published Mar 19th 2017, 9:33 am, by Noah Feldman

On free speech, the U.S. and Europe have also gone different ways. The German minister of justice threatened Facebook, Twitter and Alphabet Inc.’s Google search back in December, telling them they needed to move faster and better to remove hateful posts that violate German law. Now the minister is proposing a new law in fulfillment of the threat.

To Americans, the idea of the government forcing social media to censor posts may seem to resemble China’s internet censorship. Such legislation wouldn’t just be unconstitutional; it would be almost unthinkable.

Facebook and Twitter are private actors who could censor voluntarily under the Constitution — indeed, their voluntary censorship would itself be protected speech.

But the government can’t order private censorship any more than it can censor directly. That’s because U.S. constitutional tradition treats hate speech as the advocacy of racist or sexist ideas. They may be repellent, but because they count as ideas, they get full First Amendment protection.

Hate speech can only be banned in the U.S. if it is intended to incite imminent violence and is actually likely to do so. This permissive U.S. attitude is highly unusual. Europeans don’t consider hate speech to be valuable public discourse, and reserve the right to ban it. They consider hate speech to degrade from equal citizenship and participation. Racism isn’t an idea; it’s a form of discrimination.

The underlying philosophical difference here is about the right of the individual to self-expression. Americans value that classic liberal right very highly — so highly that we tolerate speech that might make others less equal.

Europeans value the democratic collective and the capacity of all citizens to participate fully in it — so much that they are willing to limit individual rights.

The parallels between the hijab case and the hate speech cases are thus very real. Individual rights win in the U.S. Equality and the group win in Europe.

At one time, the different views existed in splendid isolation. Now, the internet and globalization are bringing them into conflict.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem — and What We Should Do About It.”
To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net
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