Since the end of the Cold War Europe has been obsessed with the idea of eradicating hate as a shortcut to eternal peace. In short, a world relieved from human conflict. This is an utopia and we know from earlier attempts to turn utopias into reality that one of the first victims of these fantasies is freedom. In this case freedom of expression will be endangered.

Germany has for several years been at the forefront of this endeavor so it shouldn’t come as a surprise that the German government now wants to enable its authorities to fine social media companies up to 50 million euros for not deleting online ”hate speech” and defamatory ”fake news” within 24 hours after being notified.

In Germany criminalization of hate speech and fake news is seen as a legitimate way to protect democracy and the historical truth against onslaught. That’s why a mainstream German politician and member of the European Parliament a couple of years ago countered my criticism of legislation against Holocaust denial by insisting that ”European citizens have a constitutional right to the truth.” The frightening implications of this statement didn’t bother him at all. He didn’t realize that it would be welcomed by any dictator wanting a monopoly on state-sanctioned ”facts” and ”truth”.

In Germany and other European democracies the right to free speech is just one among many rights that has to be balanced against other rights, values and considerations, be it public order, dignity, democracy, religious sensibilities, security, equality and so on and so forth.

In the U.S. the First Amendment’s protection of speech cannot be balanced against other rights. That principle has served the US well.

When Heiko Maas, Germany’s minister of justice, earlier this year announced that the government was planning new legislation to criminalize fake news he said:

Defamation and malicious gossip are not covered under freedom of speech. (…) Justice authorities must prosecute that, even on the internet. Anyone who tries to manipulate the political discussion with lies needs to be aware (of the consequences).

This phrasing sounds disturbingly familiar to brave individuals and groups who during the Cold War were fighting oppression behind the Iron Curtain. The Soviet Union made it a serious crime to distribute false and slanderous information defaming the Soviet social and political system. Such criminal laws were widely used by the Kremlin to silence dissidents, human rights activists, religious movements, and groups in the Soviet republics fighting for national independence.

Recently in Foreign Affairs, Heidi Tworek, a fellow at the German Marshall Fund’s Transatlantic Academy and an assistant professor of International History, frames the German government’s targeting of U.S. tech giants like Facebook, Twitter, Google and Microsoft as ”a fight about how much free speech a democracy can take.” She adds that ”social media companies have brought this law upon themselves by failing to understand the historical reasons why the German definition is different than the American one.”

Germany’s push for enforcing its limits on free speech on the European level has been going on since the end of the Cold War. A European Union decision from 2008 aimed at fighting racism and xenophobia called for tougher hate speech legislation and for every EU member state to pass laws criminalizing Holocaust denial. These laws are now on the books in 13 EU-countries.

They were all passed after the fall of the Berlin Wall, not during the first decades following the genocide of European Jews during World War II. The legislation has triggered a wave of memory laws across Europe that challenges academic freedom and freedom of speech. In several former Communist states in Central and Eastern Europe it’s now a criminal offense to deny or minimize the crimes of Communism. Russia has passed a law banning criticism of the actions of the Soviet Union during World War II and Ukraine’s parliament has adopted a law criminalizing insults on to the country’s fighters for national independence in the 20th century. Among them were groups implicated in mass killings of Jews and Poles in Western Ukraine and Poland. Latvia has adopted a law criminalizing speech that denies the fact that Latvia was occupied by both Nazi Germany and the Soviet Union. 

In the aftermath of the refugee crisis in the summer of 2015 the EU-commissioner for judicial affairs, Vera Jourova, said it was disgraceful that Holocaust denial is a criminal offense in only 13 EU-member states. She called for additional measures to combat hate speech. In 2016 the US tech giants signed a Code of Conduct with the EU that obliged them to remove illegal hate speech or disable access to such content with 24 hours of notification. And now we have the German government passing a law that threatens media companies that do not delete ”false information” and ”hate speech”. 

There is no agreement on a clear definition of hate speech, which means that it can be applied to criminalize almost any speech. European countries have different understandings of what constitutes illegal hate speech. In Sweden, an artist was convicted to six months in prison for ”racist and offensive” posters exhibited in a private art gallery; the same posters were freely exhibited in Denmark. A Swedish pastor was given a one-month suspended prison sentence for saying homosexuality is a tumour on society. That wouldn’t necessarily be the case in other European countries. Hizb-ut-Tahrir, an Islamist organization committed to the non-violent establishment of a global caliphate, is banned in Germany but not in Denmark. One man’s hate speech is another man’s poetry, to paraphrase Supreme Court Justice John Marshall Harlan II. What is an unacceptable hateful expression to some may sound like a perfectly legitimate opinion to somebody else.

All human-beings are biased at some level or another. We all know the emotion of hate or serious dislike of something or somebody. If a society really wants to criminalize any expression of hate it would have to ban a lot of speech. That’s not the case. Europe is very selective in its approach to hate speech. Some expressions of bias are treated as criminal offenses, others are not. This indicates there is acceptable and unacceptable hate speech. It’s okay to mock Christians but not to ridicule Islam. There is no equality before the law when it comes to hate speech.

Hate speech laws seem to be a tool to enforce social norms as Robert Post, a US expert on the First Amendment, has observed. This is problematic in a culturally and socially diverse society where individuals and groups subscribe to different norms. One would assume that the more diverse a society is the more diverse ways people will find to express themselves, i.e. a multicultural society needs more freedom of speech than a monocultural one. 

Historically hate speech laws and laws criminalizing dissemination of false information are being used in unfree societies to silence political opponents and persecute minorities. But even in Italy, a European democracy, the country’s antitrust chief Giovanni Pitruzella wants to criminalize fake news in order to weaken his political opponents on the left and right.

Said Pitruzella to Financial Times: ”Post-truth in politics is one of the drivers of populism, and it is one of the threats to our democracies.”.

As Brendan O’Neill, editor of Spiked puts it:

By its very definition free speech must include hate speech. Speech must always be free, for two reasons: everyone must be free to express what they feel, and everyone else must have the right to decide for themselves whether those expressions are good or bad. When the EU, social-media corporations and others seek to make that decision for us, and squash ideas they think we find shocking, they reduce us to the level of children. That is censorship’s greatest crime: it infantilises us. Let us now reassert our adulthood, our autonomy, and tell them: Do not presume to censor anything on our behalf. We can think for ourselves.

Indeed. Unfortunately, Europe is moving in a different direction with an increasingly powerful Germany imposing its standards of militant democracy on all of Europe.