-the-mill social media trolls\u2014like the man who posted that innocuous parody of a shampoo ad featuring Habeck.<\/p>\n

Germany\u2019s 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 <\/em>\u201cmilitant democracy,\u201d one that puts special emphasis on using the law to combat extremist forces. As a result, it was one of the first European democ\u00adracies to explicitly outlaw a range of radical senti\u00adments, 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 tradi\u00adtions have now followed the country\u2019s lead, making it aston\u00adish\u00adingly easy for the police to arrest citizens who shock or offend.<\/p>\n

Liberal Tradi\u00adtions in Great Britain<\/h2>\n

At the end of January, six police officers walked up to the front door of Maxie Allen and Rosalind Levine, in Hertford\u00adshire, 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 incar\u00adcerated for eight hours under suspicion of having sent \u201cmalicious commu\u00adni\u00adca\u00adtions.\u201d The reasons why Allen and Levine were arrested are aston\u00adishing. Unhappy about their daughter\u2019s primary school, they had raised questions<\/a> about the process of choosing a new headmaster in a parents\u2019 WhatsApp group. When the school\u2019s leadership got wind of the criti\u00adcisms, it referred Allen and Levine to the local police\u2014who promptly sent over half a dozen officers to arrest them.<\/p>\n

In the absence of a codified consti\u00adtution, Britain does not have an equiv\u00adalent of America\u2019s First Amendment. But protec\u00adtions 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\u2019s Corner in Hyde Park, and listened in fasci\u00adnation as a parade of cranks, preachers, and extremists made their case to bemused onlookers.<\/p>\n

The British Commu\u00adni\u00adca\u00adtions Act<\/h2>\n

But the times in which Britons could confi\u00addently say whatever they wanted without fear of landing in jail are now long gone. It began, as in many European countries, with hate speech legis\u00adlation. In 1986, the country intro\u00adduced a prohi\u00adbition on \u201cpublishing threat\u00adening or abusive material intending to stir up racial hatred,\u201d which imposed very harsh prison sentences but at least contained a compar\u00ada\u00adtively clear defin\u00adition of what was being banned. This changed in 2003, with the adoption of the Commu\u00adni\u00adca\u00adtions Act. According to Section 127, anybody sending a message over a public commu\u00adni\u00adca\u00adtions network can now be imprisoned for up to six months if it is found to be \u201cgrossly offensive;\u201d if it is \u201cindecent, obscene, or menacing;\u201d or if it is \u201cfalse, and sent to cause annoyance or distress.\u201d<\/p>\n

Around 33 arrests per day for crimes of expression<\/h2>\n

As this broad language suggests, these crimes are extremely poorly defined. What counts as \u201cindecent\u201d or \u201cgrossly offensive\u201d is very much in the eye of the beholder. To make things worse, British citizens can be prose\u00adcuted for such speech in magistrate\u2019s courts, which typically deal with minor matters like public order offenses or drunk and disor\u00adderly 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\u2014and indeed quite common\u2014for 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 defen\u00addants are threatened with even longer prison sentences under the 1986 law, they do at least retain some of those basic proce\u00addural rights.)<\/p>\n

As a result of these broad prohi\u00adbi\u00adtions and the ease of enforcing them, Britain has quickly become one of the continent\u2019s leaders in prosecuting\u2014and even jailing\u2014people for speech. As the Times <\/em>of London recently reported, \u201cofficers from 37 police forces made 12,183 arrests [under section 127] in 2023.\u201d 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<\/sup><\/a><\/p>\n

Many of these people have, like Allen and Levine, done nothing wrong. In one partic\u00adu\u00adlarly egregious case, a 21-year-old woman was crimi\u00adnally prose\u00adcuted for referring to a soccer player by the n\u2011word on social media\u2014even though she herself is black. In another case, a Scottish grand\u00admother fell afoul of draconian laws estab\u00adlishing effective no-speech zones around abortion clinics. 74-year old Rose Docherty silently held up a sign reading \u201ccoercion is a crime, here to talk, only if you want\u201d; 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 \u201clesbian nana.\u201d (The girl\u2019s beloved grand\u00admother is lesbian.)<\/p>\n

In other cases, people who have acted in ways that are indubitably morally noxious have faced penalties that are shock\u00adingly dispro\u00adpor\u00adtionate 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 Conser\u00adv\u00adative Party, posted a tweet that is clearly racist: \u201cMass depor\u00adtation now, set fire to all the fucking hotels full of the bastards for all I care\u2026 If that makes me racist, so be it.\u201d<\/p>\n

Under America\u2019s 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.<\/p>\n

False claims, lies, hate speech<\/h2>\n

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 \u201cthe knowing dissem\u00adi\u00adnation of false claims is not covered by free speech,\u201d an incredibly broad standard that could poten\u00adtially crimi\u00adnalize anything from run-of-the-mill lies to contro\u00adversial state\u00adments the government arbitrarily deems to be \u201cmisin\u00adfor\u00admation.\u201d In Poland, a law recently passed by the national parliament would signif\u00adi\u00adcantly broaden the range of people protected against \u201chate speech\u201d to include such categories as age or disability. Increas\u00adingly, the European Union itself is even mandating that member states censor their citizens.<\/p>\n

Germany\u2019s Netzw\u00aderk\u00addurch\u00adset\u00adzungs\u00adgesetz<\/em> 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 poten\u00adtially 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 \u201chate speech\u201d in a small list of \u201cEU crimes\u201d; while the EU does not itself prosecute viola\u00adtions of such rules, it requires each of its member states to make provi\u00adsions for doing so.<\/p>\n

A moral as well as a practical mistake<\/h2>\n

Europe\u2019s 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\u2014even in debates premised on the validity of the First Amendment\u2014be inevitable. And while I personally believe in the universal value of America\u2019s First Amendment, it is reasonable for other countries with different political tradi\u00adtions to adopt a somewhat more expansive notion of what consti\u00adtutes incitement to violence or when false state\u00adments cross the line into outright slander. But in practice, European restric\u00adtions 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.<\/p>\n

The role of the censor<\/h2>\n

Philoso\u00adphers have tradi\u00adtionally made the case for free speech by empha\u00adsizing the positive things that this practice facil\u00adi\u00adtates. As John Stuart Mill beauti\u00adfully put it, restric\u00adtions on free speech always presume the infal\u00adli\u00adbility of the censor; and yet, the fate of some of humanity\u2019s most distin\u00adguished 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 democ\u00adratic insti\u00adtu\u00adtions against their harshest critics, we will hold onto them as dead dogmas rather than living truths\u2014and that will, the moment such prohi\u00adbi\u00adtions are lifted, make the work of their adver\u00adsaries all the easier.<\/p>\n

Both of these insights have proven to be highly pertinent to our own era. It\u2019s tempting to believe that we are smarter and more tolerant than the censors who perse\u00adcuted Socrates and Galileo. But over the course of my own lifetime, gays and lesbians were routinely fired from their jobs for publicly acknowl\u00adedging their sexual orien\u00adtation, and major social media platforms including Facebook and YouTube banned posts suggesting that COVID may have origi\u00adnated in a laboratory. Similarly, Mill\u2019s point about \u201cliving truths\u201d seemed a little abstract to me when I first read it as an under\u00adgraduate. 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 \u201cdead dogmas\u201d has turned out to be.<\/p>\n

Freedom of expression in times of disin\u00adfor\u00admation and threats to democracy<\/h2>\n

Even so, I under\u00adstand 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\u2019t the threat of \u201cmisin\u00adfor\u00admation\u201d outweigh the benefits of free speech? And isn\u2019t it more important to preserve democracy than to care about the niceties of free speech? That\u2019s why (as I argued in my latest book, The Identity Trap<\/em>) the strongest arguments for free speech don\u2019t focus on the good things that happen when we uphold the practice; they focus on the terrible things that happen when we don\u2019t.<\/p>\n

Sadly, the ways in which restric\u00adtions on free speech in Europe have weakened, rather than strengthened, democracy perfectly illus\u00adtrate this point. The supposed goal of hate speech laws is to protect the vulnerable from offense or victim\u00adization. But virtually by defin\u00adition, those who get to make decisions about what kind of speech is permitted, and what kind of speech is verboten<\/em>, enjoy a lot of power\u2014whether they be judges and politi\u00adcians or whether they be senior execu\u00adtives in tech companies. And so it is hardly surprising that many of the people who have been prose\u00adcuted for speaking their mind, from a young black student in Britain to an old pensioner in small-town Germany, seem relatively powerless.<\/p>\n

Freedom of speech and holding power<\/h2>\n

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, incen\u00adtivizing 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 crimi\u00adnalize the speech of those who are out of power, the willingness to accept the rules of the game is likely to decrease signif\u00adi\u00adcantly. This is why restric\u00adtions on speech that have the putative purpose of supporting political moder\u00adation often end up fanning the flames of extremism\u2014and the seemingly ineluctable rise in restric\u00adtions on free speech has coincided with the seemingly ineluctable rise of the far right.<\/p>\n

The argument for strong restric\u00adtions on free speech implicitly rests on the idea that these have histor\u00adi\u00adcally proven necessary to preserve our democ\u00adratic insti\u00adtu\u00adtions, making them all the more justified at a time when author\u00adi\u00adtar\u00adi\u00adanism is on the rise. But this argument is historical nonsense twice over.<\/p>\n

Restricting freedom of speech to protect democracy?<\/h2>\n

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 \u201cmilitant democracy\u201d must censor extremists, for example, had far-reaching restric\u00adtions on free speech. Indeed, this gave judges signif\u00adicant leeway to favor their friends and prosecute their enemies, contributing to a deep distrust in the neutrality of democ\u00adratic insti\u00adtu\u00adtions which accel\u00aderated polar\u00adization and rewarded extremism.<\/p>\n

It has become fashionable to invoke Karl Popper\u2019s \u201cparadox of tolerance\u201d to justify restric\u00adtions on free speech. That\u2019s just plain wrong. This argument also wrongly presumes that restric\u00adtions 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.<\/p>\n

Censorship under\u00admines trust in democ\u00adratic institutions<\/h2>\n

Corre\u00adlation need not mean causation. But there is good reason to believe that the two phenomena are related. Censorship doesn\u2019t 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 democ\u00adratic insti\u00adtu\u00adtions; and to turn those who are censored into martyrs.<\/p>\n

Few things I do nowadays so reliably earn me stern rebukes from my readers\u2014and sometimes even emails so angry that they might be subject to prose\u00adcution for \u201cmalicious commu\u00adni\u00adca\u00adtions\u201d in some European country or another\u2014than my occasional insis\u00adtence that Europe has a serious free speech problem on its hands. Instead of responding to each of these comments or emails individ\u00adually, I decided to sit down and system\u00adat\u00adi\u00adcally set out my case. Sadly, the shocking examples I encoun\u00adtered 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 aston\u00adishing ease, jail people for what they say.<\/p>\n

Hypocritical critics but real problems<\/h2>\n

Yes, some extremists invoke the cause of free speech for their own sinister agenda. And yes, J. D. Vance\u2019s stark criti\u00adcisms of European restric\u00adtions on free speech reeked of hypocrisy in light of the Trump administration\u2019s own attempts to chill the speech of its critics. But the fact that some of the people who point to a problem aren\u2019t trust\u00adworthy doesn\u2019t mirac\u00adu\u00adlously mean that the problem isn\u2019t real\u2014and anybody who insists on blindly taking the opposite stance of people like Vance on any issue in the world effec\u00adtively outsources to him the decision of what they themselves believe.<\/p>\n

Restoring freedom of expression and fostering lively debate<\/h2>\n

Europe\u2019s far-reaching restric\u00adtions on free speech have already resulted in many serious miscar\u00adriages of justice. They now have a signif\u00adicant \u201cchilling effect\u201d on the ability to engage in robust political speech, which must include the freedom to express unpopular opinions and to satirize\u2014whether in good taste or bad\u2014the 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.<\/p>\n

Europe has a serious free speech problem. Instead of taking ever more measures to punish their citizens for what they say, it\u2019s time for countries from Germany to Britain to abolish the deeply illiberal legis\u00adlation they have, with little attention from the press or the public, intro\u00adduced over the course of the last decades. To live up to the most basic values of the democ\u00adracies that are now under threat, the continent needs to reverse course\u2014and restore true freedom of speech.<\/p>\n

The text was first published on the author\u2019s website in April.<\/a><\/em><\/p>\n

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