Against Free Speech: Merkel, May (and Macron)
Theresa May and Angela Merkel have quite a bit in common. For example, both are suspicious—more than suspicious—of the free market and both are daughters of clergymen (speculation, of course, but those two facts might not be entirely unconnected). Both are authoritarians.
Authoritarians don’t like speech that is, well, too free, and that, of course, brings them up against the unruly reality of the Internet.
In April 2017, the German cabinet passed new legislation on hate speech that the German Bundestag is scheduled to adopt in the summer. The law enables Germany to fine social media companies up to 50 million euros ($55 million) for not reacting swiftly enough to reports of illegal content or hate speech.
The law has an aptly German name Netzwerkdurchsetzungsgesetz, or Network Enforcement Law. But its main target is U.S. tech giants, which provide the main social media networks in Germany. The clash between U.S. social media companies and the German government is about more than deleting hateful online comments. It is a fight about how much free speech a democracy can take.
Ponder that last sentence:
It is a fight about how much free speech a democracy can take.
And then re-read the First Amendment.
The new law applies to social media platforms with over two million users and imposes large fines if they do not delete posts contravening hate speech law within 24 hours of receiving a complaint. In response, a broad opposition coalition swiftly emerged. Although the law excludes journalistic platforms where someone is already accountable for content, such as online newspapers, the German Journalists Association joined civil rights activists, academics, and lawyers in signing a joint statement warning that the law “jeopardizes the core principles of free expression.” In addition, the Global Network Initiative (GNI) an international coalition of tech companies, civil society groups, investors, and academics asserted that the law “poses a threat to open and democratic discourse.” These groups worry that the law might lead to broad censorship of the Internet and create a precedent for more authoritarian regimes to further restrict free speech on the Web.
They are right to worry.
Created in 1949, the West German federal constitution, also known as the Basic Law or Grundgesetz, contained a central paradox. Many West German politicians—conservatives and social democrats alike—believed in a “militant democracy,” one where free speech could be constrained to protect democratic norms. Essentially, democrats had to use undemocratic means to protect democracy. Article 18 of the constitution states that anyone abusing rights like freedom of speech to undermine a free democratic order might forfeit those basic rights.
In the specific circumstances of Germany just after the fall of the Third Reich, that might (just) be understandable, but now?
It also raises the question of who decides what speech is to be defined as suspect. Quis custodiet ipsos custodes and all that.
Foreign Affairs quotes German Justice Minister Heiko Maas as saying that “freedom of speech has boundaries.”
Maas aims to expand Germany’s approach to all of Europe, probably by introducing similar legislation in Brussels. With Emmanuel Macron as France’s newly elected president, Maas might succeed. Macron said during his campaign that he wanted to stop fake news and “regulate the Internet because today certain players are activists and have a very important role in the campaign”.
Who defines what is fake news? We are often told these days that Merkel and Macron (in contrast to wicked Donald Trump) are the defenders of the liberal order, but theirs seems to be a liberal order where free speech is kept on a leash. That does not look to me like a liberalism worthy of the name. The reference to plans to neuter free speech elsewhere in ‘Europe’ (ie the EU) suggests that post-Brexit Britain might escape. That would be optimistic. As Brits discovered under Blair, Brown and Cameron, reining in free speech is popular across the UK’s political class (even more so in Scotland, incidentally), but Theresa May, that accomplished enabler of the predatory state, is likely to make it even worse.
The Independent (my emphasis added):
While much of the internet is currently controlled by private businesses like Google and Facebook, Theresa May intends to allow government to decide what is and isn’t published, the manifesto suggests. The new rules would include laws that make it harder than ever to access pornographic and other websites. The government will be able to place restrictions on seeing adult content and any exceptions would have to be justified to ministers, the manifesto suggests. The manifesto even suggests that the government might stop search engines like Google from directing people to pornographic websites. “We will put a responsibility on industry not to direct users – even unintentionally – to hate speech, pornography, or other sources of harm,” the Conservatives write…. But perhaps most unusually [technology companies] would be forced to help controversial government schemes like its Prevent strategy, by promoting counter-extremist narratives… The Conservatives will also seek to regulate the kind of news that is posted online and how companies are paid for it. If elected, Theresa May will “take steps to protect the reliability and objectivity of information that is essential to our democracy.”
So Britain’s political class is going to “protect the reliability and objectivity of information”.
What could possibly go wrong?