Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama

>> Eugene Volokh: Welcome to Free Speech Unmuted, a podcast put together by the Hoover Institution at Stanford University. I'm one of your co-hosts, Eugene Volokh. I'm a senior fellow at the Hoover Institution and professor emeritus at UCLA Law School. Our other co-host is Jane Bambauer, who is a professor of law and in the Communications Studies department at the University of Florida.

And we have a special guest today, Jacob Changama, who is a Danish lawyer by training and as a result, extremely knowledgeable about international free speech issues. He is the CEO of the Future of Free Speech. He's a research professor of political science at Vanderbilt. He's the author of Free Speech, A History From Socrates to Social Media and other works on Free Speech.

And he's a senior fellow at the foundation for Individual Rights and Expression. I'm delighted that we could have Jacob with us because he actually knows things that we don't or at least I don't, maybe Jane. Jane has hidden reservoirs here, but I've always recognized, this is a pretty big world out there.

The First Amendment extends over only a very small portion of the world's population. And while in some places, Russia, free speech. In other places, they do have reasonable understandings of free speech in many ways, ones that many people admire it even, and some argue should be preferred to the American approach.

But the devil's always in the details. And one interesting question is, how good are those? And before we even get to how good are those? What are those? What are the different rules in some Western democracies on free speech compared to the US? This is a very important question and one that, again, we're delighted to have Jacob to enlighten us on.

So, Jacob, let's start maybe with hate speech, because that's one of the things. Or maybe hate speech, as I always like to say, because who knows exactly what that is? But that's something that people often note is treated differently in some foreign democracies, in some other democracies in the US, and will be good to know.

How is it treated? Does it seem to. Does that approach seem to work well? What are its upsides? What are its downsides? So, Jacob, take it away, tell us. Tell us all about it. Well, not all about it. We only have 40 minutes. Tell us the key things about it.

>> Jacob Mchangama: Yeah. So a good place to start might be immediately after World War II, when the United Nations came together to draft not only the Universal Declaration of Human Rights, but also legally binding conventions that was supposed to sort of codify universal norms on free speech. And one of the major issues that was to be determined was the permissible limits on free speech.

And what you saw was that there was a very clear dividing line between the US And Western democracies on the one hand, and the Soviet bloc, led by the Soviet Union, on the other. And one of the major fault lines was whether hate speech should be prohibited. So at the time, Eleanor Roosevelt, was the first chairperson on the Commission on Human Rights and the US Ambassador to the UN, and she had a very almost free speech absolutist position.

So the first draft that she helped come up with was basically said that free speech should be guaranteed. There were no explicit limitations to free speech. On the other hand, the Soviet Union was adamant that not only should there be all kinds of limits to free speech, there should be a specific obligation to prohibit hate speech.

After all, they just fought a war against fascism. So why should fascists be allowed to spread propaganda for the very ideology that had just laid waste to much of Europe? The counterargument to that Eleanor Roosevelt, I think, was very prophetic about was that if you allow governments to restrict hate speech, you provide an excuse for them.

You legitimize their restrictions on free speech. And it just so happens that the Soviet definition of hate speech was taken almost copy-pasted verbatim from its 1936 constitution, which included a hate speech ban. And anyone who had followed Soviet affairs during the times of Stalin knows that free speech was not at the forefront.

And neither were minorities necessarily protected, that Stalin had all kinds of excuses to crack down on speech. But this was a very big and important moment when it came to shaping the norms. Initially, Roosevelt actually won out. So if you look at the Universal Declaration of Human Rights from 1948, there's no explicit obligation to prohibit hate speech.

Now, there are some other provisions that permit states to restrict free speech, but there's no explicit obligation. But then when it comes to the International Covenant on Civil and Political Rights that was adopted in 1966, the US lost that battle and Western democracy. So if you go to Article 20 of that convention, there's an explicit obligation for states to prohibit certain forms of incitement to hatred that can lead to discrimination, hostility, and violence.

And again, what you see there was that Western democracies were quite critical of that, but that the Soviet bloc was able to use, or at least to convince a lot of newly decolonized states. African states, for instance, saying, well, why you should be with us on this because you've actually suffered under racism.

Look at all these Western states who are talking a big thing about free speech, but they have actually used free speech restrictions to crack down on you whenever, when you have been opposed to colonialism. So that was a pretty powerful argument that the Soviets could rally, and ultimately free speech norms were shaped that included restrictions on free speech.

So that's one of the quirks of this history. But despite this reluctance on the part of many Western democracies, I think it's safe to say that hate speech prohibitions, even in criminal law, have become the norm everywhere else than the US. In fact, the European Union now has an obligation, so it's an obligation for all EU member states to criminalize certain forms of hate speech.

And what we've also seen is that there's been what you might call scope creep in hate speech norms. So thresholds have been lowered and more and more protected categories have generally been added. Most recently, for instance, gender identity is a norm that has been added. And we also see an increased focus on enforcement of hate speech bans in Western democracies, and in particular in Europe.

And I would as someone, who despite being European, has a more. Veneration for the US approach. I think it has led to a host of problems with unclarity, uncertainty and with, I think you might have coined this term, Eugene, censorship, envy, various groups sort of vying for protection and that sort of leads to the scope creep of these norms.

So that might be my very long initial remarks on this topic.

>> Eugene Volokh: So let's get some concrete examples. Yeah. Can you tell us how, both in theory and in practice, how is the prohibited hate speech defined in Europe? Has it been read very narrowly to apply, for example, only to incitement to violence or something along those lines, or has it applied more broadly?

>> Jacob Mchangama: Yeah, so it's definitely not limited to incitement violence. I think it's quite interesting to look at the period after October 7th, because what you've seen, especially in Germany, as you might imagine those, they have a battery of laws that we might broadly label hate speech, but which cover a number of different categories.

So one of them is sort of incitement to hatred, but they also cover the use of symbols of ban constitutional groups and so on. But what we see is that for instance, the phrase from the river to the sea, which has also been generated controversy on college campuses in the US has been, is criminalized.

So there was a decision earlier this year where there's a 22 year old Iranian German, she had led chants from the river to the sea at pro Palestinian demonstrations and she was convicted in Berlin for incitement to hatred for using this phrase. So that's a good example. And so this is not from the river to the sea.

And then sort of specifically in a context where that might be sort of using it in a Hamas context. We've even seen someone being arrested in Germany for having a placard that said from the river to the sea, we demand equality. And what we also see in Germany is that there's a big emphasis on cracking down on online speech, online hate speech.

So it is not uncommon for German police to show up at dawn rates in dwellings, private homes of people where they will then arrest them, confiscate their tablets, their devices, if they have written what is deemed to be hate speech online. Someone who recently felt this was a left wing American called C.J Hopkins, who moved to Germany 20 years ago because he felt that the atmosphere during the Bush presidency in the US was oppressive.

Now he has become a rather cantankerous critic of COVID policies and he published a book, self published a book where the COVID had a face mask with a barely visible swastika. And he was convicted for using an anti constitutional symbol under Germany's law. So those are sort of examples of people being convicted.

There's obviously also cases of people being convicted for what you might call hate speech on the basis of religion. So politicians who are critical of immigration. A very far reaching example was a French politician from Rasa Blement national, what you might call a populist party in France, who on his Facebook comment wrote something that was critical of immigration.

Some of his users wrote something that was deemed to be anti Muslim hate speech. And the politician was convicted for not moderating the content on his own Facebook page. So basically, held criminally liable for the comments of his users. So that shows you pretty wide ranging application.

>> Jane Bambauer: So I have a couple questions.

So what does it require to be incitement to hatred? Do you have to be advocating for some kind of political change? Or can a statement, even a factually accurate statement, for example the fact that if an immigrant had committed a crime, just a straight description of what had happened, could that qualify in itself based on anticipated reactions?

>> Jacob Mchangama: It depends on which country you're in. But certainly, if it's deemed to be set in a manner which is insulting or hateful, denigrating towards a group, then it doesn't require. So the standard under even though there's an explicit obligation to prohibit hate speech under the UN Convention, it at least says that it has to sort of create a risk of hostility, discrimination or violence.

That's not the standard in Europe. So the European Court of Human Rights, which has jurisdiction over 47 member states, including all EU member states, bit confusing. The European human rights system has set a pretty low threshold for when states can permissibly restrict free speech. So in some cases something that, which is deemed insulting can be sufficient.

And it has very clearly distanced itself from a US sort of a Brandenburg standard of where the threshold is. And in certain cases, when hate speech is seen to rise to a level where it's deemed to undermine the other values of the Human Rights Convention, the court will not even go into any balancing act.

It will, it will say that, you know, the application is inadmissible in and of itself. So that that's for instance a category like Holocaust denial or Nazism, for instance. But it has also been applied in cases on homophobic speech. And the case law from the European Court of Human Rights is not very clear.

It's quite confusing. It gives a lot of leeway and maneuver room for states and at the same time. You see, the European Union has is actually has brought a number of cases against member states for not doing enough to implement something called the Framework Decision on Combating Racism and Xenophobia, which obliges member states to criminalize hate speech.

So there's a very concerted effort by European institutions to do something about hate speech. The question, of course, I think you alluded to this, Eugene, is does this help because you can sort of understand the German position. The Nazis came into power through democratic means. And so there's this emphasis on what you might call militant democracy, coined by Karl Loewenstein, an immigrate from Nazi Germany, who wrote these two influential essays when he was at Columbia in the 30s about the importance the need for democracies to crack down on their enemies before they gained power.

That is very much the mainstream position in most European states and also European institutions. However, I do not think there's any evidence. That this is something that helps. So Germany has this Federal Office for the protection of the constitution and they publish these very elaborate reports on political extremism both from the right, the left, and religious groups.

And so Germany introduced this law in 2017, the NetzDG, which required social media platforms to remove manifestly illegal content within 24 hours or face fines of up to 50 million euros. So it didn't criminalize anything new, but it put an obligation on platforms to remove existing categories of illegal content, including various forms of hate speech.

But ever since 2018, every single year, there's been, according to this federal agency, an increase in the number of right-wing extremists, including right-wing extremists who are willing to use violence. And 2019, you saw some pretty horrific examples of deadly right-wing violence, so that suggests that this may not actually be as effective.

It's the same thing when you look at statistics from the European Union's fundamental right agency, you see almost every year they complain about an increase in hate speech and member states must do more. But despite this growth in various hate speech restrictions, there still seems to be an increase in hate speech.

But this doesn't prompt any reflection, I think. It's taken as a fact that hate speech restrictions is a necessary tool to combat this phenomenon.

>> Eugene Volokh: So this is tremendously interesting and important and we can spend a lot more time talking about this, about the hate speech in particular, but I wanted to step back a bit and see how this plays out with regard to other restrictions as well.

Because as I understand it, the European law in many respects is more speech restrictive as to other matters as well. So what about blasphemy, material that is not necessarily aimed at inciting religious hatred but that creates religious hostility, excuse me, religious offense, let's say. So under American law, at least since the 1950s, it has been clear that speech that is offensive to particular religious groups, even deliberately so, cannot be restricted on those grounds, what's the law in Europe and perhaps in some other countries?

>> Jacob Mchangama: Yeah, so here the record is more mixed. So until last year there was actually a movement where blasphemy laws were decriminalized in a number of European countries, so that a majority of EU member states no longer had blasphemy or religious offense laws. Now, there are still some on the books.

And the European Court of Human Rights in a number of cases has said that gratuitously offensive speech on religion can be restricted so long as the restrictions are proportionate and so on, there's a test. So that means that blasphemy bans are not per se impermissible under the European Conventions' protection of freedom of expression.

Unlike the position at the UN, at least sort of non-binding soft law resolutions have held for a while that blasphemy bans are incompatible with free speech protections at the UN level. But in Europe, the European Court of Human Rights in a number of cases have said that blasphemy laws can be upheld if they're sort of relatively narrow, if the speech is gratuitously offensive.

So this has been the case with one of them was an erotic film which showed a Christ figure engaged in sort of very sensual action with a nun. Another was one that poked fun of Christianity, one was a book that imputed certain erotic things to the Prophet Muhammad.

One was an Austrian politician who said that under current standards the Prophet Muhammad would be a pedophile because he allegedly consumed marriage with a girl who was nine years old. And she was fined under Austria's blasphemy or religious offense ban but she lost her case at the European Court of Human Rights.

Now, Denmark, my home country, I actually led a campaign to abolish all blasphemy ban back in 2017 when it had been revived by the prosecution for the first time since the 70s. But following a spate of Quran burnings by far right activists in Denmark, Denmark came under such immense pressure from a number of Muslim majorities states that our government did a U-turn.

And then they introduced a law which criminalized the improper treatment of sacred texts, basically a Quran burning ban in so many words. So that means that that really reversed a trend where Europe was at least moving towards the decriminalization of blasphemy bans, which I think is quite sad.

And that went hand in hand with efforts at the United nations where Muslim states for a very long time have worked to impose an international blasphemy ban under the guise of human rights language. And so that the Danish government's appeasement of these rather authoritarian states I think played into the hands of eroding international norms.

>> Eugene Volokh: Well, great summary, not a great result, but very much appreciate that. So another way in which European law is different from American law, I'm glad at least to hear that most European countries have rejected blasphemy laws. But that means quite a few, quite a few still have them.

And European law does not preclude that, and as you point out there's international pressure to impose more of them. So let's segue now into restrictions on misinformation, now of course, American law restricts one kind of misinformation, that's libel. That is to say, if you say false things about a particular person or sometimes even a business corporation or a nonprofit corporation and those damage that person or entity's reputation.

And you can show that they're, excuse me, and the plaintiff can show that the statements were said negligently or recklessly in some situations as required, then there could be liability. But as a general matter in American law, if you just make a false statement about the government or statement some believe is false about the government, about science, about history as part of public debate and you don't personalize it that way, that is generally speaking constitutionally protected.

Tell us how things are in Europe and other Western democracies if you want to.

>> Jacob Mchangama: Yeah, so I think laws against false information have long been treated as really this is what distinguishes open democracies from authoritarian states, right? Because if you go to If you go to the Cold War, you could be criminalized as dissidents for spreading false propaganda about the state.

And so it was quite well understood in many democracies that legislating the truth was a dangerous move. But there are ten or 11 EU member states that prohibit in some ways even criminalize various forms of false information. But there's not an EU instrument that does the same. I think attitudes have changed dramatically, especially after 2016.

So the US presidential election, which gave rise to what I like to call elite panic. This idea that Russian disinformation essentially decided the US election, I think most research since then has discredited that idea.

>> Jane Bambauer: Misinformation about misinformation, isn`t it?

>> Jacob Mchangama: Yes, exactly, so it's not that the Russians did not try to influence and did not spread actively disinformation and sometimes succeeded in getting people in the US to meet up and do protests.

But the idea that they had a substantial impact, I think the evidence for that is completely lacking. But since the fact that you can now reach an audience with mis and disinformation to a degree that you could not do in the age before social media. When you had gatekeepers in traditional media, that would maybe keep some of the worst conspiracy theories away, has changed governmental attitudes towards disinformation.

So one of the interesting instruments is the Digital Services Act from the European Union, which the European Union hopes to become sort of the global gold standard for platform regulation. And they're very large online platforms have an obligation to carry out the systemic risk assessments of their platforms.

And some of that relates to misinformation related to health, to elections, to other fundamental rights. So it's not exactly an obligation to delete misinformation. It's not illegal content as such defined under the Digital Services Act, but it certainly incentivizes governments to do something about it. And when you hear the statements coming out of European leaders, it's quite clear that dis and misinformation is something that they feel strongly should be tackled by platforms and even by government.

So France, for instance, introduced a law which allows judges to order social media platforms, for instance, to remove disinformation. I think the window is 60 days on either side of an election, for instance. And I think we've seen some of the same things with AI, deepfake laws in several states.

In the US a Californian law was recently enjoined, and there's not a lot of cases on this under the European Court of Human Rights, but in one case it has upheld a poll. There's a similar Polish election law which has been used in a number of times and sometimes the European Court of Human Rights has said this violates free speech.

But it basically says that if someone during an election spreads disinformation, you can also order that person to issue an apology, to retract it and so on. And in one case, the European Court of Human Rights said that a newspaper that had criticized a mayor had overstepped the lines on free speech.

But I think here in Europe it's more sort of heavy incentivizing, you might call it structural jawboning rather than outright prohibition on dis and misinformation that dominates the sphere. It's treated differently from hate speech, which is a category which is basically something which can be criminalized. So there's more apprehension about criminalizing mis and disinformation for good reasons.

>> Jane Bambauer: Does the Digital Services Act, am I remembering right that in addition to these sort of impact assessments or system wide kind of analyses, social media companies they were also responsible for removing illegal content? Yeah, so that brings us back to this kind of vagueness in certain terms.

I mean, not only things like hate speech or incitement to hate, but I mean even something like defamation, which in the US is recognized as a form of illegal speech. I think we were careful not to impose liability or these types of duties on social media companies because of their incentives to over purge.

Do you anticipate that that's gonna be the reaction of social media companies?

>> Jacob Mchangama: Yes, I think that is a very real risk. So if we take a step back and talk about the NetzDG, the German law that was passed in 2017, it's now been repealed because the Digital Services Act harmonizes this area.

But we did a number of surveys, we found 23 laws around the world, so Russia, Iran, Venezuela, that essentially referenced the German law as a model for platform regulation. Of course they did censorship anyway, they would have done any but it basically gave them some legal cover to justify their actions.

And I think we'll see the same thing with the DSA and also I mentioned that the DSA does not prohibit dis and misinformation. But the fact that there are 11 countries that have some form of laws against disinformation means that that becomes illegal content which they are under an obligation platforms to do something about.

And there might be scenarios where content that is illegal in one state can also be actionable in other states. So there's a lot of uncertainty about the scope and effect of the DSA, I think at this point, though, I would say the overwhelming sense in Europe is that it is a positive thing.

It's something I think the European Union is very proud of. To be fair, there's not a lot of pushback against hate speech laws in Europe in the ways that I suspect that would be if something similar happened in the US. It also has to be said that I've seen a lot of prominent US politicians, especially Democrats, sort of being almost envious of the Digital Services Act.

And also a lot of law professors in the US sort of saying, the Europeans are the adults in the room. They're doing something about this informational disorder and tamping down on all the horrible. Things in the online space that we just can't do in the US because of our commitment to these deeply irresponsible twin pillars of free speech in the First Amendment and Section 230.

>> Eugene Volokh: So we've covered three categories of speech, hate speech, blasphemy and misinformation. There's of course, a lot more we could be talking about, but I'm wondering if in the closing minutes we can just sort of step back. Here's my tentative sense of the matter. So we have a democracy where people are allowed to debate public issues and you know, you can like or dislike the results, think it could be improved in various ways or not.

But it's quite clear that free speech is necessary for our democracy to function. And I take it Europeans and Canadians and Australians would say, yeah, we do too, that and indeed people who are in office routinely get thrown out of office in those countries and various public issues are discussed.

And there is essentially a form of referendum, sometimes perhaps literally referenda and sometimes just elections that play the role of a referenda on important issues. If they didn't have free speech at all, or if they had massive restrictions on free speech, I don't think they would function as democracies, but they do.

And it's an approach that I'm happy to dip my hand. I like ours better than theirs, but it is a different approach. So let's just step back and ask, what do you think? And it's partly as a scholar, but partly as a European, partly as someone who has lived, I think, the great bulk of his life in Europe.

What is your sense of the difference in European democracies and American democracies? And what somebody might say, they're a difference that may be linked to these different speech regimes. Obviously, there are other differences in play as well. One might say, well, there really is. It really is harder to debate important issues there than here or there really are more anti democratic elements in that endure as a result.

Alternatively, you might say, you know, on balance it's sort of a happier, more pleasant kind of public debate that brings the country closer and that maybe that's, that's a worthwhile trade off. What's been your sense of the big picture, of how all of these kinds of free speech issues fit into the question of what kind of country we're going to have?

>> Jacob Mchangama: Yeah, I think what you sketched out in the beginning is probably the best argument for hate speech bands is that it's a very pragmatic argument. You might say, yes, there, inevitably there'll be hard cases in some, in some cases there might be people who are prosecuted, even convicted, who say things that, really should not be criminalized.

But on the other hand, we are very successful democracies on some parameters. Some European countries do better than the U.S. so our system is not perfect, but we try to strike different balances and we just strike it differently from the US, but I think obviously the fact that totalitarianism played out on European soil is a strong argument for that.

Even though I don't share the analysis. There's actually a very important quirk here. I don't know if we have time to, but up until 1960, Germany did not have specific hate speech ban. Sothey would, they would try to criminalize it under sort of different parts of their criminal law, but they didn't have sort of a hate speech ban as we recognize it now.

But in 1959, the synagogue in Cologne on Christmas Day was defaced by swastikas and this swastika epidemic spread across the world, even to the US even to Tel Aviv. And that became the impetus. So you can imagine in 1959 it's quite embarrassing for the western German government to have research and Nazism on its soil and so they hastily put together a hate speech ban.

It also became the impetus behind another UN convention which obliges member states to criminalize racist hate speech. Now The problem with this is that the so called swastika epidemic was a KGB active measures campaign. So it was not organic Nazism. It was basically the KGB and its legendary operative, an Armenian called Ivan Argajans, who was the first director of their active measures department, who basically used what you might call genuine fake news to entice democracies to criminalize hate speech.

So, I think that's an interesting backstory, but it's also true. I think if you go back to the mid-50s, I would say free speech was better protected in Denmark than in the US not legally speaking, because the Danish constitution only prohibits pre publication censorship, prior restraints. But just because we had a political culture that was quite tolerant, the communists could be in government, whereas in the US under the Smith act, you'd go to prison, right?

And if you were in the south until a number of the landmark decisions that really expanded the First Amendment in the late 50s and the 60s, you'd be imprisoned under ridiculous libel or you'd be held liable for libel under ridiculous suit. You'd be arrested for breach of public peace even though you did peaceful protest and so on.

None of that happened in Denmark. So you should also not forget that even though the First Amendment is drafted in quite absolutist language, it's not the case that the current free speech landscape in the US was sort of baked in. That understanding was baked in from the beginning.

You only have to go to seven years after the ratification of the First Amendment to see the founding generation prosecute each other under the Sedition Act, right. And you have very respectful judge is Robert H Jackson, U.S. chief prosecutor at Nuremberg. His understanding of where the limits should be drawn was very aligned with current European standards, right.

He said, you know, if, if we give too much protection to the, the Bill of Rights, especially free speech, the Constitution will be turned into a suicide pact. And that's something that I think I see a lot of us professors today see so on. But I think the interesting thing in that decision in Terminello is that Terminiello upholding basically the First Amendment Rights of a fascist priest is used in Edwards vs South Carolina to protect the rights of African American peaceful protesters.

So rather than turn into a suicide pact that protects fascists, who wants to do away with constitution, it protected a very vulnerable, really persecuted minority in claiming their rights. And that's basically why I believe so strongly in the American model, because in my view it's based on what you might call the lived experience of this country rather than any sort of abstract libertarian fantasies.

It really has been pivotal in the advancement of social movements that today most Americans agree have been essentially to, move this country closer to the very high ideals that it was founded upon and which for a very large part of its history it has not been good at living up to.

>> Eugene Volokh: Well, that-

>> Jane Bambauer: I think that's a perfect place to stop, isn't it?

>> Eugene Volokh: I was just about to say that's an excellent summary to excellent remarks. More broadly, I've learned a great deal from Jacob's work, especially I highly recommend his history of free speech work, we're going to include a link in the show notes.

And one of the interesting things about his history of free speech is that one sees these arguments about misinformation, for example, coming up over and over again. And indeed it sounds in principle like it's good to restrict misinformation, who wants misinformation? Well, unsurprisingly, it becomes the favorite tool of oppressive governments to say, well, yes, yes, of course, we're not trying to oppress anyone, we're just trying to protect our citizens from misinformation.

So understanding the history of free speech generally, and as Jacob points out, the history of actual free speech law in America, I think is very important to helping us get a better sense of these debates. So, Jacob, thank you so much for coming by and very, very much appreciate your work.

More generally, I look forward to our paths crossing again on many occasions.

>> Jacob Mchangama: Thank you for having me.

>> Eugene Volokh: Jane, great being on the podcast with you as well as always, and to our viewers. See you, folks. Well, we won't see you. You'll see us. See us again soon.

>> Jane Bambauer: Thanks.

>> Jacob Mchangama: Thank you so much.

>> Jane Bambauer: Bye, everyone.

>> Eugene Volokh: Bye, everyone.

>> Jacob Mchangama: Bye.