The EU Is Beset by Pesky Notions of Free Speech

On a sunny day this past summer, I was strolling through Karlsruhe, a provincial German town where Germany’s Constitutional Court sits, when I happened upon a peaceful demonstration demanding freedom of the press. A casually dressed youth with a megaphone was exhorting spectators to resist threats to freedom and democracy. A hippie in a white blouse and flowing floral trousers held a sign caricaturing Germany’s legacy media as “the real fake news.” A 20-something lass with pink hair and black-strapped shoes raised a placard declaring “Without freedom of the press, democracy is bankrupt.” Another banner proclaimed “Freedom of the Press” above dates noting that noble concept’s birth in modern Germany—May 23, 1949, the day the Federal Republic, or West Germany, was founded—and its putative death—July 16, 2024, the recent day when Germany’s interior minister banned a political magazine.

Thus did I come into contact with what the German government now considers the “far right.” Despite the activists’ styles and slogans, they were not liberal idealists protesting conservative censorship, but right-wing dissidents protesting their leftist government’s decision to shutter Compact, a magazine that supports the Alternative for Germany (Alternative für Deutschland, or AfD) party. In June, AfD placed second in Germany’s elections to the European Union Parliament after running on an anti-illegal migration platform. According to Nancy Faeser, the socialist interior minister responsible for the ban, Compact, which boasts 40,000 subscribers and reaches many more through online media engagement, is a publication of “intellectual arsonists who incite a climate of hatred and violence against refugees and migrants and seek to overthrow our democratic state.”

Faeser’s ban on Compact was no mere administrative sanction. Rooting her decision in a German law that broadly forbids political activism opposing the country’s constitutional order, she dispatched 339 police officers to raid 14 locations, including Compact’s offices, the offices of its parent company, and the homes of its staff and shareholders. The police seized technical equipment, office furniture, vehicles, merchandise, liquid assets, and just about anything else they could physically take, as well as bank accounts. Compact’s video production subsidiary was also closed. The magazine’s websites were blocked, and its social media accounts were contacted with an eye toward forcing them to shut down. Germany’s Federal Administrative Court later suspended the ban pending the results of a full investigation, but Compact’s ultimate fate remains unknown and will be decided in a legal battle between a relatively small publication and a national government with practically unlimited resources.

Tension between free speech rights and the European administrative state has exploded in recent years, particularly with the expansion of social media, nontraditional news sources, and transnational conduits of information. While neither the EU nor any of its 27 member states recognizes freedom of speech and expression with the same breadth that U.S. courts have found in the First Amendment, both the supranational body and its constituent parts nominally accord the concept protection as a fundamental human right. Without a robust, precedent-based legal system, however, Europe is struggling to decide where to draw the line. Naturally, those in power—generally statist bureaucrats relying on the center left’s entrenched hegemony in EU institutions and many national governments—are increasingly setting limits to protect themselves and their values at the expense of those who disagree or merely assert the freedom to express themselves. As the Compact case shows, it was the state’s prerogative to decide when “purposes of state” superseded the right of free expression.

Germany is at the forefront of European nations restricting free speech. While Article 5 of its constitution guarantees that “every person shall have the right freely to express and disseminate his opinions in speech, writing, and images,” the foundational law prohibits speech that is racist, pro-Nazi, or, as Compact was accused of doing, advocates against the constitutional order of the country. In recent years German law has superseded constitutional limitations on speech. Late in Angela Merkel’s chancellorship (2005-21), the scope of German defamation statute was expanded to prohibit criticism of politicians who believe such expression interferes with their official duties. The definition of “official duties” and how criticism might unlawfully “interfere” with them was left vague. Perhaps predictably for such an ill-defined offense, since 2021 there have been more than 1,300 criminal complaints against German citizens for comments, memes, or social media posts critical of those in power, including clear cases of satire and even simple social media posts calling elected officials “idiots.”

In 2018, Germany adopted a comprehensive law, the Network Enforcement Act, or NetzDG, which requires social media platforms with 2 million or more users to remove “illegal content,” as defined in 22 articles of the national criminal code, within 24 hours of posting or face fines as high as 50 million euros. Since 2021, Germany has also enforced a broad “anti-hate speech” law that has resulted in over 1,000 criminal prosecutions for expressions of “hate”—again sparingly defined—with punishments ranging from fines to up to two years in prison, all in the name of protecting what a Justice Ministry spokesman called “every single person in our society from hostility and exclusion.” In June 2024, such protections extended to a convicted rapist who had received a suspended sentence but saw an ill-wisher sentenced to a brief jail term for calling him “a disgusting pig” in a personal WhatsApp message.

Some EU countries have been trying their best to follow Germany’s example. Using Germany’s NetzDG law as a model, the then-center-left majority of France’s National Assembly passed legislation intended to remove various forms of objectionable speech—including terrorist material, pornography, and “hateful content” (contenus haineux)—from major social networks, search engines, and similar platforms. Named after its sponsor, Laetitia Avia, a deputy of President Emmanuel Macron’s La République En Marche! (now “Renaissance”) movement, the “Avia Law” was quickly stymied by France’s Constitutional Council, which ruled almost all of its provisions unconstitutional. One of the chief objections was that “hate” has no definition under French law apart from very limited contextual applications to “hate crimes.” It did not help that Avia herself was accused at the time of harassing multiple members of her staff with racist, sexist, and homophobic language that might have risen to her bill’s definition of “hateful content.”

Among the few Avia Law provisions that remained, however, were articles allowing for a specialized prosecution service for hate crimes and an “Online Hate Observatory,” attached to France’s Regulatory Authority for Audiovisual and Digital Communication (Arcom), which has discretionary power to sanction media outlets for “hateful content” and “fake news” (manipulation d’information, widely known as “la loi fake news”). In November 2024, Arcom fined a conservative news channel 100,000 euros after a program host stated that abortion is the world’s leading cause of death—a controversial statement, perhaps, but certainly an opinion that would be recognized as legitimate by familiar social institutions and stakeholders, like the Catholic Church.

Some countries without far-reaching free speech laws have used incremental legal measures to restrict speech. Spain’s new law code of 2015 contained the usual postwar pan-European prohibitions against racist speech. In the years since, however, successive Spanish legislation has criminalized “hate speech” directed toward individuals on the basis—whether real or presumed—of sexual orientation, disability, family status, illness, and other protected characteristics valorized by the progressive left, including the newer concept of “social exclusion.” Sanctions increased from the fines that were previously imposed to up to three years in jail. In 2019, a popular YouTube host was sentenced to 15 months in prison for humiliating a homeless person in an online video.

Often sanctioned by Spain’s courts, the concept of legislating against free speech has migrated to the political realm. In 2022, Pedro Sanchez’s leftist government passed the “Democratic Memory Law,” which outlaws any form of expression “favorable” to the regime of Francisco Franco, a historical period that lasted from 1936 to 1975. “Favorable” was undefined, however, nor are there any comparable prohibitions on expression “favorable” to past actions by Spanish communists or anarchists who opposed Franco while also committing a wide range of politically motivated crimes including mass murder.

Governments in countries with stronger judicial protections have been more creative, reviving long-abandoned laws against blasphemy and lèse-majesté to address violence and disorder arising from the Middle East conflict. Denmark, for example, introduced laws against racist speech as early as 1939, in response to rising antisemitism drifting across the border from neighboring Nazi Germany. Those laws, however, were only lightly enforced, with courts routinely finding that jokes, satire, insults, and so on were protected speech. With rising demonstrations against radical Islam in more recent times, however, Denmark’s left-wing government last year revived legislation against blasphemy which had not been enforced since 1946 and had been formally repealed in 2017. The new law, often called the “Quran Law,” prohibits the destruction of the religious symbols and texts of any established faith.

Neighboring Sweden also maintains a law broadly prohibiting hate speech, initially addressing race, religion, and ethnicity. In 2002, legislation added sexual orientation to the list of protected characteristics, though enforcement has been relatively light. In 2024, in response to pro-Palestinian protests, the law was further amended to prohibit denial of genocide. Anti-Muslim protests, which included public burnings of the Quran, remain legal, which in 2022-23 created a temporary obstacle to Sweden’s prospective membership in NATO, due to Turkish objections.

While the free speech records of individual EU member states are mixed, the EU itself is getting in on the act by theoretically imposing speech laws over all member states, regardless of national-level constitutional protections and traditions. The innocuously named “Digital Services Act” (DSA) of 2022, championed by European Commission President Ursula von der Leyen, expands the most oppressive national laws—those of her native Germany—continentwide. As in the German case, large-scale media and digital marketplace companies—defined as having 45 million users or more—can face heavy fines for hosting content determined to be false or unlawful, with questionable legal or procedural oversight.

DSA’s full effect remains to be seen. As with any EU legislation, implementing DSA both generally and across 27 member-state bureaucracies will take years. It will also depend on the initiative and interpretative whims of national officials, not all of whom are efficient or sympathetic. DSA’s language itself is a challenge, since it requires its own mandate to be “interpreted and applied in accordance with … the freedom of expression and of information,” which the EU and all member states nominally protect. In these circumstances, freedom of speech and expression will be arbitrated by whoever holds the strongest combination of coercive power and ideological zeal among national and EU-level jurists, regulators, and bureaucrats.

At the supranational level, the bureaucrats already seem to have the upper hand. DSA’s only concrete test case so far has been the July 2024 criminal prosecution of Elon Musk’s X (formerly Twitter) for allegedly publishing false information—specifically the blue check signs that purportedly authenticate high-profile accounts—on the theory that the symbols might have misled X users in the EU. Thierry Breton, a longtime French telecommunications executive who was in charge of DSA enforcement as the EU’s commissioner for internal markets at the time of the lawsuit against X, used the opportunity to admonish Musk to avoid “harmful” statements in an interview that the tech entrepreneur was scheduled to conduct on the platform with his fellow American and then-U.S. presidential candidate Donald J. Trump. Breton framed the matter as an EU issue since EU users had the ability to access the event and potentially encounter opinions from the two Americans that they might find objectionable.

Musk, who will co-direct the new Trump administration’s government efficiency efforts, promptly posted a meme telling Breton what he could do with himself. But he might just as well have reminded the EU bureaucrat, who left office under an ethical cloud in September on an occasion that Musk promptly hailed as “a great day for free speech,” that the ability to regulate speech is hardly absolute, either.