As Europeans are arrested for what they say, how ‘free’ is Europe’s speech?

While America and Europe are two parts of one West, they have always treated the idea of “rights” differently. The former has long put a premium on individual liberties – the right to bear arms, for example – whilst the latter has long put a premium on collective rights, such as the right to healthcare. But both have always, in the modern age at least, claimed to have the individual right to the freedom of speech. However, across the continent of Europe, genuinely frightening cases of speech restrictions are becoming increasingly commonplace.

A 16-year-old was recently removed from her high school by police in Germany. Her crime? Reposting a pro-AfD video on TikTok involving the Smurfs (the populist-right party’s colour is blue). A woman in the United Kingdom was detained for silently praying outside of an abortion clinic: the land of George Orwell had someone arrested for a literal thought crime.

An Austrian woman was arrested for calling Muhammad, who married a nine-year-old girl, a paedophile. Another woman, this time in Germany, was fined €80,000 for making a Nazi salute. Again in Germany, an AfD politician was arrested and fined for claiming that migrants commit more gang rapes than German citizens do (the court did not dispute her facts, but said she was inciting hatred). The German government also recently shut down a popular right-wing news source over claims that it was extremist. And to top it off, Germany sought information from a popular social media website about a user who had anonymously posted a satirical image insulting a German politician by, among other things, calling her fat.

And that is just a small smattering of what has become a flood of cases. How did things get to this point?

It is not an insult to say that Europe never had truly free speech. Free speech on the continent was always somewhat less than truly free. For example, even after the spread of democracy throughout the continent, laws – many of which remain on the books across Europe, from Poland to Germany to Spain – made it illegal to insult national leaders.

But after World War II, Western leaders decided one of the causes of the war was absolute freedom of speech (I say “Western” because some of these laws were forced onto the defeated Axis Powers by the Allies). Because Nazis were able to get their message out before the war, the reasoning went, they could spread it. This reasoning was flawed. Weimar Germany, the pre-Nazi government, banned anti-Semitic speech and insults to religious communities. This did nothing to stop the rise of Adolf Hitler.

But, out of an understandable desperation to ensure that nothing like the Nazis could rise again, bans on certain objectively bad things were allowed, Nazi salutes and publicly endorsing Nazism, for example. Who would miss those things? Why would it matter if a Nazi was penalised? These were the questions that defendants posed. No one wanted to be the one to defend Nazi salutes. After all, they represented one of the greatest evils of the 20th century. These bans quickly became commonplace throughout Europe.

So that explains the German woman who was fined €80,000 for the Nazi salute. But what about the other cases?

The problem comes from the fact that the legal framework used to make these bans is extremely expansive. The European Convention on Human Rights, which all states in Europe have signed, guarantees that “everyone has the right to freedom of expression.” The problem is the entirety of the next paragraph, which I have quoted in full below:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The list of restrictions – “interests of national security,” “public safety, “prevention of disorder,” “protection of…morals,” “protection of the reputation…of others” – leave a hole in speech large enough to drive a truck through. It simply eradicates the very notion of free speech. By its logic, you can be fined or jailed for essentially saying…anything.

It is vague – and that is the point. If the restrictions were one sentence that said, “No Nazi salutes,” then that would be it, it could not easily be expanded. But “respect for persons”? That, by contrast, is quite broad, and gives the government immense power. Thus, a woman in Austria who says about Muhammad, “A 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not paedophilia.” can be arrested and fined for saying something which, though not precisely accurate — the girl was nine before Muhammad had sexual relations with her — was, if looked at in modern terms, true.

It is worth staying on this case for a moment, as the story after her arrest is even more chilling. She appealed her guilty verdict to the highest court in Europe, the European Court of Human Rights. Their finding? Using the aforementioned treaty text, the court found in 2018 that the woman “had failed to neutrally inform her audience of the historical background” of Muhammad’s paedophilic activities and that she had “subjectively labelled Muhammad with a general sexual preference for paedophilia” instead of making it clear that he also had relations with older women. Never mind the fact that Islam’s own religious text, the Hadith, says that Muhammad had sexual relations with a nine-year old.

These cases also often only go one way. Rarely is speech restricted, in recent years, on the Left. This played out in a spectacular fashion in Poland, when a woman made insulting statements about the Holy Bible and was fined for blasphemous statements insulting religious feeling. When the European Court of Human Rights was asked to review the case in 2022 – just four years after the Austrian Muhammad case – they found that she had been wrongfully punished.

What makes these restrictions even more frustrating is that they do not work. Polling has consistently shown that Europeans are not substantially more likely to know more about the Holocaust and Nazi crimes than Americans are. Plus, think about the logic of it: who in their right mind believes that, by sending police to interrogate a 16-year-old in her own school for posting a video on TikTok, that she will become more progressive? Is there any chance that she will emerge from this experience “enlightened,” as the German government would have it? Of course not. If anything, she will double-down. The government literally sent police into her school to attempt to frighten her. 

The fact is, the Nazis did not rise because people had free speech. Why exactly the Nazis rose to power is a great debate, one which has filled hundreds of books and articles. But it is wrong to suggest that too much freedom is the culprit. After World War One, Germans did not have enough money for bread and were unmoored from what they had known. They then turned to Adolf Hitler, who was able to use that anger and directed it toward evil ends. One of his earliest endeavours? Banning free speech.

It is time to say now what should have been said after the Nazi empire was wiped from the map, when the first vaguely written hate speech laws were enacted: that those types of laws, however well-intended, snowball into monstrous restrictions on the individual. None, including even restrictions on vile speech, can be countenanced. All such laws must be opposed. The very concept of freedom is at stake.