Over the past month, the left-leaning British newspaper The Guardian has published at least three editorials, including one by an in-house columnist, calling for the arrest of Elon Musk.
Jonathan FriedlandFormer Twitter VP Bruce Daisleyand more recently from former U.S. Secretary of Labor. Robert Reich — simply operating publishing platform “X” in compliance with US law.
It’s worth mentioning that X is not the first open access publishing platform to follow U.S. content moderation rules rather than foreign ones, and it won’t be the last.
Skeptics of the “rise of the far-right” in Europe counterintuitively argue that the answer to this demon is to give the state broad powers of censorship.
US regulation of publishing platforms is guided by two rules. First, the First Amendment to the US Constitution, which provides for the near-absolute right of Americans to peacefully express any opinion they wish on virtually any matter of public importance and to operate the publishing platforms that carry those opinions. Second, Section 230 of the Communications Decency Act, which codifies at the federal level the judge-created First Amendment principle that publishers cannot be held liable for speech of which they have no prior knowledge.
Musk is a controversial figure, but we can all agree that he is an American. This means that, unlike someone like Pavel Durov, Musk has the option of staying in the US, using his virtually unlimited wealth to assert freedom of speech abroad, and taking refuge behind the solid shield of the US Constitution. No nation on earth, not even Brazil, the European Union, or the UK combined, can stop the US, or, for that matter, if Musk exercises his US citizenship.
In a world where the most powerful country with the largest nuclear arsenal guarantees its citizens the right to host, transmit, or receive any political ideas they wish, even from abroad, the rest of the world needs to get used to the idea that Americans will always create a space for free speech online, and that no legislative or judicial intervention by any foreign power can stop it. If Elon and X don't do it, some other company will, and in fact many other smaller companies already do. What European commentators want is for tech companies to band together and eliminate American-style free speech online once and for all. This will never happen as long as America exists and there is a market demand for free speech. As long as Americans exist, they will not comply.
If the rest of the world gets this memo, non-U.S. officials will have three options: (a) punish their own citizens for engaging in free speech, (b) institute domestic blocs that are only partially effective at denying their own citizens access to free speech, or (c) collectively punish or pressure innocent parties under their jurisdiction who have nothing to do with the speech in question, as when a country threatens to jail its “local representatives.”
hostage Many countries, including Brazil and Germany, are requiring American social media companies to hire this talent within their jurisdictions.
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Recent Enforcement Actions Brazil tried to do all three of these things against X. When X refused to appoint a local Brazilian agent to arrest them, they ordered X blocked at the ISP level, the Brazilian Supreme Court ordered the app removed from Google and Apple's app stores, threatened to fine users of the app approximately $8,000 per day, and even considered amending Brazilian law at one point. VPN apps banned In Japan (later WithdrawnShockingly, the court also ordered the seizure Given that Starlink and X are separate companies with no common ownership structure, a coherent legal system with even basic concepts of fairness and due process would refuse to hold one company or person liable for the tort or crime of another company or person that had nothing to do with the criminal conduct in question. All the two companies have in common is that, in Starlink's case, they are partially owned. Not majority owned — by one man.
Despite repeated attempts over the past 230-odd years, Europe has proven unable to stop Americans from being American. The question is how far Europe will go, what punishments they will impose, what privacy tools they will take away, and how much power they will give to states to prevent unsavory political ideas from spreading in their countries. Historically, Europe has used “all means” to punish political opponents, which means killing them.
US free speech laws are influenced by this history, including the 1693 case of William Anderton, a printer who was convicted of treason and executed for daring to state facts in a pamphlet calling the then King of England the “Prince of Orange.” Censorship-motivated crimes against humanity like these are why we have the First Amendment, and why Elon Musk will not be arrested for running his own platform in the US.
Those who doubt the “rise of the far right” in Europe counterintuitively suggest that the answer to this demon is to give sweeping censorship powers to the state. Suppressing dissent is not a surefire way to win political battles, because (a) it doesn’t silence American servers, and (b) it has failed catastrophically from the administration’s perspective.
Ancient RégimeIn apartheid-era South Africa, Weimar Republicand also in the former Soviet Union.
If European moderates are truly afraid that the far right will start winning elections, the wise thing to do is not to expand state power, but to create institutions and rules that act as a bulwark against it. In Europe's and the UK's case, this means repealing the relatively weak human rights protections of the European Convention on Human Rights, dismantling existing censorship laws, and replacing current rules with strong, inviolable American-style civil liberties as quickly as possible.
In the end, the worst-case scenario for incumbent governments and ideologies in weak democracies is not what happens if the far-right expresses itself non-violently on foreign servers, but what they will do with the powerful censorship laws that were once wielded out of anger when the far-right wins.
