Your Right to Say It!

I am seldom surprised by anything anyone on the Left does or says anymore, but that doesn’t mean I don’t occasionally shake my head at how little many on the Left understand the Constitution and the vision of the Founders.

Not surprisingly, On April 22, 2022,  former presidential candidate, Hillary Clinton, urged the European Union to finalize the Digital Services Act (DSA) to combat online disinformation.  In a tweet, she stated: “The EU is poised to do something about it. I urge our transatlantic allies to push the Digital Services Act across the finish line and bolster global democracy before it’s too late.” And for those who are unfamiliar with Europe’s Digital Services Act, the DSA is a European Union law regulating “online platforms and services to combat illegal content, misinformation, and online harms.”  It became fully applicable on February 17, 2024.

But what exactly what does DSA do?  Basically, the DSA sets the rules for online platforms, requiring them to address illegal content including hate speech (more on that later) and disinformation.  The DSA applies to all online services operating in the EU, begging two very important questions – who decides what is or isn’t disinformation, and who decides what is or isn’t hate speech?

~ What is hate speech? ~

Hate speech laws in the United States and Europe differ significantly, although it appears our gal Hillary prefers the European version with its contrasting legal traditions, cultural attitudes, and interpretations that differ from those on this side of the Atlantic.  The United States Constitution vigorously protects free speech, including offensive or hateful speech, unless it directly incites violence or lawless action.  And on this next point I will be very clear.  There is no legal threshold for hate speech because hate speech is not a legally defined category in the U.S.; speech is generally only punishable if it involves threats, harassment, or incitement to immediate violence.  The U.S Supreme Court has upheld that even highly offensive speech (such as protests at military funerals) is protected.

At the same time however, some states have hate-crime laws that increase penalties for crimes motivated by bias, but they do not criminalize speech alone.  Nonetheless, as noted, speech can be restricted if it constitutes true threats, incitement to violence, defamation, or harassment, but these exceptions are very narrow.

The Europeans however appear to be trying to create an equilibrium by balancing free speech, public order and historical accountability, which is akin to making a square circle and begs the larger question – who makes those decisions?  This is where the U.S. departs from the EU.   European nations criminalize hate speech under laws that prohibit incitement to hatred, discrimination, and violence, although it escapes me how their legal systems measure, much less prove ‘incitement to hatred or discrimination.’

Understandably, Holocaust denial & historical restrictions exist in Germany, France, and Austria where denying the Holocaust is banned along with Nazi symbols.  At the same time, the European Court of Human Rights also restricts speech that is deemed hate-driven, racist, or xenophobic.  And this is where the Europeans and treading on a very slippery slope.  The German criminal code criminalizes incitement to hatred and Holocaust denial, the French Gayssot Act bans Holocaust denial and racial hatred, while the UK’s, Public Order Act 1986 criminalizes inciting racial or religious hatred.

Vis-à-vis the foregoing it should be painfully obvious the real divide between Europe and United States isn’t the Atlantic Ocean, rather, it’s our Constitution that prioritizes free speech, even if offensive, while Europe has adopted a far, far, more restrictive approach to speech in order to “protect social harmony and historical accountability.”

Europe’s experiences with the Nazis and the Holocaust are going to influence and shape the ideas and notions about free speech, but it shouldn’t dictate them.  And Vice President Vance was absolutely on target when he chastised the Europeans last month at the Munich Security Conference telling them how the greatest threats to democracy aren’t coming from Russia or China, but rather from within their own borders by restricting that most basic and precious of all human rights – Freedom of Speech!

Quote of the day: “I disapprove of what you say, but I will defend to the death your right to say it” – Evelyn Beatrice Hall summarizing Voltaire’s views on freedom of speech.