France rediscovers free speech as the United States abandons it.
NRPLUS MEMBER ARTICLE
n 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.