By Kevin D. Williamson
Sunday, June 21, 2020
In the United States, the
Purge is well under way. How ridiculous is it? Equity Prime Mortgage, a
lender in Georgia, has just canned its human-resources director because her
stepson is Garrett Rolfe, a former policeman charged with murder in the June 12
killing of Rayshard Brooks, and she apparently believes this charge to be
unjust. Equity Prime very publicly declared that it had fired the woman over
her “views” (their word), which apparently made some of her colleagues
uncomfortable. (Maybe their views made her uncomfortable, too?) The company is
not being very forthcoming about what actually happened, and those details
matter: Did she show up at work one day and make a big speech about the issue,
or is this another case of some ratty little informer, some East German-style inoffizieller
Mitarbeiter, engaged in petty vindictiveness?
One understands Equity Prime’s sensitivity. We wouldn’t
want anybody sullying the good name of the American mortgage-lending industry,
the reputation of which is right up there with those of meth-cooking outlaw
bikers and the ghost of Jeffrey Epstein.
Where the culture goes, the law follows. President Donald
Trump, stung by his unrequited love of Twitter, has had his Justice Department
roll out ridiculous rules that would — if they stood up in court, which they
probably won’t — make technology companies legally liable for slanders posted
by their users. If somebody — say, Donald J. Trump — tweets something libelous,
then Twitter could be sued for it. But it goes well beyond the social-media
companies Republicans hate: The rules the Trump administration seeks to reverse
were originally put in place to protect firms such as ISPs and web-hosting services
from lawsuits resulting from material published on websites over which back-end
providers exercise no editorial control. The legal arrangement the Trump
administration seeks to overturn is what makes free speech on the Internet —
your ability to publish a blog post without going through prior review by
employees of, say, AT&T — possible.
The Trump administration’s proposal is pure vendetta, but
then so was Harry Reid’s attempt to gut the First Amendment a couple of years
ago, a proposal endorsed by — let’s not forget this part — every single
Democrat in the Senate. The cause of free speech has few friends.
In the United States, anyway.
In France, the Constitutional Council (something like our
Supreme Court) has struck down a new set of regulations put forward by the
government of President Emmanuel Macron that would have imposed heavy fines on
technology companies if they were insufficiently energetic in taking down
certain “hateful” content. Under the Macron rules, companies such as Facebook
would have been legally responsible for doing that policing on their own
initiative (as opposed to being directed to remove illegal content by a judge),
and would have been given as little as one hour to act in some cases. It was an
absurd proposal, though not quite as absurd as the German approach upon which
it was based and which is standing law in that country.
The French court cited the 1789 Declaration of the Rights
of Man and Citizen: “The free communication of thoughts and opinions is one of
the rights the most precious of man: Any citizen can therefore speak, write,
print freely, except to answer for the abuse of this freedom in cases
determined by law.” The new rules would have inhibited speech in a way that was
not “suitable, necessary, and proportionate,” (“adaptées, nécessaires et
proportionnées”), the court said. The first two of those three criteria
would, if properly evaluated, set a very high bar for limiting speech in any
case, because there are so few cases in which doing so is genuinely necessary
and suitable. But the French view of free speech, like the Western
European view more generally, is much less liberal than the traditional (and
rapidly being eviscerated) American consensus, with the French holding that
censorship is appropriate in the case of speech that would “undermine public
order and the rights of third parties,” as the Constitutional Council puts it.
That is vague, and vague government powers are constant dangers.
This small victory for free speech in France does not put
Europe on the road to a First Amendment. And that should be of interest to
Americans, not only as a point of comparison but also for practical reasons:
Companies such as Facebook endeavor to comply with the law in the countries
where they operate, and corporations by nature prefer the bureaucratic
qualities of conformity, homogeneity, and standardization. For much the same
reason that most U.S. automobile companies have long built cars that satisfy
California’s stricter air-pollution standards even when those cars are destined
for Louisiana or North Dakota, firms such as Facebook have incentives to
develop procedures that satisfy their most demanding regulators worldwide
rather than their more permissive ones, and so it is likely that Americans
relying on global technology companies will feel some influence from Berlin,
Brussels — and Beijing.
Of course, social media is a sewer, and excepting the
shareholders the world would not be much worse off if Facebook and Twitter
disappeared tomorrow. But for many millions of people, these sewers are the
primary means of political communication. A legal right to free speech is
nothing without the means to act on that right — and neither of those is worth
very much without a free-speech culture. Twenty years ago, it might have made
sense to argue for pushing Western Europe in a more American direction.
In 2020, we’d be lucky to push America in a more American direction. Vive la liberté.
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