Free Speech Crumbles in Europe – Yascha Mounk

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 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 Chancellor Olaf Scholz’s outgoing coalition government have been even more aggressive in targeting critics.

Robert Habeck, a leader of the Green Party, initiated more than 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 6 a.m., confiscating his iPad and starting criminal proceedings against him.

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 professor at the local music university, a mild-mannered lady who was then already well into her 60s, 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, and demanded 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.

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 such as Twitter and Facebook that they needed to err on the side of censoring any content that might conceivably be illegal in order to keep operating in the country. When Russian President 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.

Then, Germany’s outgoing center-left government created a new provision which gives special speech protection to politicians. According to Paragraph 188 of the German Criminal Code, anyone who makes a critical remark about a political figure that they cannot substantiate is subject to enhanced penalties, including 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 toward 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 the 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 followed the country’s lead, making it astonishingly easy for the police to arrest citizens who say things that shock or offend.

In late January, six police officers approached the front door of Maxie Allen and Rosalind Levine in Hertfordshire, an area north of London. After briefly speaking to the middle-aged couple, the police took them into custody, where they would go on to be incarcerated for eight hours under suspicion of having sent “malicious communications.” (The police later found they had “insufficient evidence” to take further action against the couple.)  

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. 

Britain does not have an equivalent of the United States’ First Amendment. But protections for free speech have long played an important role in common law, and Britain has always taken pride in its reputation for free thinking. When I first visited London as a teenager, I made a pilgrimage to Speaker’s Corner—a part of Hyde Park that has been famous for allowing the public expression of unpopular views since the middle of the 19th century—and listened in fascination as a parade of cranks, preachers, and extremists made their case to bemused onlookers.

But the times in which Britons could confidently say whatever they wanted without the fear of landing in jail are now long gone. It began, as in many European countries, with legislation regulating hate speech. 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.”

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 wide latitude in enforcing them, Britain has quickly become one of the continent’s leaders in prosecuting people for speech, with the outcome often resulting in prison sentences. As the Times of London recently reported, “officers from 37 police forces made 12,183 arrests in 2023.” This means that, on average, more than 33 people in the United Kingdom were arrested every day for what they had said on the internet.

Many of these people, like Allen and Levine, have done nothing wrong. In one particularly egregious case, for example, 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; she silently held up a sign reading, “Coercion is a crime, here to talk, only if you want,” and four police officers promptly arrested her. In yet another case, a severely autistic 16-year-old girl was manhandled and arrested by police in West Yorkshire on 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, 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 almost certainly count as protected speech. But under the more draconian and less clearly defined British standards, an ill-conceived tweet can quickly turn into a lengthy prison sentence. Within three months of sending her tweet, Connolly was sentenced to 31 months in prison.

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 wrote 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 passed by parliament would significantly broaden “hate speech” protections 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 on hate speech enacted by the bloc’s members. 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. 

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 against state censorship fully apply to them.

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.

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 the people who have been prosecuted for speaking their mind, from a young black student in Britain to an old pensioner in a small-town Germany, seem relatively powerless. 

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 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.

Europe’s far-reaching restrictions on free speech have resulted in many serious miscarriages of justice. They 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 to 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. To live up to the most basic values of the democracies that are now under threat, the continent needs a radical change of course. Instead of taking ever more measures to punish their citizens for what they say, it’s time for countries from Germany to Britain to reverse course—and restore true freedom of speech.