Censorship doesn’t Prevent Hatred

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2023 was a disastrous year for free speech in liberal democracies. Unfortunately, 2024 only promises to deepen the free speech recession that has been sweeping open societies for years.

On October 7th 2023, Hamas operatives carried out the deadliest single attack on Jews since the Holocaust. Some 1,200 people were killed including hundreds of civilians. The Hamas attack not only triggered a bloody Israeli invasion of Gaza. It also had immediate consequences for already tense debates about the limits of free speech in open democracies far removed from the carnage in the Middle East.

Students and academics at elite universities in the United States justified and sometimes even celebrated the mass slaughter of Israeli civilians. In Europe and Australia, pro-Palestinian demonstrations were accompanied by horrific antisemitic chants, including calls to «gas the Jews» and for the destruction of Israel. In Berlin, a synagogue was attacked with firebombs while Stars of David were scrawled on apartments housing Jews, reminiscent of Nazi policies in the 1930s. In Denmark the intelligence services advised Jews against demonstrating in public due to credible terrorist threats.

A danger to tolerance

There are compelling reasons why governments and civil society should worry deeply about outpouring of hatred and extremism on a continent where antisemitism and anti-Muslim bigotry are rearing their ugly heads, and political parties with explicitly intolerant agendas are on the march. Unfortunately, the default reaction from both governments and cultural institutions has been to respond with censorial and repressive measures that are likely to be counterproductive and dangerous to both freedom of expression and tolerance.

The outbursts of antisemitism following the Hamas attack were particularly concerning to European governments given the fate of European Jews during Nazism. In France and Germany, authorities banned pro-Palestinian protests, hundreds of demonstrators were arrested and several people were charged with glorification of terrorism or hate speech. This includes a French trade union leader arrested in his home at dawn for a Facebook post. 16 French Senators went even further and submitted a bill that would punish anti-Zionism and «hateful» criticism of Israel with prison of up to 5 years. The Guardian fired cartoonist Steve Bell for a cartoon critical of Israeli Prime Minister Benjamin Netanyahu, which the newspaper deemed antisemitic. Several cultural events in both Europe and the United States featuring Palestinian authors, academics, filmmakers, and musicians were canceled despite the fact that they had no relationship to terrorism.

The EU pressures Big Tech

The European Union used the Hamas attack to flex its new regulatory muscles provided by the Digital Services´ Act – a sweeping piece of legislation that obliges tech companies to remove illegal content and «mitigate» systemic risk from «harmful» content such as disinformation. In a move criticized by human rights organizations, the Commission´s self-appointed cyber-sheriff Thierry Breton fired off a flurry of public letters to Big Tech CEOs alleging shortcomings in removing illegal and harmful content and threatening legal action.

To top it off, the European Commission issued a call for action to achieve a «Europe united against hatred». The main thrust of the Commission’s proposal is the expansion of the definition of illegal hate speech and to ramp up the enforcements of its censorship. Notably, the Commission wants to extend the current list of ‘EU crimes’ in the Treaties to include the nebulous concept of «hate speech». This change, first proposed in 2021, could allow the Commission to define the threshold for what constitutes hate speech and expand the number of protected groups.

A false promise

However well intentioned, many of these attempts to protect democracy by being «intolerant of the intolerant» – to paraphrase Karl Popper – rests on a false premise. Namely that criminalizing harmful speech is an effective remedy without relevant social costs or unintended consequences. This is a serious flaw that merits scrutiny.

First, many democracies – including European ones – have already adopted various measures to restrict harmful speech. A recent report by The Future of Free Speech Project scrutinizes free-speech trends in 22 open democracies from 2015 to 2022. The findings are clear and concerning: 78 per cent of the developments were speech restrictive, with national security and hate speech being the leading causes for curtailing free expression.

Germany is an excellent example of this trend and its shortcomings. In 2017, Germany enacted the NetzDG law to combat online hate speech. The law mandates social media platforms with more than two million users to block or delete clearly illegal content within 24 hours of receiving a complaint or face hefty fines. Additionally, in 2021, Germany broadened its laws to criminalize hate-motivated insults to protect Jews, Muslims, and other groups.

Germany has also increased efforts to prosecute hate speech. The New York Times reported in 2022 that more than 1,000 Germans had faced charges for online hate speech since 2018, with some cases involving police raids and the confiscation of personal devices. Despite this draconian approach, the European Commission found drastic increases in hate speech in Germany. Rather than acknowledging that this policy has failed, the Commission used the German uptick in hate speech to justify adopting even more of the stringent measures that have demonstrably failed to curb hatred.

«Rather than acknowledging that this policy has failed, the Commission used the German uptick in hate speech to justify adopting even more of the stringent measures.»

Even more importantly, research suggests that free speech often correlates with less violent social conflict in democracies. By allowing even intolerant voices, free speech acts as a «safety valve», reducing the likelihood of fringe groups resorting to violence. Permitting hateful speech also makes it easier for law enforcement to identify and surveil those most likely to escalate vicious words into violent acts. In the Netherlands, the prosecution of the far-right politician Geert Wilders not only failed to prevent him from winning the recent parliamentary elections. Researchers have shown that Wilders’ trial correlated with a spike in non-violent hate crimes (including hate speech), hinting at a backlash effect of increased affective polarization radicalizing his supporters.¹

The misuse of free-speech restrictions by authorities is also a real risk. In Ireland, a new hate speech bill is set to criminalize «material that is likely to incite violence or hatred» in such a broad way that it could include memes and gifs downloaded on personal devices. Spain’s broad application of laws against «glorifying terrorism» that has sent rappers to prison for up to nine years and France’s penalization of an LGBTQ rights leader for calling a political opponent a «homophobe» also exemplify the potential for abuse. So do the many prominent examples of over-blocking legal content on social media platforms. Undoubtedly, freedom of expression can be used to attack crucial democratic values such as equal dignity for all. But it does not follow that restricting freedom of expression to prevent these harms will solve the problems at hand.

Bottom-up empowerment

Abandoning the fruitless focus on combating hatred and extremism through censorship and repression does not mean abandoning the important ideal of a «Europe united against hatred». This crucial goal can be pursued by other means better aligned with fundamental European values, including freedom of expression and equality.

«Abandoning the fruitless focus on combating hatred and extremism through censorship and repression does not mean abandoning the

important ideal of a ‹Europe united against hatred›.»

Promoting counterspeech and fostering tolerance through education and public discourse are some of the many tools (em)powered by freedom of expression. Moreover, democratic governments and institutions must speak out and show solidarity with groups targeted by hate speech, and unequivocally condemn expressions of intolerance. Civil society, academia, and tech companies also have a critical role in creating a tolerant and cohesive society. Their efforts to foster an information ecosystem grounded in trust, cooperation, and reliability are vital. The much-needed updates to the digital world are much more likely to bear fruit if guided by a bottom-up approach empowering users and creators than heavy-handed, top-down government censorship. As liberal democracies grapple with intolerance and hatred, the challenge is to address these issues without undermining democratic health.

Democracies must show that the values of freedom of expression and equality are not mutually exclusive, but mutually reinforcing. To do so, open societies should drop the idea that the former must be sacrificed to secure the latter.