The European Commission is circumventing bans on governmental censorship by asking communciations platforms like Facebook and Twitter to agree to “voluntary codes of conduct”, which all users would be held to. As these are private platforms, they are not subject to the laws that limit what governments can do, and can impose any terms and conditions they like. But when it’s not really an option to be on these platforms in someone’s daily life, doesn’t it leave a very sour taste when governments are starting to limit speech – limit legal speech – by calling it “voluntary agreements”?

Last year, social media giants Facebook, Twitter and others agreed to “voluntary regulation of speech” on its platforms, and recently, were lauded for significant progress in reducing the scope of free speech.

European politicians are circumventing every single constitutional safeguard and are finding ways to ban undesirable but legal speech, by calling it a “voluntary code of conduct” that happens to be in force in all major places where people hold their conversations. This should be cause for outrage all by itself, and there’s alarmingly little discussion about it: Europe is effectively outsourcing governmental censorship, thereby making it both legal and unaccountable.

It’s not enough that “if citizens don’t like the voluntary terms of service, they can go somewhere else”. That’s as theoretical as the US Senator saying earlier this year that “nobody has to use the Internet”. The statement may be true in the strictest mathematical sense — if somebody absolutely doesn’t want to use any aspect of the Internet, there’s no government agent there holding a gun to their head and forcing them to anyway — but in practice, you don’t get to choose where other people are, and in general, you need to interact with other people to get through your daily life. In practice, you need to be on one or more social media platforms.

The key here is that politicians should never, ever, get to say what speech is permitted and which isn’t: that effectively reverses the power structures in society by 180 degrees, as the politicians in power can effectively outlaw the discussion of any problem that democratic opponents are pointing at, and which they don’t want to be in focus, or even talked about. (This is not far fetched; it’s just the infamous 20 minutes into the future from where we stand today.)

At its core, this is the little-discussed conflict between private property and freedom of speech.

It used to be that free speech was exercised either in private or in public. Those were, in practice, the only two options: you were exercising free speech in your home, or in the public square (or at a restaurant, a café, or other location open to the public).

This has changed, dramatically: most of today’s speech takes place neither in private nor in public, but in somebody else’s private. Specifically, it takes place on social media servers that somebody else owns.

Therefore, we can observe that in practice, freedom of speech and property rights have now come at odds, in a way that the Enlightenment philosophers who laid down these rights absolutely did not foresee.

If we decide that free speech in practice — where a majority of people choose to speak — takes precedence, then property rights will be irreparably damaged, with unforeseeable consequences. If we decide that people’s free speech can be arbitrarily and unaccountably limited because it takes place on private servers, then free speech will be irreparably damaged, with equally unforeseeable consequences down the road.

There are no easy answers here. But why is nobody even asking these questions, instead just being gleefully happy at outsourced censorship to Facebook and Twitter?