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By PRESTON BYRNE
They’re openly calling for Musk to be arrested and for X to be shut down.
Over the past month, the left-wing Guardian newspaper in England has run no fewer than three op-eds calling for Elon Musk’s arrest: one from in-house columnist Jonathan Freedland, one from former Twitter VP Bruce Daisley, and most recently one from former U.S. Secretary of Labor Robert Reich — for simply operating his publishing platform, X, in accordance with American law.
It bears mentioning that X is not the first open-access publishing platform that follows American content moderation rules, not foreign ones. And it will not be the last.
American regulations on publishing platforms follow two rules: first and foremost, the U.S. Constitution’s First Amendment, which creates a near-absolute American right to nonviolently express any opinion on practically any matter of public importance or operate a publishing platform that hosts those opinions. Second, there is Section 230 of the Communications Decency Act, which codifies at the federal level a judge-made First Amendment jurisprudential principle that you cannot impute liability to a publisher for a statement of which the publisher does not know the content in advance of its publication.
Although Musk is a controversial figure, one thing we can all agree on is that he is an American. This means that unlike, say, Pavel Durov, Musk has the choice to remain in the United States and use his effectively infinite wealth to project free speech abroad and take refuge behind the impervious shield of the American Constitution. No state powers on Earth combined — not Brazil, the European Union, or the United Kingdom — have the power to stop America or, by extension, if Musk avails himself of his American civil rights, to stop him.
In a world where the most powerful country with the largest nuclear arsenal guarantees its citizens the right to host, impart, or receive whatever political ideas they want, even from abroad, the rest of the world needs to get used to the idea that Americans will always create spaces for free speech online and that no legislative or judicial intervention by any foreign power will prevent them from doing so. If Elon and X were not, some other company would, and indeed, numerous other, smaller companies already do). What European commentators want is for tech companies to all band together and eliminate American-style free speech online once and for all. As long as America exists and there is market demand for free speech, this will never happen; as long as Americans exist, they will disobey.
Once the rest of the world gets the memo, civil servants outside the United States will have three choices: (a) punish their own people for engaging in free speech; (b) legislate partially effective domestic blocks to try to deny their own people access to free speech; or (c) collectively punish or pressure innocent parties subject to their jurisdiction who have nothing to do with the speech in question, such as is the case when countries threaten to imprison “local representatives” — hostages — whom many nations, including Brazil and Germany, demand that American social media companies employ in their jurisdictions.
In its recent enforcement actions against X, Brazil has tried to do all three. When X refused to name a local representative for Brazil to arrest, in addition to ordering X’s blocking at the ISP level, Brazil’s supreme court ordered the app’s removal from the Google and Apple app stores, threatened Brazilians with daily fines of approximately $8,000 U.S. dollars for using the app, and briefly even considered banning VPN apps in the country (a move that it later rescinded). Chillingly, the court also ordered the seizure of Starlink’s bank accounts in-country; seeing, however, that Starlink and X are different companies, without common ownership structures, any coherent legal system possessing even a basic notion of fairness and due process would refuse to impute liability for the torts or crimes of one company — or one person — to another company, or other people, who have no relationship to the alleged criminal acts in question. The only thing these two companies have in common is that they are partially owned — in Starlink’s case, not even majority-owned — by one man.
Despite many attempts to do so in the last 230-odd years, Europe has proven unable to stop Americans from being American. The question is how far Europe is willing to go, what punishments it is willing to inflict, what privacy tools it is willing to take away, and how much power it is willing to give the state to prevent disfavored political thought from circulating within its own borders. Historically, Europe has been willing to go “all the way” to punish political dissenters — by which I mean it murders them.
The United States’ laws on free speech were informed by this history, which includes such examples as the case of William Anderton in 1693, a printer who was convicted of treason and executed for daring to refer to the then-king of England as the “Prince of Orange” — a true statement of fact — in a written pamphlet. Censorship-motivated crimes against humanity such as this are why the First Amendment exists, and it is why Elon Musk cannot and will not be arrested in the United States for running his platform as he pleases.
Those who are paranoid about the “rise of the far right” in Europe counterintuitively suggest that the answer to this bogeyman is to grant the state sweeping censorship powers. Crushing dissent (a) won’t silence American servers and (b) is not a surefire way to win a political fight, having failed, in catastrophic fashion from the perspective of the ruling regimes, under the ancien régime, in apartheid South Africa, in the Weimar Republic, and in the former Soviet Union.
If European moderates are truly afraid that the far right will start winning elections, the sensible thing to do is to create institutions and rules that will act as a bulwark against state power, not to expand it. In Europe and the U.K.’s cases, this would involve scrapping the comparatively weak human rights protections of European Convention, repealing existing censorship law, and replacing the current rules with hardened, American-style inviolable civil liberties as quickly as possible.
Ultimately, the worst-case scenario for incumbent parties and ideologies in the weaker democracies is not what happens if the far right expresses itself nonviolently on foreign servers; it is what it will do with powerful censorship laws, once wielded in anger against it, when it wins.