By Yascha Mounk
Wednesday, April 23, 2025
Imagine this scenario.
The interior minister of a country that considers itself
a democracy reports hundreds of citizens to the police for making critical
statements about her while she is in office. Many of them are given hefty
monetary fines or even prison sentences.
In protest, a journalist publishes a satirical meme. It
features a real photograph of the interior minister holding a sign that is
digitally altered so that, apocryphally, it reads: “I hate freedom of speech.”
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.
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