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Germany’s risky law for stopping hate speech on Facebook and Twitter

Illustration by Doug Chayka

If the internet is to be believed, 1,000 immigrants—many of them refugees from Syria—descended on the center of the German city of Dortmund on New Year’s Eve in 2016. Aggregating even wilder online reports, Politically Incorrect News, a German far-right web site, wrote that “the invading hordes” shouted “Allahu Akbar” as 1,000 men “threw fireworks at the police” and at a local church.

The internet, of course, is not to be believed.

There really were scores of immigrants in the center of Dortmund to celebrate the beginning of the new year. Many did launch fireworks, as is customary in most Western cities. But video footage from the day shows that they neither attacked the police nor tried to burn down the church. By the time mainstream outlets reported the facts, the damage had long since been done. Tens of thousands of people had seen the false rumors on Twitter and Facebook.

In Germany, public discourse is much less freewheeling than it is in the United States. After World War II, the fledgling Federal Republic developed a strong social prohibition against racist and inflammatory rhetoric. Mainstream media outlets worked within much stricter boundaries of good taste and moderate opinion. And since Germany—like most European countries—doesn’t have an equivalent of the First Amendment, the state gradually began to enforce this consensus with all of its coercive powers.

As a result, the limits on what citizens can do and say in the country are now remarkably rigid. In the United States, many people know that to use Nazi symbols in Germany, to deny the Holocaust, or to inveigh against foreigners is to risk prison. But few realize that even to call a politician a liar or an asshole is to invite a costly defamation suit. (A few years ago, a friend of my mother’s had to pay a big fine for flipping off a motorist who cut her off when she was cycling to work.) In short, German politicians have long believed that censorship is a necessary response to hate, and the German people have learned to tolerate, as it were, greater limits on their freedom of expression than most in the West.

So, after more than a million refugees arrived in Germany in 2015, pitting the actions of the political establishment against the preferences of a great majority of the German people and unleashing a torrent of hate speech online, Germany responded as it always has—with new regulations.

A few months after the supposed incident in Dortmund, a broad cross-party coalition in the Bundestag passed a law designed to make the topsy-turvy world of Twitter and Facebook look a little more like the staid pages of Süddeutsche Zeitung and the Frankfurter Allgemeine. Since the law went into effect in January, social media platforms with more than 2 million users in Germany have been required to erase posts that run afoul of German hate speech laws. If they fail to delete user-generated content containing Nazi symbolism, denials of the Holocaust, incitements to racial hatred—or a plethora of less clearly defined transgressions, including “insult” and “blasphemy”—within 24 hours, the companies can be fined up to 50 million euros ($60 million), and their German executives can be personally liable for 5 million euros.

The law has already had an appreciable impact on social media networks, and not just in Germany: Around the globe, Facebook has plans to hire 10,000 new content moderators to scour the site for hate speech, doubling its current number. The German law has also inspired other European countries: In recent months, France and the United Kingdom, among others, have passed or debated similar measures.

But to be effective, such laws need to accomplish at least three tasks: They must slow the spread of intolerant attitudes, weaken extremist political forces, and be safe from abuse by authoritarian populists. Germany’s sweeping sanctions on tech giants don’t meet any of these conditions. Instead, the last few months show just how easily restrictions on free speech can be flouted at home while being twisted to serve the ideological purposes of straight-up autocrats abroad.

In many ways, Germany’s reaction to the rise of online hate showcases what’s best about the country’s political life: the fact that major parties of the left and right are able to work together on key pieces of legislation, the abhorrence to hate speech and political extremism, and the commitment to what Germans have come to call a wehrhafte Demokratie, or a “democracy capable of defending itself.”

Extremists, however, have often found ways to get around such laws in Germany. To be sure, its taboos have helped keep the most horrific slurs and calumnies out of the public sphere. But the stricter the rules against open expression of hate, the more sophisticated bigots become at dressing it up in seemingly harmless language; and the more coded the messages that convey hate, the more members of the majority feel that they are liable to be ostracized for saying the wrong thing.

Growing up as a Jew in the Germany of the 1980s and the 1990s, I saw this dynamic firsthand: Worried that one careless formulation might tar them with the brush of anti-Semitism, many people were visibly nervous even to talk to me and other German Jews. Today, a similar dynamic is playing out in debates about everything from the role of Islam in German society to the policy the country should adopt toward refugees.

Furthermore, these kinds of laws often actually strengthen the resolve of those on the right, giving them a convenient narrative about how they, not immigrants, are the oppressed ones. The far-right populist party Alternative for Germany, in particular, has long claimed that it is being censored (a tactic that helped propel it into the Bundestag for the first time last fall, when Alternative for Germany won 94 seats). The new law fits its narrative perfectly: Advertising itself as the only party with the “courage to tell the truth,” Alternative for Germany has, since the law went into effect, increasingly claimed that the “cartel of the old parties” “suppresses” anybody who does not adopt the “filthy left-green consensus.” Hate speech, it seems, simply morphs and finds new targets; it never disappears altogether. Attempts to squash it often only give the culprits ammunition.

There are also real concerns about how autocrats might abuse the German law. Last year, Vladimir Putin’s United Russia party rushed a copycat law through the Duma within a few months of the German one’s passage. Resembling the German model so closely that whole passages appear to have been cribbed from it, the Russian law requires social networks to pay steep fines if they fail to remove banned content, not just hate speech, within 24 hours. Russia forbids many more forms of political expression than Germany does, and local judges are far more beholden to the government. So it’s fair to assume that Putin and his cronies can use this law to stifle freedom of speech and quash the opposition. As Reporters Without Borders argued in July, “The Russian bill shows that when leading democracies devise draconian legislation, they provide repressive regimes with ideas.” But that overstates the case.

It is irksome that Putin was handed a convenient fig leaf for his efforts to silence opposition—but he knew full well how to suppress freedom of speech long before Germany regulated Facebook and Twitter. His more probable motivation was to annoy Western lawmakers, who must have been furious when they realized they couldn’t really object to a law that they themselves had crafted.

The real worry then should be that populist elements within democratic countries may one day come to power and subvert these well-intentioned laws. As new, restrictive measures in Poland and Hungary show, even in supposedly stable democracies the rule of law is more brittle than many political scientists believed a few years ago. And when authoritarian strongmen take control of the government, laws that were once thought to be harmless can easily be misdirected to deeply oppressive uses.

The United States’ deeply ingrained commitment to freedom of speech makes it easy for Americans to lose sight of the logic that animates the First Amendment. It is not that all utterances have intrinsic value or deserve a chance to be heard. It is that giving some people the authority to determine which utterances have no value at all hands them powers with which nobody can be trusted—while allowing the cranks who are censored to portray themselves as courageous renegades.

And that is why countries like Germany, which tolerate more rigid restrictions on public discourse, would be well-advised to fight the spread of hate speech and fake news with pedagogy rather than censorship. Cumbersome though it may be, the only viable approach to curbing the demand for such ideas is to dispel prejudices and educate citizens about the importance of liberal democratic institutions. Even in the age of Twitter and Facebook, of the Alternative for Germany and Politically Incorrect News, the best defense of liberal democracy is not to punish its harshest critics—but rather to convince as many people as possible of its merits.

Editor’s note: This article originally credited Alex Nabaum for the illustration. We regret the error.