Originally Published in The Hill
In February, German Chancellor Angela Merkel said she supported a “free, independent press” and had “high respect for journalists.” Her comments were widely interpreted as a response to President Trump’s tweet that the mainstream media is “fake news” and an “enemy of the American people.”
But while Trump may use harsh language against journalists, unlike Germany, he does not use his power to suppress free speech.
Though not finalized, Germany’s cabinet just approved a bill that would levy fines up to 50 million against social media companies that fail to remove “hate speech” or “defamatory fake news.” This comes less than a year after Facebook, Twitter, YouTube, and Microsoft agreed to a Code of Conduct with the European Union, requiring them to review and the majority of “valid notifications” of “illegal hate speech” within 24 hours.
Interestingly, the code did not mention “fake news.” As in the U.S., the concern only arose after the American election. Since then, European politicians and journalists have blamed fake news for Brexit, the Italian constitutional referendum’s defeat, and opposition to increased refugee admissions. By December, Germany’s Interior Minister Thomas Oppermann proposed an Orwellian “Center of Defense Against Disinformation.”
The Associated Press wrote that Germany “poses a particular problem for U.S.-owned social networking sites accustomed to American standards of free speech.” This is an understatement. In addition to the First Amendment, Section 230 of the Communication Decency Act protects social media companies from liability for their users’ content. In contrast, all European countries have hate speech laws and the European equivalent to Section 230, European Commission E-Commerce Directive 2000/31, only grants platforms immunity if they were ignorant of the illegal content and promptly remove it once notified.
The First Amendment does not, however, impose free speech rights on privately owned companies. Thus, they can comply with both European and American laws by expanding censorship. American tech companies once invoked our Constitution to resist these restrictions. In 2000, a French court threatened to heavy fines against Yahoo if it did not block Nazi websites. A U.S. district court held that “enforcement of the French orders in the United States would violate the First Amendment.” However, after several years of litigation, the Ninth Circuit Court of Appeals reversed the decision on procedural grounds.
Now, most platforms attempt to accommodate European censors. In the Facebook manifesto, “Building Global Community,” Mark Zuckerberg argued that because “our community spans many countries and cultures, and the norms are different in each region,” it is not “feasible to have a single set of standards to govern the entire community so we need to evolve towards a system of more local governance.” He proposes “creating a large-scale democratic process to determine standards with AI to help enforce them.”
Whether this is feasible or not remains to be seen. In the meantime, European speech laws are affecting American companies. As George Washington University Law Professor Jeffrey Rosen explained:
The social media service providers have generally adopted European-style definitions that they are enforcing in the American tradition. But they are doing this without transparency or oversight, entrusting these decisions to user flags that are reviewed by lawyers and policy staffers, who combine the function of legislators, judges, and executive officials.
To make matters worse, many foreign countries view American protections as an obstacle. Israel’s Global Forum for Combating Anti-Semitism held a working group on hate speech legislation. Its mission statement complained that the “First Amendment … turned the U.S. to an Internet haven for hate mongers and Holocaust deniers.” The forum also published a report celebrating Twitter’s adoption of “policies to move away from [the] U.S. legal standard.”
Rather than promote America’s legal traditions, the Obama administration encouraged further censorship. It pressured Google to remove the anti-Islam “Innocence of Muslims” film from YouTube after riots erupted across the Muslim world. Ira Forman, the State Department’s Special Envoy to Monitor and Combat Anti-Semitism, reportedthat he “spoke at length” with a Facebook executive “about how social network platforms can use ‘terms of service’ to remove anti-Semitic material.”
The U.S. cannot control other developed nations’ internal policies. However, especially as Chancellor Merkel is hailed as the new “leader of the free world,” the Trump administration should speak out against European censorship and consider steps to limit its effects on Americans. At a bare minimum, it should not facilitate or encourage any restrictions which contravene the U.S.’s commitment to free speech.