This week, Germany launched a major crackdown on free expression. In 36 simultaneous raids across multiple states, German authorities sought evidence for speech-related criminal offenses based on things people posted on the Internet.
Most of these offenses come under incitement to racial hatred laws. That might sound good to some, but it isn’t.
There’s a major difference between U.S. and German incitement laws. U.S. law — at federal and state levels — criminalizes only incitement that is designed to foster imminent unlawful violence. The incitement must also be likely to lead to unlawful violence. This three-prong test means that saying “I [expletive] hate [racial/religious/social group] and think they should all burn,” for example, is not illegal in America.
And Americans take that for granted. But such postings would be illegal in Germany and in much of Europe.
In the U.K., the Public Order Act mandates that, “A person is guilty of an offense if he uses threatening [or abusive] words or behavior … within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.” Importantly, proven intention and actual harm are not necessary for conviction. It is enough that the speech possibly alarmed someone nearby.
Consider what impact that law might have on the willingness of individuals to discuss sensitive issues like immigration, or abortion, or terrorism? It is a recipe for chilled speech.
Amazingly, however, Germany takes things further, proactively punishing speech that might feasibly upset someone on the Internet. Which, if you’ve ever been on the Internet, could be said of almost everything on it.
The head of Germany’s Federal Criminal Police Office, Holger Münch, explained the government’s position. “Our free society must not allow a climate of fear, threat, criminal violence and violence either on the street or on the Internet.” Again, think carefully on those words. Germany seeks not simply to punish offending speech, but to “not allow a climate” of offense.
To accomplish this objective, Germany isn’t simply arresting speakers, it is punishing the platforms of speech. As Germany’s Justice Minister, Heiko Mass, put it, “We need to increase the pressure on social media companies.” Mass is referring to a draft law that would impose $56 million fines on Facebook, Twitter and other social media companies, if they fail to remove offending speech within a short period. As I’ve noted, similar legislation is also being considered in Britain.
There’s an immensely pathetic quality to this authoritarianism. Such coordinated efficiency and absent restraint raises troubling parallels with another era in German history.