When the vice president of the United States accuses Europe of failing to protect free speech, the first reaction is to say he's a hypocrite. The White House where J.D. Vance serves is known for being a vigorous opponent of speech it doesn't like - expelling students for their political views, harassing critical media outlets, and pressuring universities. But being a hypocrite doesn't mean he's wrong. Europe does have a free speech problem.
The problem is not evenly distributed. By far the worst offender in the European Union is Hungary, where the government has suppressed or brought under its control most independent media outlets. (Interestingly, its pro-MAGA ruling party is not the target of Vance’s criticism.) Other notable offenders include Germany and Britain. Germany’s ban on Holocaust denial is understandable given its historical context, but its law against insulting politicians is a farce. It is used by the powerful without restraint. One former vice chancellor has filed hundreds of criminal complaints against citizens, including one who called him an “idiot.” Last month, the editor of a right-wing newspaper was given a large fine and seven months of suspended prison time for sharing a meme of a photomontage of the interior minister holding the sign “I hate freedom of thought.”

All European countries guarantee the right to freedom of expression. However, most also try to limit the harm they fear it could cause. This goes far beyond forms of speech that even classical liberals would find unacceptable - such as child pornography, leaking state secrets or deliberate incitement to physical violence. It often includes speech that hurts someone's feelings or that an official believes is incorrect.
In some countries, insulting a specific group is a criminal offense (for example, insulting the king in Spain; or various categories of people in Germany). In Britain, it is a crime to be “grossly offensive” online. Blasphemy laws still exist in more than a dozen European countries. The entire continent criminalizes “hate speech,” which is difficult to define precisely but is constantly expanding to include new groups. In Finland, it is illegal to insult religion, yet quoting Scripture can be risky: one MP was prosecuted for posting a Bible verse about homosexuality.
Unclear logic
Police in Britain are particularly vigilant about these issues. Officers spend thousands of hours reviewing potentially offensive posts and arrest an average of 30 people a day. Among those arrested were a man who raged on Facebook about immigration and a couple who criticized their daughter's primary school.
The aim of hate speech laws is to promote social harmony. However, there is little evidence that they actually work. Suppressing speech by threatening criminal charges often further fuels division. Populists score points precisely by claiming that “people should not say what they really think,” a view now shared by more than 40% of British and German citizens. Suspicions that the establishment is suppressing certain views are further reinforced by instances where media regulators show political bias. France, for example, fined a conservative TV channel 100.000 euros for calling abortion the leading cause of death in the world—a view widely held by opponents of abortion and from which the public must be protected, it seems. Internet safety laws, which impose heavy fines on social networks for tolerating illegal content, have encouraged platforms to remove content that is merely questionable, frustrating users whose posts are censored.
The entire continent criminalizes "hate speech," which is difficult to precisely define but is constantly expanding to encompass new groups.
The situation could get worse. Vaguely worded laws that give civil servants broad discretionary powers are an open invitation to abuse. Countries where such abuses are not yet commonplace should learn a lesson from the British example. The crackdown on free speech there was not planned from above, but developed when the police discovered that they really liked the power these laws gave them. It is much easier to arrest an Instagram user than a thief - the evidence is just a click away.
When a law prohibits insults, it also creates an incentive for people to claim to be offended—to use the police to silence critics or settle scores with neighbors. When some social classes are protected by hate speech laws and others are not, those who are not protected have an incentive to seek protection themselves. Thus, attempts to eliminate offensive words can create a “taboo spiral,” where more and more areas are declared off-limits. Soon, this begins to stifle public debate. It is difficult to have an open and honest conversation, say about immigration, if one side fears that expressing their views might bring the police to their door.
Because the populist right has been the most vocal proponent of this issue, many European liberals have become hesitant to defend free speech. This is wrong. Not only because laws that can silence one side can just as easily be used against the other – as seen in the draconian responses to the Gaza protests in Germany – but also because believing in free speech means defending speech we don’t like. If democracies fail to do so, they lose their credibility – to the benefit of autocracies like China and Russia, which are waging a global battle for soft power.
What should Europeans do, practically speaking? They should return to the old liberal ideas that noisy disagreement is better than enforced silence and that people should tolerate each other’s opinions. Societies have many ways to promote civility that don’t involve handcuffs—from social norms to rules prescribed by company personnel departments. Criminal sanctions should be rare, as is the case under the First Amendment to the U.S. Constitution. Defamation should be treated as a civil matter, with additional protections for criticizing those in power. Stalking and incitement to violence should certainly remain criminal offenses, but “hate speech” is such a vague term that it should be discarded.
Private ownership of digital platforms means different content moderation policies. Some will be stricter, others more liberal; users are free to choose the one that suits them best. Legally, online speech should be treated the same as offline speech. While there are obvious differences, such as the potential for dissemination online, police should generally stay away from private messages. Clearer and less sweeping laws would help all platforms focus on eliminating real threats and harassment.
Europeans have the right to say whatever they want about Mr. Vance. But they should not ignore his warning: when states gain too much power over speech, sooner or later they will use it.
Translation: NB
Bonus video:
