European crackdown on X and free speech deserves utter derision

When it conflicts with his own interests, X CEO Elon Musk's crusade for free speech sometimes runs into trouble .

Still, Musk at least deserves credit for earning the ire of European authoritarians seeking to apply European speech laws against American social media companies and their American users. Musk is foolish to repost the racist thug Tommy Robinson. The question is whether he should be prosecuted for that choice or others like it. I say he should not be. Many English and European Union politicians, journalists, and commentators say otherwise.

Consider the fire Musk took from European Union internal market commissioner Thierry Breton on Monday. Breton warned that Musk’s Monday evening interview with Republican presidential nominee Donald Trump might lead to a breach of EU laws. In turn, Breton said, Musk must ensure "all proportionate and effective mitigation measures are put in place regarding the amplification of harmful content in connection with relevant events, including live streaming, which, if unaddressed, might increase the risk profile of X and generate detrimental effects on civic discourse and public security."

Having demanded EU supervision of the U.S. presidential election, Breton added that EU legal "obligations apply without exceptions or discrimination to the moderation of the whole user community and content of X which is accessible to EU users." In essence, Musk must self-censor himself in deference to Breton and the EU or censor his interview with Trump for all EU users of X.

Considering the functional impracticality and political immorality of the latter option, Musk would do well to laugh in Breton’s face. He should charge the EU commissioner to enforce his words with action.

After all, though he is loath to admit it, Breton knows that his only effective recourse here is to censor X in Europe. And that recourse would carry significant political consequences. It would fuel already widespread perceptions in Europe that the EU is autocratic and detached from its voter base. Banning X would also risk EU legal challenges on the basis that any such ban would excessively conflict with the EU Constitution's Article 1, Section 2 protections for freedom of expression. Even if a ban was found compatible with the EU Constitution, it would risk a further breach of EU political and EU popular trust.

The odds are not in Breton's favor. As an extension, the commissioner also surely knows that Musk is highly unlikely to pay any significant fines or adopt any algorithm changes that the EU might demand. Breton must fear that the U.S. government would regard any such fine for what it is: just another tax under the EU's nakedly protectionist campaign against American technology companies. Both Democrats and Republicans are considering retaliation against this campaign. And while it's true that President Joe Biden's Inflation and Reduction Act brought unfair protectionism against Europe, the centrality of the U.S. technology industry to American (and global) economic growth means that Washington cannot tolerate foreign protectionist efforts to damage it.

Each time the EU pursues multibillion-dollar fines against U.S. technology companies, it increases the risk of major U.S. government countermeasures. And while X might be more of a social media company than a tech company, and Musk might not have many friends in Washington, the U.S. government will be wary of allowing the EU to set a new protectionist standard off X's back.

Yet Breton is hardly the only European politician going after X. He's only the tip of the iceberg.

Prominent British journalists and politicians are calling for criminal sanctions against Musk for his tolerance of legitimate if highly controversial public discourse.

In the aftermath of the recent riots in England , for example, numerous Britons have been convicted for X posts deemed to have breached English laws against incitement of racial hatred. American journalists favorably covering these convictions often fail to note that these laws do not require prosecutors to prove an intent to stir up racial hatred. The laws require only that racial hatred was likely to be stirred up. As with the deference of English laws to Russian proto-mafia figures such as Alisher Usmanov and Putin cronies such as Roman Abramovich — even though there is abundant evidence in its support, I could not write this about these figures were I located in Europe — the English legal approach on incitement is fundamentally incompatible with the American speech tradition.

In the United States, a finding of criminal incitement requires that the speaker sought lawlessness by his speech and that said speech would likely cause imminent lawlessness. These conditions reflect the Constitution and Judiciary's emphatic and enduring interest in protecting robust public discourse as far as feasible. In the U.S., whether it is far-left activists protesting on college campuses or far-right activists protesting in Charlottesville, purely hateful speech short of threats or violence is not and should never become sufficient grounds for criminal sanction. Why?

The answer to that question is perhaps best underlined in the tort case of Snyder v. Phelps.

That 2011 case involved religious fanatics hatefully protesting near the funeral of a young Marine who had died in Iraq. Explaining the court's overturning of a lawsuit by the Marine's family against the protesting church, Chief Justice John Roberts noted that "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

The problem with the English legal standards and EU and European national laws that join closely to them is that they put short term stability over longer term discourse and durable individual freedom. Moreover, the subjective nature of these standards invites political manipulation.

Take, for example, the recent X activity of Alistair Campbell, the former communications chief for former British Prime Minister Tony Blair. In a post last Friday, Campbell called on London's police force to investigate the journalist Douglas Murray in relation to an interview where Murray discussed his prediction of the recent riots in England in his 2017 book The Strange Death of Europe. It says much, and nothing good, that Campbell, now a prominent broadcaster, would so proudly call for criminal sanctions against someone who wrote perceptively on a matter of obvious public import.

Then there's Bruce Daisley, a British former executive at Twitter. Writing in the Guardian, he called for Musk's arrest, declaring, "In the U.S., there’s often a myopic sense that its freedoms don’t exist in the rest of the world, but in the U.K. 1998 Human Rights Act, article 10 enshrines freedom of speech." Then, in a triumph for irony, Daisley added that "critically, there is a recognition that free expression carries with it a duty of responsibility. The U.K. law requires that such free speech is not used to incite criminality or spread hatred."

Or how about Guardian columnist Jonathan Freedland, who also wants Musk to face criminal charges. Freedland's argument is at least partly designed as a comfort blanket for those on the European center-left who despise Musk. Freedland knows that European means of action against Musk are limited. Extradition requests or arrests-on-travel of U.S. persons for speech made in the U.S. would create a major rupture in trans-Atlantic relations and end otherwise mutually beneficial extradition treaties. More telling is Freedland's articulation of the central problem that he, Breton, Campbell and others have with X.

Namely, that the platform is just too popular in Europe for those who know better to kill it off. He basically admits as much, observing, "What’s the answer to this problem? Ideally, all politicians, journalists and influencers would defect en masse from X and use somewhere else as the global exchange for instant news and opinion." This leaves Freedland and his cohort to increasingly absurd dreaming. Freedland invents Harris's nonexistent unitary power to dispose of the First Amendment, for example. As he puts it, "If 2025 sees [U.K. Prime Minister Keir] Starmer sit down with a President Kamala Harris, [coercive government action against disinformation] should be one of the first items on the agenda."

At the heart of this controversy is a fundamental philosophical divergence. Put simply, where Europe gives preference to immediate social stability in governing speech, the U.S. protects individual liberty.

The American approach is manifestly superior to the European approach in moral, cultural, and social terms. Unlike speech laws in Europe, American speech laws encourage debates that go for the jugular of an issue. Equally important, they also allow for the venting of individual passion and fury. In contrast, European speech laws act to bottle up frustration, leading individuals to believe they do not have the right to speak freely on matters of urgent personal concern and public import.

This leads to overflows of extremist rage as seen in the recent English riots and triumph of far-right political parties in otherwise educated societies such as Germany. While European elites have an obsessive focus on the more unpleasant elements of Trump's character and Musk's sometimes idiotic reposts, they leave harder home truths unaddressed. The European establishment is quick to condemn American ignorance and racism, for example, but far less willing to explain why so few minorities hold high ranks in business, politics, and the military as compared to the U.S.

The terms "misinformation" and "disinformation" might be the rallying cries of the center-left intelligentsia. Indeed, that's ultimately the key problem here. Many on the right justifiably believe these terms are wielded not as tools of truth but rather as daggers to dissect only subjectively undesired speech. In a similar fashion, while hateful speech and Musk's promotion of racist thugs such as Tommy Robinson might be revolting to most of us, the restriction of this activity only fuels its metastases under the surface.

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Yes, of course it would be better if more X users showed more sense. Yes, of course it would be better if Musk read more about the issues he pontificates about rather than so easily flirting with ignorance.

But Europe is not going to succeed in bringing Musk and X to heel. Nor should it. And if European nations try to do so, by arresting Musk or any other American for their speech on American soil, the U.S. government should impose very high costs in response.