Europe’s Free-Speech Apocalypse Is Already Here
Fears of terrorism and refugees are turning countries like Germany, France, and Spain into surveillance states.
Europe’s silence in the face of Turkish President Recep Tayyip Erdogan’s hostile takeover of two of his country’s independent newspapers over the last weeks is being chalked up to the need to avoid jeopardizing Ankara’s finger in the dike of even more massive waves of Middle Eastern migration into the continent. But Europe��s cavalier attitude toward this kind of rising authoritarianism on its eastern border is more than just strategic indifference — it’s symptomatic of a steady erosion of core civil liberties within the EU itself.
In the 15 months since the Charlie Hebdo attack and, more recently, in the wake of the November terrorist attacks in Paris, free speech in Europe has been hit from all sides. Over the last year, France has enacted broad surveillance powers including warrantless wiretapping and mass metadata collection that critics call a “French Patriot Act.” The U.K. is debating a far-reaching surveillance bill, widely known by its nickname, the “Snoopers’ Charter,” that will cement the legal foundation for practices including breaking into digital devices and mass searches of internet records. Spain has prosecuted allegedly subversive puppeteers, and Germany has extracted commitments from social media companies to summarily expunge anything that smacks of hate speech.
Fueled by a potent combination of fears of terrorism and anxiety over the integration of more than a million refugees, European authorities are increasingly casting civil liberties as a luxury that tough times may not afford. In this uniquely anxious moment, when the premises of the European idea are being tested, freedom of speech should be treated not as yet another danger to the system, but as an essential safeguard that will enable Europe to weather the shocks it faces.
Government encroachments on free speech are an attempt to tighten control and consolidate power in the face of political stress and rising dissent. Absent an underlying sense of threat or insecurity in the system, even the most revolutionary speech is only words, scarcely menacing and unworthy of a reaction that would attest to its significance. Restrictions on speech meet with least resistance when populations at large feel buffeted by the same angst that torments policymakers. Citizens are often willing to trade away liberties if they are convinced doing so will keep threats at bay.
The recent panoply of new speech prohibitions in Europe has two mostly distinct justifications: countering the spread of terrorism and protecting minorities from hatred and potential hate crimes. Measures to rein in and track speech relating to terrorism range from petty to industrial. In Spain, a two-man puppet show performed in Esperanto about a squatter, a witch, and a landlord, with themes touching on Basque separatism and terrorism, led to the arrest of the puppet masters after a Madrid show last month. The marionette operators were charged with incitement to hatred or violence and “glorifying terrorism” and sent to prison without bail in a ruling defended by Madrid’s mayor. They now face up to four years in prison. This assault on cultural freedom is not an isolated incident. Spanish rap musicians and poets have been similarly targeted as of late for offensive and supposedly incendiary speech.
In a landslide decision last month, French lawmakers voted to extend the country’s post-Paris-attack state of emergency for another three months. Although a far cry from the days when French disdain for the United States’ post-9/11 policies led the U.S. Congress to rebrand its cafeteria french fries to “freedom fries,” France is enmeshed in its own terrorism-induced lash-out. In addition to expanded powers that now include conducting house raids, imposing house arrests, and stripping away the citizenship of dual-nationality terrorism convicts, newly enacted laws also extend the government’s reach into the realm of personal data, allowing powerful algorithms to sift through reams of metadata to identify suspicious contacts and patterns. Although this provision was dropped in the most recent extension, the original three-month emergency law (imposed directly after the November attack) empowered the government to “control the press,” including radio, films, and plays. According to Mother Jones, in those first few days, French police also barred journalists from interviewing witnesses and asked social media networks to censor photos of the killings.
These latest measures pile on top of a 2015 surveillance law, dubbed France’s “Big Brother,” which flies in the face of EU-wide efforts to protect citizens’ data from corporate collection and use. While the EU has been painstaking in imposing limits on data collection by internet service providers and platforms, it has been passive in the face of far-reaching surveillance tactics by governments. Drawing from the playbook of repressive governments including Iran’s, the law authorizes measures including keystroke logging and requirements that service providers install “black boxes” that alert authorities directly of suspicious online activity. Those measures have been repudiated by independent rights groups, as well as the U.N.’s prestigious 18-member Human Rights Committee.
Alongside expanded powers to ferret out terrorist speech are laws that purport to operate at a deeper level, targeting attitudes, sentiments, and prejudices toward minorities that can both motivate violent attacks and/or provoke a violent response. France has cracked down on so-called incitement to hatred, most visibly through the prosecution of anti-Semitic comedian Dieudonné M’bala M’bala, who was arrested after the Charlie Hebdo attacks for being “an apologist for terrorism.” He was convicted. And though his two-month sentence was suspended, it was followed by a separate charge and 60-day prison term in Belgium. European intolerance for anti-Semitic speech — including legal bans on Holocaust denial in 14 European nations — has obvious historical roots. Yet those prohibitions and related prosecutions have led to pointed charges of an unjustifiable double standard in terms of the softer treatment of speech that is racist toward other groups, including most notably Muslims.
This issue has gotten particularly complex and contradictory for Europeans in recent years. Although they are rarely enforced, antiquated anti-blasphemy laws are still on the books in several nations, including Austria, Denmark, Finland, Greece, Italy, and Ireland, dating from the days when insults to the church were not tolerated. A growing group of countries including the U.K. and Norway have hewed to the stance set out by the European Court of Human Rights and repealed such laws, prompted in part by the impulse to wash their hands of laws that bear any resemblance to bans on insults to religion in places like Pakistan and Saudi Arabia that hand down long jail terms and even death sentences to individuals who offend Muslim religious sensibilities.
But the impulse to resist prohibitions on content offensive to Muslims has been thrown for a loop by the recent refugee crisis and a surge in anti-immigrant attitudes. European nations are witnessing their self-image as tolerant and hospitable countries clash with their traditional commitment to free speech, a confrontation that has been fueled by the intense reactions over mass refugee inflows. Subscribing to the notion that hate speech can beget hate crimes and wider social unrest, Germany has taken a hard line on xenophobic speech. In October, a judge sentenced a man from northeast Germany to five months’ probation and a 300 euro fine for a Facebook post saying refugees should burn alive or drown in the Mediterranean Sea. When a Berlin man posted a note on social media saying that he celebrated the image of Alan Kurdi, the 3-year-old boy who drowned crossing the Mediterranean with his family, lying face down in the sand, police raided his home and confiscated his computer and phones.
Germany is going after not only the originators of offensive and bigoted content, but also the service providers and platforms that, even if unwittingly, provide a home for it. As a matter of corporate policy, and in order to avoid being sued, prosecuted, or ejected from jurisdictions worldwide, social media sites assume an obligation to comply with local laws wherever they operate. In Germany, and increasingly elsewhere in Europe, that means going along with strict curbs on speech. Berlin, for example, enforces strict prohibitions on Holocaust denial and neo-Nazism. France has called on social media companies to excise what it considers racist and anti-Semitic propaganda.
Responding to such pressure, Google, Facebook, and Twitter announced in December that they would work to delete anti-migrant sentiments voiced on their networks within 24 hours of request, imposing a level of control over ideas and viewpoints that goes far beyond what the companies’ own corporate content policies would allow. Two German lawyers are now pressing for a criminal action to fine Facebook CEO Mark Zuckerberg $163 million for failing to prevent users from posting anti-Semitic screeds including Nazi symbolism, as well as other hate speech. While prosecutors rejected the case this week, they did so on technical grounds having to do with the functions carried out by Facebook’s German arm, and the lawyers say they may appeal.
In mid-February, a respected Swedish cultural affairs journalist writing in the country’s second-largest newspaper called on Facebook to censor user comments that constitute hate speech, describing an anti-immigrant “lynch mob” in Stockholm as a manifestation that “internet hate is stepping out into the street.” There are also numerous reports of Swedish newspapers coming under pressure to suppress stories that cast a negative light on immigrants, including reports that a home for child migrants was housing men in their 20s who were allegedly responsible for acts of violence.
In democracies, policymakers may tighten the screws on speech less because they believe — as do many authoritarian governments — that they can frighten and intimidate dissent into disappearing than out of the desire to be seen as doing something in response to challenges that elude resolution through other means. The hidden threat posed by terrorist plotters in places like Paris and San Bernardino, California, is so insidious that getting alarming messages removed from Facebook and Twitter, whether effective or not, can offer authorities a convenient way to be seen as responding. When threats are all but invisible, cracking down on speech — which, by its very nature, is intended to be heard — can provide an audible and traceable manifestation of the menace. It can be an appealing target, no matter how many steps removed the offending content is from the actual peril for which it acts as proxy.
That the European impulse to target speech in a moment of crisis may be understandable doesn’t make it any less excusable. With respect to the measures in question — expanded surveillance, curtailment of online hate speech, prosecutions for alleged incitement — there is virtually no evidence to suggest a correlation between banning speech and reducing violence, bettering the treatment of refugees, or any other purported policy goal. Even if you believe that hate speech is part of a causal chain that leads to the commission of hate crimes, there is no evidence that suppressing or punishing such speech dampens the impulse to violence. Instead, these tactics (and their rationale) increasingly reflect a creeping tolerance for authoritarianism. Without more data and justification to back up their practical utility, these measures are premised not on the notion of a difficult but essential trade-off between the imperatives of security and civil liberties, but rather on the cynical and resigned notion that an open marketplace for ideas is destined to fail, with hateful ideologies proliferating unless they are forcibly silenced.
Compounding that grim premise is the near total absence of public outcry in defense of free speech. While human rights and press freedom groups are speaking out, the extended emergency powers in France have won overwhelming majorities, and the new social media restrictions in Germany don’t seem to trouble the public there very much. According to a November 2015 Pew Research Center poll, a median of 49 percent of people surveyed in six EU nations said government controls on speech against minorities were permissible (as compared to 28 percent of Americans). In Germany, the approval rate for such restrictions was 70 percent.
The thorny problems confronting Europe — involving difficult questions of cultural and national identity, social and economic dislocations, and nations’ roles in the region and the world — demand open and robust debate. While vigorous efforts are needed to promote cross-cultural understanding, respect for minority rights, and the rejection of xenophobia, these need not and should not come at the expense of free speech. Free speech is not the problem, but rather it is essential to the quest for solutions.
Photo credit: Ozan Kose/AFP/Getty Images
Suzanne Nossel is the CEO of PEN America. She was formerly deputy assistant secretary of state for international organizations at the U.S. State Department. Twitter: @SuzanneNossel