European repression against X/freedom of expression deserves absolute ridicule

When it conflicts with his own interests, X (formerly Twitter) CEO Elon Musk’s crusade for free speech sometimes runs into trouble.

Still, Musk deserves at least some credit for incurring the wrath of European authoritarians who want to apply European laws on speech to American social media companies and their American users. Musk is foolish to repost racist thug Tommy Robinson. The question is whether he should be prosecuted for that choice or others like it. I say he shouldn’t. Many British and European politicians, journalists and commentators say otherwise.

Consider the fire Musk received on Monday from Thierry Breton, the European Union’s internal market commissioner. Breton warned that Musk’s interview with Republican presidential candidate Donald Trump on Monday night could amount to a breach of EU law. Breton, for his part, said Musk must ensure that “all proportionate and effective mitigating measures are taken in relation to the amplification of harmful content in relation to relevant events, including live streaming, which, if not addressed, could increase the risk profile of X and have detrimental effects on civil society and public security.”

After demanding EU oversight of the US presidential election, Breton added that the EU’s legal obligations “apply without exception or discrimination to the moderation of the entire user community and content of X accessible to EU users.” In essence, Musk must either censor himself out of respect for Breton and the EU, or censor his interview with Trump for all EU users of X.

Given the functional impracticality and political immorality of the latter option, Musk would do well to laugh in Breton’s face. He should urge the EU commissioner to back up his words with action.

After all, Breton knows, though he is loath to admit it, that his only effective recourse here is to censor X in Europe. And that recourse would have significant political consequences. It would fuel the already widespread perception in Europe that the EU is autocratic and disconnected from its voter base. Banning X would also risk legal challenges in the EU, because such a ban would be disproportionately inconsistent with the protection of freedom of expression in Article 1, Section 2 of the EU Constitution. Even if a ban were found to be compatible with the EU Constitution, it would risk further undermining the EU’s political trust and the people’s trust in the EU.

The odds are not in Breton’s favor. By extension, the commissioner will surely know that Musk is highly unlikely to pay any significant fines or implement any algorithm changes that the EU might demand. Breton must fear that the U.S. government will view such a fine for what it is: just another tax under the EU’s brazen protectionist campaign against American tech companies. Both Democrats and Republicans are considering retaliatory measures against this campaign. And while it’s true that President Joe Biden’s Inflation and Reduction Act has brought unfair protectionism against Europe, the centrality of the U.S. tech sector to U.S. (and global) economic growth means that Washington cannot tolerate foreign protectionist attempts to damage it.

Every time the EU imposes multibillion-dollar fines on US tech companies, it increases the risk of major retaliation from the US government. And while X may be more of a social media company than a tech company, and Musk may not have many friends in Washington, the US government will be reluctant to let the EU slap a new protectionist norm on X’s back.

Yet Breton is far from the only European politician who has X in his sights. He is just the tip of the iceberg.

Leading British journalists and politicians are calling for criminal sanctions against Musk over his tolerance of legitimate but highly controversial public debates.

In the wake of the recent riots in England, for example, scores of Britons have been convicted of X-posts that are believed to have violated England’s laws against incitement to racial hatred. American journalists who report favorably on these convictions often fail to note that the laws do not require prosecutors to prove intent to incite racial hatred. They only require that racial hatred be likely to be incited. As with England’s law’s deference to Russian pro-mafia figures like Alisher Usmanov and Putin cronies like Roman Abramovich—although there is ample evidence to support this, I could not write about them if I were in Europe—the English legal approach to incitement to racial hatred is fundamentally incompatible with the American speech tradition.

In the United States, a finding of criminal solicitation requires that the speaker intended to commit lawlessness through his speech and that the speech was likely to result in imminent lawlessness. These requirements reflect the explicit and abiding interest of the Constitution and the judiciary in protecting robust public discourse to the extent feasible. In the United States, whether it is far-left activists protesting on college campuses or far-right activists protesting in Charlottesville, mere hate speech, short of threats or violence, is not and should never be sufficient grounds for criminal sanctions. Why?

The answer to that question is perhaps best underscored in the tort case of Snyder vs. Phelps.

That 2011 case involved religious fanatics who staged hateful protests near the funeral of a young Marine who had died in Iraq. Explaining why the court had thrown out a lawsuit brought by the Marine’s family against the protesting church, Chief Justice John Roberts noted that “speech is powerful. It can move people to action, move them to tears of joy and sorrow, and — as in this case — cause great pain. Given the facts before us, we cannot respond to that pain by punishing the speaker. As a nation, we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The problem with English legal norms and EU/European national laws closely related to them is that they privilege short-term stability over long-term discourse and sustainable individual freedom. Furthermore, the subjective nature of these norms invites political manipulation.

Take, for example, the recent X-activity of Alistair Campbell, the former communications chief to former British Prime Minister Tony Blair. In a post last Friday, Campbell called on London police to investigate journalist Douglas Murray over an interview in which Murray discussed his prediction of the recent riots in England in his 2017 book The strange death of EuropeIt says much, and none of it good, that Campbell, by now a prominent broadcaster, should so proudly call for criminal sanctions against someone who wrote astutely on a matter of clear public interest.

And then there’s Bruce Daisley, a British former Twitter executive. Writing in the Guardianhe calls for Musk’s arrest, explaining that “there is often a myopic sense in the US that its freedoms do not exist in the rest of the world, but in the UK’s Human Rights Act of 1998, Section 10, freedom of expression is enshrined.” Then, in a triumph of irony, Daisley adds that “crucially, there is a recognition that free speech carries with it a duty of responsibility. British law requires that such free speech is not used to incite crime or spread hatred.”

Or what about Guardian columnist Jonathan Freedland, who also wants Musk to face criminal charges. Freedland’s argument is at least partly intended as a comfort blanket for those on the European center-left who despise Musk. Freedland knows that Europe’s resources to take action against Musk are limited. Extradition requests or arrests of American individuals while traveling to speak in the U.S. would cause a major rift in transatlantic relations and end otherwise mutually beneficial extradition treaties. More telling is Freedland’s articulation of the central problem he, Breton, Campbell, and others have with X.

Namely that the platform is simply too popular in Europe for those those who know better to kill it. He actually concedes as much, noting, “What’s the answer to this problem? Ideally, all politicians, journalists, and influencers would defect en masse from X and use the global exchange for instant news and opinion elsewhere.” This leaves Freedland and his cohort with increasingly absurd dreams. Freedland invents Harris’s nonexistent unitary power to abolish the First Amendment, for example. As he puts it, “When (British Prime Minister Keir) Starmer sits down with President Kamala Harris in 2025, (coercive government action on disinformation) should be one of the first things on the agenda.”

At the heart of this controversy lies a fundamental philosophical divergence. Simply put, where Europe favors immediate social stability in governing speech, the US protects individual liberty.

The American approach is clearly superior to the European approach in moral, cultural and social terms. Unlike European laws on speech, American laws on speech encourage debate that goes to the heart of an issue. Just as importantly, they also provide the opportunity to express individual passion and anger. In contrast, European laws on speech work to bottle up frustration, making individuals feel that they do not have the right to speak freely on matters of urgent personal concern and public interest.

This leads to outbursts of extremist anger, as seen in the recent British riots and the triumph of far-right political parties in otherwise developed societies such as Germany. While European elites obsessively focus on the more unpleasant elements of Trump’s character and Musk’s sometimes idiotic reposts, they leave harder truths unaddressed. For example, the European establishment is quick to condemn American ignorance and racism, but much less willing to explain why so few minorities hold high ranks in business, politics and the military compared to the US.

The terms “misinformation” and “disinformation” may well be the battle cries of the center-left intelligentsia. That is ultimately the core problem here. Many on the right rightly believe that these terms are not being used as instruments of truth, but rather as daggers to dissect only subjectively undesirable speech. Similarly, while hate speech and Musk’s promotion of racist thugs like Tommy Robinson may be abhorrent to most of us, restricting this activity only fuels the metastases beneath the surface.

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Yes, of course it would be better if more X-users showed more common sense. Yes, of course it would be better if Musk would read more about the issues he pontificates on instead of flirting so easily with ignorance.

But Europe will not be able to appease Musk and X. And it should not. And if European countries try to do so, by arresting Musk or any other American for speaking on American soil, the US government should impose very high costs.