European Court of Justice, Luxembourg. Photo by Cedric Puisney.
Humans and chimpanzees share around 98 percent of our DNA, but that last 2 percent makes a big difference. When comparing America’s democratic DNA to other societies, that 2 percent takes the form of our First Amendment.
The First Amendment gives primacy to Americans’ freedom to express our thoughts and ideas. It rests on a foundation that my mother taught me in kindergarten: “Sticks and stones may break my bones but words will never hurt me.” With very few exceptions, such as our relatively narrow defamation laws, citizens’ right to speak outweighs nearly every other competing concern.
It is not fair to say that places like the United Kingdom, or France, or Canada, or Israel are not free. But they have a different conception of freedom than Americans do. Freedom of communication and of religious expression, as embedded in our Constitution and as (more or less) faithfully upheld by our Supreme Court, is central to the way we exercise our individual prerogatives under a government that, by design, is more limited than almost anywhere else in the world. Our Bill of Rights opens with an imperative and absolute command: “Congress shall make no law […] abridging the freedom of speech, or of the press.” Not “Congress shall make no law unless it has a really good reason,” or “Congress shall make very few laws abridging the freedom of speech.” No law.
Many of our allies value free expression, but in a more moderate sense. Canada, for instance, has passed laws in recent years abridging free expression, especially for the press. Peter Nygard, a Canadian fashion designer, has sued the CBC for defamatory libel and a court of appeal decision in 2017 allowed the case to proceed, a result that is hard to picture in an analogous situation in the United States. Advocates for free speech in the United Kingdom argued for stronger protections after Guardian journalists were forced to destroy computers storing documents that Edward Snowden leaked under threat of an injunction. However, since the U.K. does not have a formal constitution, any Act of Parliament attempting to give free speech primacy in British law is subject to being overturned by a subsequent law. Also, like other participants in the European Convention on Human Rights, the U.K. is ultimately constrained by Europe’s emphasis on personal privacy rights.
What you see in free countries other than the United States, then, is often a balancing act. Freedom of expression is valued – but only to a point. It does not come first.
I have written previously about the “right to be forgotten,” the principle announced by the European Court of Justice allowing private citizens in Europe to request that search engines remove results if they feel those results misrepresent them in some way. French regulators weren’t satisfied with companies like Google delinking results in the European versions of their sites, however. In 2015 French regulators fined Google for refusing to extend the right to be forgotten to all of its websites, including the American versions.
Google has appealed to the Court of Justice, backed by organizations including Wikimedia Foundation Inc., Microsoft and the EU’s own executive branch. If it loses the case, Google’s only options will be to comply with France’s demands or to stop operating in the region altogether. The latter seems unlikely, which means Europe would be exporting its speech restrictions globally.
From the French government’s point of view, my freedom to locate and read a 20-year-old Wall Street Journal article is subject to the limitation that a European citizen can ask Google not to show it to me because he or she is mentioned in that article. This is a serious expansion of the way free countries have historically interacted.
With traditional media, the rules were somewhat clearer. For instance, Israel’s military regularly censors news stories that it deems risky to the security of the state. A journalist in Israel, even one who works for an American publication, might be subject to such censorship. This is true even if stories are posted online, rather than printed in a newspaper or magazine. But Israel cannot stop an American journalist in America from reporting on stories involving Israel. And once the information gets out, it’s out.
As some of Google’s supporters have observed, a win for France in the Court of Justice might also make it easier for countries that disrespect free expression outright to demand companies censor other kinds of information. China would presumably love to dictate what Americans or Europeans can read online about Tiananmen Square. Some free speech advocates have predicted a race to the bottom as various countries impose their own restrictions.
There is a trade mismatch in Google’s situation, too. American information providers operate much more extensively in Europe than the reverse. These companies already face friction from European views about copyright, antitrust and other legal principles that differ from American law. When a company, even a very large company, opposes a government, the deck is stacked in the government’s favor.
Big companies like Google – or Microsoft, or Facebook – do not face a fair fight when they go up against foreign governments. We have to expect our own government to push back hard on foreign efforts to impose their restricted views of freedom of expression on Americans inside America. The U.S. government should weigh in on this matter and make clear that protecting Americans’ freedom of expression within America is just as essential as protecting Europeans’ privacy within Europe.
To the extent that our businesses operate within Europe, serving European markets – read, accepting the cash of European advertisers – we have to concede that European laws apply. It’s their country. But their laws do not apply here. Some Americans fail to appreciate the primacy that our country gives free communication over other considerations; for an example, just look at the arguments of those who think the Supreme Court wrongly decided Citizens United. But it is that primacy, more than anything else, which accounts for the 2 percent of difference that sets freedom as we Americans know it apart from other species.