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Free Speech in the US vs Europe: Who Is Right?

Feb 27

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Preview

"I disapprove of what you say, but I will defend to the death your right to say it."—Evelyn Beatrice Hall, conveying the ideas of Voltaire

On February 14th 2025, US Vice-President JD Vance gave a speech at the Munich Security Conference.

Given the forum, you’d expect he would have used the time to address Russia and Ukraine. Instead, he argued that the biggest threat to Europe was internal: the loss of freedom of _expression_.

As a European and an American, I feel like I’m in a good position to address both sides of the argument: Why is Vance accusing the EU of backsliding on freedom of speech? Is he right? If both regions share their values of freedom, why are there differences between them? What is the right amount of free speech?

JD Vance: What Does the US Stand For?

Vance stated that the very point of the existence of the West, what we stand for, what we fight for, is freedom. Freedom allows people to enjoy their lives, but also to invent, to improve, to build. And he sees a lack of this freedom in Europe, giving some examples:

The EU canceled Romania’s elections, apparently because of Russian interference. This means the EU believes Romania’s democracy is not strong enough to fend off a few social ads from Russia. If so, how valuable is that democracy? Do they believe it’s not worth defending?
EU commissars threatened to shut down social media during times of social unrest the moment they spot “hateful content”.
German police have carried out raids against people posting anti-feminist content on social media, to combat misogyny.
In Sweden, the government convicted a Christian activist for participating in Quran burnings that resulted in his friend’s murder. The judge of that case said: “Sweden’s laws to supposedly protect freedom of _expression_ do not in fact grant a free pass to do or say anything without risking offending the group that holds that belief.”
In the UK, a person was charged for standing 50 meters away from an abortion clinic and praying silently for his unborn child who was aborted a few years earlier.¹
The Biden Administration pushed social media companies (among many ohter things) to silence the coronavirus lab leak theory, which turns out to be likely true.

So he wonders: What’s the point of fighting together if we don’t agree on what we fight for?

JD Vance’s argument is rooted in US tradition: The US Declaration of Independence states that Life, Freedom, and the Pursuit of Happiness are inalienable rights. This is the beacon from which all values flow in the US. It is why the US has pushed for democracy and freedom across the world over the last century.²

This is so important that the Founding Fathers gave it teeth, and freedom of speech in particular is backed by the US Constitution’s 1st amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now, Vance’s speech would make it look like the US will one-up Voltaire and put the strength of the state behind defending your right to say anything, but that’s not true. There are a bunch of exceptions to freedom of speech in the US:

…obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, false statements of fact, and commercial speech such as advertising. Defamation that causes harm to reputation is a tort and also a category which is not protected as free speech. Hate speech is not a general exception to First Amendment protection.

You will notice some weird exceptions, including false statements of fact and advertising. What?!

False statements of fact means the US government can put you in jail for saying something false? No. Only when the costs of falsity outweigh the value of freedom of speech. One example is defamation: You can’t spread lies about someone else to undermine their reputation.³

You also can’t commit fraud: lie for personal gain. That includes perjury, false advertising, lying to investors…

You also can’t lie if your lie causes direct harm, especially to a private individual.⁴

So there are some limits to free speech, even in the US. How does that differ from Europe?⁵

What Does the EU Stand for?

The EU Charter of Fundamental Rights’ Article 11 is also clear:

Freedom of _expression_ and information: Everyone has the right to freedom of _expression_. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

But the European Convention on Human Rights’ Article 10 starts similarly, but adds something that changes everything:

Freedom of _expression_:
1. Everyone has the right to freedom of _expression_. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. 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.

This is vastly different from the US. It opens up the option for politicians to curtail freedom of speech at will, because any speech that is against your values can be subject to restrictions or penalties. It’s not surprising, then, that Germany’s criminal code bans hate speech⁶ and speech that reviles religions.⁷ Another law forces social media to delete hate speech, misinformation, and fake news. Insults in public are illegal. Reposting such content is illegal too. A 2020 reform can put people in jail for up to three years if they insult a politician!⁸ France, Belgium, and Germany have laws prohibiting people from denying the Holocaust. Poland has a blasphemy law. In Spain you can neither insult the king nor support terrorism… And this is just a sample.

You can imagine how easy it is for governments to abuse this. In the UK, thousands of people have been jailed for internet trolling or being offensive, even in private messaging apps. Here is the perfect example, this time from Belgium:

You can find a media report on this in Politico. Here, the problem is not AI. AI is a tool. The problem is that there’s a complete disregard for freedom—and rationality. Just the fact that toxicity is a factor for sending people to jail is shocking. This bans criticism! Because many politicians perceive criticisms against them as simple toxicity.

Here are a few more examples, just from Germany, to illustrate the point:

Robert Habeck, the head of the Greens in Germany, and minister of economy and environment, and his colleague Annalena Baerbcok, have sued over 1300 Germans for their attacks against them on social media.
- Here’s an example of the consequences of these: The police raided the house of Stefan Niehoff, a 64 year old pensioner living in the Bavarian village of Burgpreppach for sharing an image calling Robert Habeck “weak head”.
- A woman had her house searched in 2023 and her mobile phone and her son’s laptop confiscated because she had shared a meme on social media that made fun of leading government politicians.⁹
A 42-year-old man from Hamburg had his home raided by police after posting a tweet calling a local politician, Walter Wobmann, a "Pimmel" (German slang for "penis").
A student was fined €1,500 for calling the state “dirty”.
A man was sued because he wanted to fight antisemitism by exposing antisemites, who carried a swastika.

Here’s an example of these home searches:

I think we all agree that things like fraud and incitement to imminent violence are bad and should be banned.

Then there are things that the US bans that are debatable, such as lying. Purposefully lying with the express intent of hurting someone is defamation and should be illegal. But what if the lie wasn’t purposeful? Is it a lie then, or is it a mistake? What if the intent was not really to hurt? This is not so clear cut.

Then there are things that are totally legal in the US but illegal in many EU countries, such as negationism, hate speech, or toxic criticism of power.

AFAIK the main thing that the US bans that the EU doesn’t is obscenity, which is. For a country that prides itself on freedom of speech, it sure is righteously prudish. Outside of that, the US is much more permissive than Europe.

We can broadly summarize all this:

Where do these differences come from, and who is right?

US vs EU Traditions of Free Speech

At the beginning of the French Revolution, in 1789, the French wrote the Declaration of the Rights of Man and of the Citizen. Its Article XI says:

The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, except to respond to the abuse of this liberty, in the cases determined by the law.

We can see that the freedom of speech was already limited. Why?

The Europeans invented free speech. In the quote at the top, I shared the spirit of Voltaire in the 1700s: that he could vehemently disagree with somebody but defend to the death their ability to say it. But Rousseau was another influence, and unlike Voltaire, he thought we also had to take into account the common good. Here are a few other factors that influenced freedom of speech during the French Revolution:

The French had one single Church (Catholicism), so religious diversity was not as important to the French as it was to the Americans, many of whom had escaped religious persecution, and whose country was founded on the ideal of religious freedom.
In the mid-1700s, although there was censorship in France, it couldn’t have been very strict, since the ideas of enlightenment spread easily across the salons of the country. Notably, ideas against the Church and in favor of secularism spread widely, producing France’s fertility crash.
The French suffered tumultuous times before and during the Revolution, which sensitized them to the value of censoring ideas to keep the peace.

All these reasons drove the French to push for rights—including freedom of speech, but with some recourse to censor it when needed.

In 1791, the Americans opted for a broader freedom of speech in the First Amendment to the U.S. Constitution, adopted two years after the French Declaration:

One of their philosophical influences was John Locke, for whom natural freedoms were extremely important.
The British were extremely strong censors, limiting use of the printing press and any criticism to the crown. The Americans grew extremely sensitive to censorship.
Americans had to deal with religious diversity. They saw how important it was for religions to be protected, in part through freedom of speech.
Originally, the United States were 13 separate colonies. They were very wary of federal power. They wanted to avoid any abuse of it, recalling how the British had abused their power.

So Americans and Europeans had different experiences that led them to create different laws early on. But their laws are not the only differences between them.

The US is about to celebrate a quarter millennium of continued democracy. This is unprecedented. And it has gone quite well for them. Therefore, they think: Freedom is good!

This has not been the European experience. Take Germany, for example: It became a true democracy¹⁰ in 1918, when the losses in WW1 pushed it to renounce the monarchy and replace it with a democratic republic. This first democratic experience only lasted 15 years: Hitler received enough votes in its 1933 elections to assume power and, through machinations, transform the state into his own dictatorship, resulting in the most catastrophic event of Germany’s history, the loss of a huge part of its land and people, and shame for decades to follow.

Hitler used many subterfuges, but he won people’s minds with his oratory and propaganda skills. He was simply a master communicator. So Germans have a great sense of how communication can be really bad. They fear it.

Here’s my attempt at graphing this:

In the continuum between total freedom of speech and total censorship, Europeans are more concerned about the rise of charismatic dictators than Orwellian, 1984-type governments. So they temper their freedom of speech with more censorship.

Americans are scared to death about the 1984-type dictatorship, with a bureaucracy that stifles speech and even thought, as the UK did before independence. So the U.S. position is more open to freedom.

Who Is Right?...

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