There is little over the Atlantic that bears much of a resemblance to the First Amendment, an absence (envied, sadly, by quite a few over here) that has often been exploited by a European political establishment that shows every sign of willingness to exploit the often deliberately exaggerated fear of ‘fake news’, a phenomenon—such as it is—far more healthily tackled by argument than by a gag, as a new excuse for shutting down speech of which it disapproves.


Here’s France’s President Macron, a defender, we are often told, of Europe’s liberal order.

The Guardian:

In his new year’s speech to journalists at the Élysée palace, Macron said he would shortly present the new law in order to fight the spread of fake news, which he said threatened liberal democracies…. For fake news published during election seasons, an emergency legal action could allow authorities to remove that content or even block the website, Macron said. “If we want to protect liberal democracies, we must be strong and have clear rules,” he added.


Quite who decides what is—or is not—fake news is an interesting question: Quis custodiet ipsos custodes and all that.

What makes it even more ‘interesting’ is the notion that news defined as fake should be suppressed with particular speed during an election campaign that may be over before the decision of the relevant authorities—whoever they may be—can be subjected to proper review. That could be…convenient.

Reuters:

“Only authoritarian regimes try to control what the truth is,” said senior conservative senator Bruno Retailleau. Freedom of expression carries risks, but that’s better “than the temptation to control minds,” he said.



The same Reuters report also notes that the EU Commission is looking at how to deal with fake news. Writing in Euractiv, Aline Robert and Catherine Stupp argue that Macron’s speech might encourage the Brussels bureaucracy to propose tougher measures than might otherwise have been the case.

Censors stick together.

Meanwhile, Reuters (my emphasis added):

A German satirical magazine’s Twitter account was blocked after it parodied anti-Muslim comments, the publication said on Wednesday, in what the national journalists association said showed the downside of a new law against online hate speech. Titanic magazine was mocking Beatrix von Storch, a member of the right-wing Alternative for Germany (AfD) party, who accused police of trying “to appease the barbaric, Muslim, rapist hordes of men” by putting out a tweet in Arabic. Twitter briefly suspended her account and prosecutors are examining if her comments amount to incitement to hatred. Titanic magazine published its send-up late on Tuesday, in a tweet purporting to be from von Storch to the police, saying: “The last thing that I want is mollified barbarian, Muslim, gang-raping hordes of men.” Titanic said on Wednesday its Twitter account had been blocked over the message, which it assumed was a result of a law that came into full force on Jan. 1 that can impose fines of up to 50 million euros ($60 million) on social media sites that fail to remove hate speech [and fake news] promptly. “We are shocked,” Titanic editor Tim Wolff said on the magazine’s website, adding that Chancellor Angela Merkel and Justice Minister Heiko Maas had promised that the new law would not have this kind of effect.


If Wolff was truly shocked, he is truly naïve. Merkel, another (supposed) champion of ‘liberal’ values, has been Germany’s Chancellor since 2005. That’s long enough for anyone paying any attention to realize that she is reflexively authoritarian and, when it suits her, less than honest.

As for von Storch’s comments about the tweet, DW gives some context here:

The Cologne police tweeted New Year’s greetings and linked to information on celebrating safely in a series of messages in German and other languages, including Arabic. Cologne was the scene two years ago of mass sexual assaults on New Year’s Eve in which most of the suspects were described as young men of North African and Arab origin. “What the hell is happening in this country? Why is an official police site tweeting in Arabic? Do you think it is to appease the barbaric, gang-raping hordes of Muslim men?” wrote Beatrix von Storch, the deputy leader of the AfD’s parliamentary group. The tweet was later deleted after Twitter froze von Storch’s account and informed her she had violated hate speech rules. Her account was shut down for 12 hours. The Cologne police said on Monday that they had filed a criminal complaint against von Storch for hate speech.



Whatever one might think about von Storch’s comments, which read to me (and I’m not exactly a fan of Merkel’s immigration policies) as a harsh and intemperate response to a well-intentioned gesture by the police, she is the deputy leader of the AfD’s parliamentary group. And the AfD is no longer just a party of the fringe. Given an enormous boost both by Merkel’s Willkommenspolitik and the attempts by the media and political establishments to stifle criticism of the approach that the Chancellor had taken, the AfD secured nearly 13 percent of the vote in Germany’s recent elections. There is thus something particularly unsettling about von Storch’s (brief) silencing on Twitter, and something infinitely more sinister (and, probably counter-productive – more on that later) about the filing of a police complaint.

So far as Twitter is concerned, it’s understandable enough why the company did what it did. To be sure, Twitter is less even-handed in its approach to free speech than it pretends, but it’s hard to imagine that its decision will not have been influenced by the prospect of a massive fine should it have contravened Germany’s new censorship laws, laws so broadly drawn that even the UN was concerned.

Newsweek:

“Many of the violations covered by the bill are highly dependent on context, context which platforms are in no position to assess,” the U.N. Special Rapporteur to the High Commissioner for Human Rights David Kaye wrote of the law in the run up to its passage.

Reuters:

The Association of German Journalists (DJV) said the Twitter move [against Titanic] amounted to censorship, adding it had warned of this danger when the law was drawn up last year. “A private company based in the United States decides the boundaries of freedom of the press and opinion in Germany,” DJV Chairman Frank Ueberall said in a statement, calling on parliament to reverse the hate speech law. Twitter, Facebook and other social media platforms are scrambling to adapt to the law, and its implementation is being closely watched after warnings that the threat of fines could prompt websites to block more content than necessary. Germany has some of the world’s toughest laws on defamation, incitement to commit crimes and threats of violence, with prison sentences for Holocaust denial or inciting hatred against minorities. Merkel’s conservatives accused the AfD of undermining the post-war democratic consensus in Germany. “The racism that AfD lawmakers have been tweeting for days is intentionally violating, with criminal intent, the basic consensus which democrats have built up since 1949 despite all disagreements,” Armin Laschet, party deputy of Merkel’s Christian Democrats, tweeted. “By doing this, they want to pave the way to a totally different republic.”


No-one should need reminding of Germany’s terrible history (to which, it may be unfair to note, von Storch has an unsettling family connection) and the circumstances that gave birth to the postwar republic’s attitude to free speech.

In an earlier post, I quoted Foreign Affairs:

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. 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.

In that same post, I agreed that, in the specific circumstances of Germany just after the fall of the Third Reich, that might (just) be understandable, but now?

Then there’s this from Flemming Rose of Jyllands-Posten, the Danish newspaper that published the Mohammed cartoons, in an interview with The New Yorker in 2015 (my emphasis added):

I found that, contrary to what most people think, Weimar Germany did have hate-speech laws, and they were applied quite frequently. The assertion that Nazi propaganda played a significant role in mobilizing anti-Jewish sentiment is, of course, irrefutable. But to claim that the Holocaust could have been prevented if only anti-Semitic speech and Nazi propaganda had been banned has little basis in reality. Leading Nazis such as Joseph Goebbels, Theodor Fritsch, and Julius Streicher were all prosecuted for anti-Semitic speech. Streicher served two prison sentences. Rather than deterring the Nazis and countering anti-Semitism, the many court cases served as effective public-relations machinery, affording Streicher the kind of attention he would never have found in a climate of a free and open debate. In the years from 1923 to 1933, Der Stürmer [Streicher’s newspaper] was either confiscated or editors taken to court on no fewer than thirty-six occasions. The more charges Streicher faced, the greater became the admiration of his supporters. The courts became an important platform for Streicher’s campaign against the Jews.


The precedent is far from strictly comparable, but there could still be a lesson there.