When is Free Speech Not Always So Free?

During the dark days of the Warsaw Pact and Soviet domination of Eastern Europe, free speech advocates like Vaclav Havel were harassed, prosecuted and jailed for fighting for an individual’s rights to voice their views openly. As Canadian Prime Minister Mark Carney so ably quoted in his now-famous Davos comments, Havel was compelled to synthesize his thoughts into a seminal essay called the ‘Power of the Powerless’ which has served not only as a clarion call for the non-policing and freedom of expression but for standing up against pervasive state tyranny.

In 1973 then Assistant for National Security affairs Henry Kissinger made the observation that “our values, our goals, and our basic interests are most closely identified with those of Europe” in what became known as his ‘Year of Europe’ speech. Indeed, while perhaps Kissinger’s remarks were accurate when taken in the context of Soviet repression and a shared continental commitment to containing the threat, the transatlantic consensus he described has since appeared to have become frayed to the point where the question could be posed about if some East Asian countries have supplanted Europe’s place as free-speech protectors?

In 2023, over 12,000 people were arrested in the UK under Section 127 of the Communications Act 2003 and Section 1 of the Malicious Communications Act 1988. This amounts to just over thirty arrests per day across 37 separate police forces - a 58 percent increase relative to pre-pandemic arrests in 2019.

An example: last September, five armed British police officers stood in London’s Heathrow airport, waiting for the arrival of an Irish comedian’s flight from Arizona with strict orders to arrest him upon his entry into the United Kingdom. The offense? Three posts on X, written months earlier from his home in the U.S. He was searched, interrogated, and hospitalized from the stress of the ordeal before being released on bail. He was barred from posting again until his case was resolved. In July of this year, the Metropolitan Police seemingly recognized the absurdity of his arrest, compensated him £25,000, albeit still refusing to acknowledge any unlawfulness with the arrest. Instead, the police apologized on account of “shortcomings in both the investigation, arrest and imposition of bail conditions.”

The UK is hardly alone in its zealous pursuit of policing speech. The European Union mandates that each of its member countries criminalize a form of hate speech, provided that it is public, intentional, and incites hatred against a group defined by race, color, religion, descent, or national or ethnic origin, punishable by at least one to three years of imprisonment.

In Germany, in June of last year, federal police carried out raids in which 170 homes were searched, and electronics were confiscated. These individuals were alleged to have posted comments on social media categorized either as hate speech or as insults directed at sitting politicians, the latter punishable under Article 188 of the Criminal Code by up to three years in prison. Former Vice Chancellor Robert Habeck filed complaints against over 800 citizens for insulting him online, something unthinkable to the average American. A 64-year-old pensioner was convicted for calling him “a complete idiot.” It’s not hard to see how overzealous and well-meaning intentions can translate into unnecessarily punitive action when states lose control of the original legislative intents, however laudable. These speech laws in Europe are going far beyond protecting marginalized groups from violence; they are now weaponized to remedy the bruised egos of politicians.

Now imagine the hue and cry from both those selfsame Eurozone politicos should President Donald Trump take steps to enact similar laws.

This is not to say the United States is unique in its First Amendment protections - there are American allies whose speech protections are much more closely aligned with theirs, but they are not found in Europe. Further east, Japan, South Korea, and Taiwan each enshrine free speech guarantees in language that closely resembles the First Amendment. In fact, they prohibit censorship and make no provision for group-based speech offenses. Japan’s Article 21, Korea’s Article 21, and Taiwan’s Article 11 share more with the U.S.’s First Amendment than anything currently in the EU framework.

None of these three countries produce the sort of prosecutions that European countries do, because their laws require speech to cause individual, identifiable harm rather than merely being vaguely “offensive.” Nonprofit organizations known for political advocacy surrounding issues of democracy, political freedom, and human rights specifically recognizes that such prosecutions are “uncommon” in Japan. While these countries are not as permissive as the United States, since all three maintain stronger defamation laws that, by nature, they require an actual victim of the defamation. European hate speech law, by contrast, requires neither an actual victim nor identifiable harm - an offense against a group is sufficient, regardless of whether anyone was concretely harmed. Japan’s framework goes further still - even where an individual was harmed, truth made in the public interest is an explicit statutory defense.

Why does any of this matter? Hate speech and defamation are both ethically and morally wrong, but the question of whether something is wrong and the question of whether the state should criminalize it are entirely different. Free societies are not just empowered by the notion of free speech; by any measure, you cannot call yourself a free society without it. Despite varying political administrations, the United States still recognizes freedom of speech as a prerequisite for the functioning of our society. As it turns out, so do our allies across the Pacific to a similar extent.

Through new measures like the EU’s Digital Services Act, American platforms like Meta, Google, and X are being disproportionately burdened by European content standards — standards which criminalize speech that would be constitutionally protected in the U.S, and are increasingly applied to American platforms without American voters’ consent. Stanford’s Center for Internet and Society has shown that the law does not legally extend to speech voiced in the U.S; instead, the more realistic risk is that platforms, facing the cost of maintaining separate rulebooks, will apply the EU’s stricter standard everywhere rather than only in Europe. Unfortunately, at the start of July, South Korea’s legislature has rammed through the Information and Communications Network Act, which introduces punitive damages for “discriminatory” statements or statements that cause injury to “public welfare.” South Korean experts have linked the passing of this law as inspired by Europe’s Digital Services Act. The law has provoked significant controversy, drawing opposition from politicians, civic groups, and the broader public, while a petition calling for its withdrawal amassed 140,000 signatures in a single month. It remains to be seen if this new South Korean law will remain in effect due to challenges being made to the Korean Constitutional Court.

As this debate intensifies, the U.S. may find that the democracies of Japan, Taiwan, and South Korea are more closely aligned with the American tradition of free expression than the governments and institutions of Brussels and London.

Havel would have plenty to say about that and the irony is he might have found himself falling afoul of the same countries which so lauded his campaigns for freedom of speech.