Freedom of Expression

Europe reached the opposite conclusion from the same century, and it is not hard to see why. A continent that watched propaganda help engineer genocide came away convinced that some ideas are not harmless in the marketplace — that they can be sold, and that the selling has consequences. So the postwar European settlement built limits into the very definition of free expression, rather than treating those limits as exceptions grudgingly carved out.

Germany is the clearest case. Its Basic Law protects free expression, but the same constitutional order commits the state to a militant defense of democracy against its enemies. Displaying the swastika and other banned symbols is a crime. Volksverhetzung — incitement of the people, which covers denying or trivializing the Holocaust — carries prison sentences. France has its own Loi Gayssot, passed in 1990, criminalizing Holocaust denial, and a broader tradition of laws against public insult and incitement to hatred. These are not fringe statutes; they are enforced, and majorities in those countries support them.

Regimes are easy to compare in the abstract and painful to compare in the concrete. Every system, whatever its founding principle, runs into cases that strain it — and the strain reveals what the principle was really protecting. Incitement to violence is the first fault line. Almost everyone agrees that speech which functions as a trigger for imminent harm can be restrained; the fight is over how direct the link must be. The American test demands imminence and likelihood. Other systems accept a looser connection, which lets them act earlier and also lets them act more often.

Blasphemy is a second fault line, and it exposes how contingent these lines are. Most Western democracies abolished blasphemy offenses over the past few decades — Ireland only in 2018, by referendum. Elsewhere, insulting a religion remains a serious crime, sometimes a capital one. The publication of cartoons of the Prophet Muhammad, and the murders that followed at Charlie Hebdo in 2015, forced even the most speech-protective societies to ask an uncomfortable question: whether a right that cannot be exercised without a bodyguard is still, in practice, a right.

For two centuries the entire quarrel assumed one thing: that the line was drawn by the state. Constitutions constrain governments, and the First Amendment binds Congress, not a person or a company. But most speech today does not happen in a public square or a printed pamphlet. It happens on a handful of privately owned platforms, and those platforms are not bound by any constitution. They write their own rules, enforce them at a scale no court could manage, and owe the results to shareholders rather than to voters.

This is the quiet revolution in where the line falls. When a company removes a post, suspends an account, or reduces the reach of a video, it is drawing a speech line — but it is doing so as a private actor exercising its own rights, not as a government subject to a bill of rights. In the United States that distinction has enormous consequences: the platforms can moderate far more aggressively than the state ever could, and users have no constitutional claim against them. A statute passed in 1996, known as Section 230, gave the platforms broad immunity for what users post while leaving them free to moderate as they see fit — an arrangement both American parties now attack, for opposite reasons.

Gregory Lee Johnson won his case because a court decided that even a burning flag was an idea, and that the government could not silence an idea merely for being hateful. That ruling still stands, and it still marks the far edge of how much offense a democracy can be asked to tolerate. But a flag burned on courthouse steps in 1989 reached whoever happened to be standing there. The same act, filmed and posted today, reaches the world only if a moderation system lets it through — and that system answers to no First Amendment.