Social media platforms may have once been praised as an inherently democratizing force, but in recent years they’ve gained more notoriety for the hate and harassment propogated on their networks. In response, the German government has taken the most decisive action of any democracy yet. In April 2017, the German cabinet passed new legislation on hate speech that the German Bundestag is scheduled to adopt in the summer. The law enables Germany to fine social media companies up to 50 million euros ($55 million) for not reacting swiftly enough to reports of illegal content or hate speech.

The law has an aptly German name Netzwerkdurchsetzungsgesetz, or Network Enforcement Law. But its main target is U.S. tech giants, which provide the main social media networks in Germany. The clash between U.S. social media companies and the German government is about more than deleting hateful online comments. It is a fight about how much free speech a democracy can take.

PLATFORMS FOR HATE

U.S. companies dominate Internet usage in Germany. With the exception of Xing (the German equivalent of LinkedIn), all major social media channels used by Germans are American. Twenty-eight million Germans have a Facebook account, and Google has nearly a 95 percent market share in search in Germany (compared to a 89 percent market share worldwide). Many Germans clearly appreciate U.S. innovation and the enormously powerful digital companies it has produced. But the nation’s lawmakers, particularly those in the Social Democratic Party (SPD), have become increasingly frustrated with these companies’ reluctance to comply with German law restricting seditious and defamatory speech.

German lawmakers have become increasingly frustrated with social media companies’ reluctance to comply with German law restricting seditious and defamatory speech.

Officials had already been working for several years to push U.S. social media companies to remove hate speech from their platforms when users complain, but their frustrations and fears grew after the 2016 U.S. election. Facebook, Google, and Twitter had agreed in December 2015 to remove such content within 24 hours of its being reported. But a study in early 2017 found too little improvement. YouTube had deleted 90 percent of criminal content within the timespan allotted. Facebook deleted 39 percent, and Twitter only one percent. From the German government’s point of view, voluntary agreements do not suffice to protect German democracy from hate speech. Only legislation can do that.

The new law applies to social media platforms with over two million users and imposes large fines if they do not delete posts contravening hate speech law within 24 hours of receiving a complaint. In response, a broad opposition coalition swiftly emerged. Although the law excludes journalistic platforms where someone is already accountable for content, such as online newspapers, the German Journalists Association joined civil rights activists, academics, and lawyers in signing a joint statement warning that the law “jeopardizes the core principles of free expression.” In addition, the Global Network Initiative (GNI) an international coalition of tech companies, civil society groups, investors, and academics asserted that the law “poses a threat to open and democratic discourse.” These groups worry that the law might lead to broad censorship of the Internet and create a precedent for more authoritarian regimes to further restrict free speech on the Web.

Responses to the law have also highlighted the new problems of juridical accountability that global tech companies pose. Groups such as Wikimedia Deutschland, the Internet Society, and the Federal Association of German Startups have collectively condemned what they see as the legislation’s privatization of law enforcement. They believe that courts, rather than social media companies, should continue to determine what speech contravenes German law. But this misses a more fundamental problem. It is currently unclear which courts hold jurisdiction over companies such as Facebook. In 2016, a court in Hamburg denied a complaint filed by the German lawyer Chan-jo Jun against Facebook because the company’s European operations are headquartered in Ireland. The new law thus requires each social media platform to designate a legal entity responsible for the social network in Germany.

LIMIT SPEECH TO PROTECT DEMOCRACY?

German politicians have long believed in limiting free speech. For U.S. free-speech advocates, this approach is antithetical to democracy itself. Facebook and media associations have highlighted the danger that less democratic countries might follow Germany’s approach. But, in a way, social media companies have brought this law upon themselves by failing to understand the historical reasons why the German definition of free speech is so different than the American one.

German politicians have long believed in limiting free speech.

Created in 1949, the West German federal constitution, also known as the Basic Law or Grundgesetz, contained a central paradox. Many West German politicians—conservatives and social democrats alike—believed in a “militant democracy,” one where free speech could be constrained to protect democratic norms. The concept was strongly promoted by Karl Loewenstein, an émigré from the Weimar Republic to the United States whose writings were foundational for West German thinking about democracy. Loewenstein thought democracies sometimes had to restrict freedom of expression and assembly to defend themselves against extremists. Essentially, democrats had to use undemocratic means to protect democracy. Article 18 of the constitution states that anyone abusing rights like freedom of speech to undermine a free democratic order might forfeit those basic rights. As Dartmouth associate professor of history Udi Greenberg has put it, “curbing rights became synonymous with the democratic order.”

Facebook Founder and CEO Mark Zuckerberg waves as he leaves the stage during the annual Facebook F8 developers conference in San Jose, California, April 2017. Stephen Lam / REUTERS

West Germany was the only country in postwar Europe to ban both nationalist parties and the Communist Party in the early 1950s. The state also secretly constrained the free movement of information to keep the Federal Republic “safe for democracy” from both fascists and Communists. In the 1950s and early 1960s, the West German state tapped hundreds of telephones and telegraph lines and opened thousands of letters sent from East Germany. From 1950 until a thaw in East-West relations in September 1971 (known as Ostpolitik), the West German domestic intelligence agency coordinated the censorship of up to 17.2 million pieces each year of publications it deemed seditious. These practices subsided substantially after the Spiegel affair in the early 1960s, when federal authorities arrested several journalists and occupied the magazine’s headquarters for a month over an article with details about West Germany’s defense forces that were allegedly state secrets. Public protests and political outrage over the harshest actions against journalists in the postwar period led to the collapse of the government coalition. Still, intelligence agencies continued to check around 1.6 million letters per year sent from East Germany even after 1971. Many files on this remain classified, so the full extent of surveillance practices remains unknown. Today’s German law retains limits to free speech, particularly when that speech incites hate or valorizes National Socialism. It is thus perfectly legitimate for German Justice Minister Heiko Maas to say that “freedom of speech has boundaries.”

The United States, on the other hand, has established a far more permissive legal framework for freedom of speech. An 1877 U.S. Supreme Court case extended Fourth Amendment protection against unreasonable search and seizure of letters and packages. The nonpartisan American Civil Liberties Union (ACLU) won a case in 1978 defending the constitutional rights of a Nazi group to march through a Chicago suburb housing many Holocaust survivors. The organization’s website declares proudly that “many now consider this one of the ACLU’s finest hours.”

Americans generally valorize the First Amendment of the U.S. Constitution as protecting freedom of speech without limits. Of course, U.S. attitudes to free speech have also evolved over time. The Supreme Court’s 2010 Citizens United v. Federal Election Commissiondecision, for example, seemed to many liberals to be an overextension of free speech to corporations. Broader U.S. debates have moved beyond arguing over the right to say something. Instead, the focus has shifted to newer, more subtle threats to the First Amendment tied to the new digital landscape. Associate professor at the University of North Carolina Zeynep Tufekci, for example, has suggested that harassment on Twitter might contravene the right to freedom of assembly by forcing certain types of people to leave the platform.

Political scientists and constitutional legal scholars still debate vigorously whether militant democracy works or is even legitimate. But the truth is that no country has completely free speech. Many contemporary democracies restrict rights and freedoms; Giovanni Capoccia, a political science professor at the University of Oxford, has argued that interwar democracies such as Belgium and Finland defended themselves against right- and left-wing extremism in part by restricting the rights of extremist groups. Even the United States has drawn boundaries for free speech, aggressively prosecuting anyone who spreads child pornography, for example. In fact, German officials have argued that social media companies already have the ability to swiftly delete hate speech because U.S. law had previously pushed them to develop techniques to detect and delete nudity.

Ironically, Facebook has recently been forced to recognize that Germany has a point. Online speech does need monitoring. After multiple incidents of shootings captured on Facebook Live, the company hired 3,000 compliance officers to monitor the feature for murders and suicides. This is a larger staff than the newsrooms of The New York Times and The Washington Post combined. Facebook also plans to have over 700 people reviewing content in Berlin by the end of 2017.

Maas aims to expand Germany’s approach to all of Europe, probably by introducing similar legislation in Brussels. With Emmanuel Macron as France’s newly elected president, Maas might succeed. Macron said during his campaign that he wanted to stop fake news and “regulate the Internet because today certain players are activists and have a very important role in the campaign.” The new German law is about more than fighting fake news. It is about finding the boundaries of free speech that best protect democracy. These are big questions, and the answers are not as clear as some might like.