{"id":38288,"date":"2025-09-15T15:24:44","date_gmt":"2025-09-15T15:24:44","guid":{"rendered":"https:\/\/publicknowledge.org\/?p=38288"},"modified":"2025-11-22T20:44:42","modified_gmt":"2025-11-22T20:44:42","slug":"the-censorship-alarm-is-ringing-in-the-wrong-direction","status":"publish","type":"post","link":"https:\/\/publicknowledge.org\/the-censorship-alarm-is-ringing-in-the-wrong-direction\/","title":{"rendered":"The Censorship Alarm Is Ringing in the Wrong Direction"},"content":{"rendered":"\n

On September 3, Congress held a hearing with an alarming title: \u201cEurope’s Threat to American Speech and Innovation<\/a>.\u201d The premise was that the European Union’s (EU) Digital Services Act (DSA) and the United Kingdom\u2019s Online Safety Act (OSA) poses an existential threat to American free expression. Yet the evidence presented reveals a different story entirely \u2013 one where speech safeguards abroad are stronger than the actual speech threats advancing here at home, and where Congress is sounding alarms about unsubstantiated European censorship while ignoring real threats to the First Amendment in their own backyard.<\/p>\n\n\n\n

The hearing followed the release of the House Judiciary Committee Republicans\u2019 interim staff report entitled “The Foreign Censorship Threat: How The European Union’s Digital Services Act Compels Global Censorship And Infringes On American Free Speech<\/a>\u201d (hereafter, \u201cthe HJC report\u201d). While Congress certainly has the authority<\/a> to investigate how foreign regulations might affect American rights and companies, this report is riddled with conjecture, mischaracterizations, and inflammatory rhetoric found in similar “censorship cartel” materials that are readily debunked (and we have, here<\/a>, here<\/a>, and here<\/a>). House Judiciary Democrats also did their own debunking<\/a> of the Republicans\u2019 \u201cMisleading Report on the EU\u2019s Digital Services Act.\u201d<\/p>\n\n\n\n

Ironically, a handful of bills introduced in Congress with bipartisan backing reflect some elements of the DSA \u2013 including requirements for transparency in content moderation decisions and redress in case users feel their content has been mistakenly moderated. That’s not to say the DSA and OSA are perfect laws, but framing these laws as \u201ccensorship\u201d misrepresents their intentional design as a balance between free expression and online safety \u2013 a balance we are slow to figure out here in the U.S. <\/p>\n\n\n\n

Clarifying the DSA\u2019s \u201cRed Line\u201d Against Censorship<\/strong><\/p>\n\n\n\n

What both the HJC report and Republicans in the hearing failed to understand is that the DSA contains what European legal scholars<\/a> refer to as a \u201cred line,\u201d preventing the kind of arbitrary censorship the HJC report claims. While the EU does not have an American-style First Amendment, it does have a Charter of Fundamental Rights<\/a> that protects free expression. The EU also has the European Convention on Human Rights<\/a>, an older treaty which contains similar protection and applies to the individual member countries. As a result, EU regulators cannot restrict speech unless the law clearly specifies what regulators can and cannot do. In other words, the DSA cannot authorize content-specific restrictions using broad terms that lend themselves to abuse; restricted speech must be explicitly spelled out. And the EU can only act within powers specifically granted by member countries. It cannot claim authority over speech that member states have not delegated to it. So an individual EU commissioner cannot unilaterally decide a platform must deal with content in a certain manner. <\/p>\n\n\n\n

As more than 30 leading digital rights scholars recently explained in a letter<\/a> to Judiciary Committee Chairman Representative Jim Jordan (R-Ohio), such principles create multiple independent grounds for European courts to strike down any attempt to use the DSA for viewpoint-based censorship. The DSA must be “content-agnostic” \u2013 meaning that for lawful content, regulators can only enforce content-neutral measures, like how platforms design their systems or how they empower users to control their own experience.<\/p>\n\n\n\n

In fact, the HJC report points to an attempt by EU officials to overstep the DSA’s authority. However, rather than proving an incident of unilateral censorship power, the circumstance demonstrates how checks and balances work when officials overstep their bounds. In the lead-up to the 2024 US presidential election, Commissioner Thierry Breton threatened<\/a> Elon Musk with DSA action for hosting an interview with President Trump, claiming it could incite violence, hate, and racism. He asserted broad authority to regulate “harmful content” and “amplification,” but those terms are not included in the DSA. He confused lawful but controversial speech with illegal content. Yet, European institutions have safeguards: Breton was condemned by civil society groups, his colleagues distanced themselves, and within two weeks, he resigned to avoid dismissal. <\/p>\n\n\n\n

The Brussels Effect and Localized Compliance<\/strong><\/p>\n\n\n\n

It is true that European Union regulations on tech companies can have a global impact. Known as the \u201cBrussels Effect,\u201d the EU enjoys a large and wealthy consumer market, characterized by strong regulatory institutions. If a non-EU company wants to access such a large and wealthy consumer market, it must comply with EU rules. And those rules often influence corporate behavior beyond the EU\u2019s boundaries. An example that has personally benefited me here in the U.S.: thanks to the EU-mandated<\/a> standard of USB Type-C ports, consumers everywhere no longer need to buy new charging cables and adapters with each new Apple product.  <\/p>\n\n\n\n

The House interim report attempts to apply the Brussels Effect phenomenon to the DSA, predicting that online content originating from the U.S. would be moderated according to EU standards, thereby \u201ccensoring\u201d the American user if said users run afoul of EU hate speech laws, for example. This prediction isn’t grounded in legal reality or current practice. The European Commission has explicitly clarified that “where content is illegal only in a given Member State, as a general rule it should only be removed in the territory where it is illegal.” The EU’s highest court backed this principle in Google v. CNIL (2019)<\/a>, ruling that EU privacy regulations didn’t require Google to block search results worldwide, only within the EU.<\/p>\n\n\n\n

There is nothing in the DSA that requires platforms to moderate content that users in America can access. Reiterating this point, Henna Virkkunen, the EU\u2019s Executive Vice President for Tech Sovereignty, Security, and Democracy, clarified in a letter<\/a> to House Judiciary Chairman Jim Jordan that the DSA is \u201cthe sovereign legislation of the European Union, adopted with overwhelming majorities\u201d and \u201capplies exclusively with the European Union to all services provided therein, irrespective of the location of the provider\u2019s headquarters.\u201d<\/p>\n\n\n\n

A Briefer on the DSA\u2019s Requirements<\/strong><\/p>\n\n\n\n

The DSA does not require platforms to remove content outright. Instead, it mandates Very Large Online Platforms (VLOPs) to have an accessible reporting system for users to flag suspected violative content. When notices are received, VLOPs (platforms with more than 45 million users in the European Union) must promptly assess whether the content is illegal (Article 16). They are also required to regularly evaluate systemic risks, including the spread of illegal content, and implement proportionate mitigation strategies, such as their own content moderation processes. VLOPs should prioritize notices from \u201ctrusted flaggers” \u2013 vetted third-party experts in identifying illegal content \u2013 without delay (Article 22). When content is removed, users must be clearly informed of the reasons for the action, the legal basis, whether automation was involved, and how they can seek redress (Article 17). In emergency situations affecting public safety or health, the Commission may instruct VLOPs to undertake urgent measures, including enhanced content removal procedures (Article 36). <\/p>\n\n\n\n

The system emphasizes due process, requiring VLOPs to strike a balance between the effective removal of illegal content and the protection of fundamental rights, particularly freedom of expression. Users have various redress mechanisms if they believe content was wrongfully removed, including internal complaint systems and out-of-court dispute settlement \u2013 a redress system similar to one outlined in the Internet PACT Act, supported<\/a> by Senators John Thune (R-SD) and Bill Cassidy (R-LA), among other lawmakers. In fact, as Public Knowledge noted<\/a>, this redress system is one that could better facilitate free expression, giving users more agency in challenging content moderation decisions. Moreover, there are aspects of the DSA that would receive bipartisan backing if introduced in the U.S., including greater user agency over how platforms collect and utilize personal data, as well as the use of algorithms to target customers with advertising. In fact, COPPA 2.0<\/a> \u2013 a bill cosponsored by Senator Chuck Grassley (R-Iowa) \u2013 would make it unlawful for platforms to target users under 18 with advertising using personal data. <\/p>\n\n\n\n

Addressing Misconceptions in the House Report and the Hearing<\/strong><\/p>\n\n\n\n

In both the HJC report and Rep. Jordan\u2019s remarks, it was stated that \u201ceven the New York Times\u201d pointed<\/a> out that the DSA addresses online speech in a way that would be \u201coff limits in the United States\u201d due to the First Amendment. Such framing misses the point. The U.S. and Europe have categories of speech with limited or no protection based on their respective histories. Neither tradition is \u201cmore democratic\u201d or \u201cmore censorial\u201d than the other. <\/p>\n\n\n\n

America\u2019s First Amendment was born from a revolution against colonial authorities that restricted assembly, censored publications, and punished dissent. Europe\u2019s approach reflects different lessons. In the wake of fascism, genocide, and mass propaganda campaigns that dehumanized entire groups, European societies became more willing to regulate hate speech to protect vulnerable communities\u2019 ability to participate in public life. This is notably the case for Holocaust denial \u2013 a belief not uncommonly found on \u201cfree speech\u201d platforms like X here in the U.S., which would be a criminal offence<\/a> in many European countries. For EU regulators, dignity and equal participation are co-equal democratic values, meaning that persistent harassment directed at marginalized groups is understood as a threat to their free expression. By contrast, the U.S.\u2019s First Amendment law gives the highest protection to political speech, lesser protection to speech that is ‘purely commercial,’ and no protection to obscenity or other forms of speech deemed harmful under the common law, such as defamation or fraud.<\/p>\n\n\n\n

This difference is not about one side embracing \u201cfree speech\u201d and the other rejecting it. It is about where each system draws the line between individual expression and collective harm. The U.S. system treats content-based restrictions as likely to violate the First Amendment, but allows varying degrees of “content neutral” restrictions based on a complicated balancing of what type of speech is regulated (e.g., commercial speech), the purpose of the content neutral restriction (for example, disclosing side effects of medications) and whether the regulation restricts more speech than necessary to achieve the purpose. The EU, on the other hand, based on its history, views certain categories of hateful speech as corrosive to democracy itself.<\/p>\n\n\n\n

Public Knowledge\u2019s view is that there are lessons to be learned from this for U.S. policymakers. Allowing platforms to become channels for sustained harassment does not create a true marketplace of ideas. It drives targeted voices offline, chilling their ability to speak. Gamergate<\/a> is a high-profile example where women in the gaming industry here in the U.S. faced sustained harassment campaigns online, including coordinated abuse, that pushed these women off platforms and silenced their voices. The DSA\u2019s provisions that platforms must respond to illegal hate speech and harassment are not simply censorship, but a recognition that unrestricted hate speech can constitute harassment, and that addressing it is one way of preserving a broader range of voices online. By contrast, the U.S. punishes speech designed to harass individuals (such as personal threats) after the fact rather than attempting to prevent it in the first place.<\/p>\n\n\n\n

This nuance often gets lost in political rhetoric. In a May 2025 multi-stakeholder workshop hosted<\/a> by the European Commission, participants from government, civil society, academia, and industry explored various scenarios to determine whether a flagged post qualifies as illegal hate speech. Both the HJC report and Jim Jordan, during the September 3rd hearing, referred to a hypothetical involving Amira, a \u201c16-year-old Muslim girl.\u201d She sees a post from @Patriot90 featuring a meme of a woman in a hijab with the caption \u2018terrorist in disguise,\u2019 accompanied by a comment saying, \u201cWe need to take back our country.\u201d The report and Rep. Jordan object to labeling \u201cwe need to take back our country\u201d as hate speech, deeming it \u201ccommon political rhetoric.\u201d However, the report and Rep. Jordan leave out additional context: that \u201cthe posts from @Patriot90 start to be more frequent and directed specifically at Amira.\u201d The harm comes not from one slogan, but from the cumulative targeting of a young person based on her faith. In that context, ignoring harassment serves the powerful while silencing the marginalized. This is similar to the U.S. criminalizing<\/a> harassing someone by telephone \u2013 except that rather than prevent the harassment, we punish the harasser.\u00a0<\/p>\n\n\n\n

Clarifying DSA\u2019s Requirements for Elections Monitoring and Fact Checking<\/strong><\/p>\n\n\n\n

The HJC report points to how the European Commission has \u201cinitiated formal proceedings against Meta for the \u2018non-availability of an effective third-party real-time civic discourse and election-monitoring tool\u2019,\u201d and describes the move as punishing Meta \u201cfor failure to adequately censor election-related content.\u201d However, this claim fundamentally misinterprets provisions of the DSA. Firstly, the Commission launched \u201cformal proceedings\u201d because Meta failed to provide a third-party tool for monitoring election-related content, as required by the DSA, after the tech company decommissioned CrowdTangle, a tool used for real-time monitoring of online content. Secondly, the DSA doesn’t specifically define an \u201celection monitoring tool,\u201d but it does require VLOPs to address systemic risks related to electoral processes while protecting freedom of expression. It never states that such a tool be used to flag and remove content; instead, platforms are expected to allow third-party access for monitoring election-related content and ensure they follow their own content policies. The regulation aims to increase transparency in how platforms evaluate election-related risks. <\/p>\n\n\n\n

Given the influence of foreign actors, particularly Russia, it’s understandable that the EU wants to protect its democratic processes, just as the U.S. does. In fact, recently, Republican members of the House Oversight Committee expressed<\/a> concern in a letter<\/a> to the Wikipedia Foundation about whether the platform is effectively tracking and addressing foreign interference, including content from pro-Kremlin sources. If our own government is asking tech platforms to assess foreign influence operations aimed at manipulation, why should we criticize our EU counterparts for doing the same? <\/p>\n\n\n\n

Similarly, the HJC report criticizes the Commission for opening \u201cformal proceedings against X for choosing to use Community Notes rather than allow third-party fact-checkers to censor content.\u201d For one, the Commission investigated X to ensure the then-new Community Notes system was effective in addressing illegal content and to verify its compliance with the DSA\u2019s requirements. Further, fact checkers do not censor content. Fact checkers add context to content<\/em>, essentially expanding speech.<\/em> The difference between a community note and a fact check is that community notes use a bridging algorithm to add context to posts that are provided and agreed upon by a representative sample of users with different political views. Fact checkers are usually third-party services, often from traditional media, dedicated organizations, or academia, that identify and flag content that cannot be verified. They do not remove or downrank content (although platforms can voluntarily decide to moderate content based on a fact check or content flag). Fact-checking and community notes can work together to provide helpful clarification, especially during election season, when online grifters exploit inflammatory and false content to boost engagement and when foreign adversaries increase their influence operations to flood feeds with false information and propaganda. <\/p>\n\n\n\n

The Censorship Call is Coming From Inside the House <\/strong><\/p>\n\n\n\n

Nothing in the DSA requirements compels platforms to globalize their content moderation policies to comply with the DSA. Platforms can and do apply content policies based on geographic location, in accordance with local laws. European regulators cannot fine platforms for failing to moderate content for users based in the U.S. However, it can request that platforms moderate a U.S. user\u2019s content that is presented in Europe. It’s not like Americans don\u2019t fret about foreign speech being spread in the U.S. It’s a contributing factor to why the TikTok ban was passed with such bipartisan support \u2013 over a panic<\/a> that the Chinese Communist Party has undue influence over how content is presented to American users. <\/p>\n\n\n\n

Ironically, some of the real<\/em> speech restrictions the U.K. and EU are implementing have found bipartisan purchase here in the U.S. Namely, the U.K. Online Safety Act (OSA) began requiring platforms to verify ages of users in order for those users to access online content. As we wrote<\/a> in August, the rollout of OSA has been far from perfect, with platforms blocking access to broad swaths of content that, if you squint, may be inappropriate for some<\/em> kids \u2013 but inevitably blocks adults from accessing content unless they submit privacy-invasive information to confirm their age. Such age verification mandates are finding purchase here in the U.S. too. Just recently, the U.S. Supreme Court gave the green light to a Texas law requiring age verification to access pornography, and declined to block a Mississippi law requiring strict age verification to use social media at all<\/em> (although Justice Kavanaugh wrote a concurrence asserting<\/a> that the law itself is \u201clikely unconstitutional\u201d). <\/p>\n\n\n\n

If First Amendment rights are genuinely a top priority for Republican members of the House Judiciary Committee, they should focus on the numerous efforts from the Trump administration that suppress free speech. For example, Ranking Member Representative Jamie Raskin (D-MD), in his opening statement<\/a>, highlighted President Trump\u2019s frivolous and excessive lawsuits<\/a> against disliked media outlets, the withdrawal<\/a> of hundreds of millions of dollars in university grants due to ideological disagreements, the defunding<\/a> of public broadcasting over its reporting content, the installation of<\/a> a \u201cbias monitor\u201d in the newly merged Skydance\/Paramount company, the Trump-directed<\/a> Federal Trade Commission disallowing the newly merged Interpublic and Omnicom from refusing to advertise on platforms based on political content \u2013  and the list continues. As federal court Judge Sooknanan stated<\/a> in her decision granting a preliminary injunction against the FTC\u2019s investigation into liberal watchdog Media Matters for America: \u201cIt should alarm all Americans when the Government retaliates against individuals or organizations for engaging in constitutionally protected public debate. And that alarm should ring even louder when the Government retaliates against those engaged in newsgathering and reporting.\u201d<\/p>\n\n\n\n

Conclusion <\/strong><\/p>\n\n\n\n

Instead of trying to influence laws across the Atlantic, Congress would serve American speech rights better by tackling the real censorship happening at home.

Experts in platform regulation contend<\/a>, \u201cnothing about the EU\u2019s Digital Services Act (DSA) requires platforms to change the speech that American users can see and share online.\u201d While it\u2019s true some elements of the DSA \u2013 specifically in terms of what is considered illegal content \u2013 would be barred here in the U.S. by the First Amendment, the U.S. cannot override EU laws. The HJC report’s concerns stem from fundamental misunderstandings of the DSA’s constitutional constraints and territorial limitations. Instead, Congress might consider how the DSA’s transparency requirements, due process protections, and limits on targeted advertising to children reflect principles that already have bipartisan support here \u2014 from the Internet PACT Act to COPPA 2.0.<\/p>\n","protected":false},"excerpt":{"rendered":"

Instead of trying to influence laws across the Atlantic, Congress would serve American speech rights better by tackling the real censorship happening at home.<\/p>\n","protected":false},"author":224,"featured_media":38289,"parent":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[5],"tags":[11,31,14],"class_list":["post-38288","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-insights","tag-content-moderation","tag-free-expression","tag-platform-regulation"],"acf":[],"yoast_head":"\nThe Censorship Alarm Is Ringing in the Wrong Direction - Public Knowledge<\/title>\n<meta name=\"description\" content=\"The recent hearing in the House Judiciary on a "foreign censorship threat" was centered on a misleading and ill-informed premise.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/publicknowledge.org\/the-censorship-alarm-is-ringing-in-the-wrong-direction\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Censorship Alarm Is Ringing in the Wrong Direction\" \/>\n<meta property=\"og:description\" content=\"The recent hearing in the House Judiciary on a "foreign censorship threat" was centered on a misleading and ill-informed premise.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/publicknowledge.org\/the-censorship-alarm-is-ringing-in-the-wrong-direction\/\" \/>\n<meta property=\"og:site_name\" content=\"Public Knowledge\" \/>\n<meta property=\"article:published_time\" content=\"2025-09-15T15:24:44+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2025-11-22T20:44:42+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/publicknowledge.org\/wp-content\/uploads\/2025\/09\/Congressional-1440x720.png\" \/>\n\t<meta property=\"og:image:width\" content=\"1440\" \/>\n\t<meta property=\"og:image:height\" content=\"720\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/png\" \/>\n<meta name=\"author\" content=\"Morgan Wilsmann\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Morgan Wilsmann\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"14 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/publicknowledge.org\/the-censorship-alarm-is-ringing-in-the-wrong-direction\/#article\",\"isPartOf\":{\"@id\":\"https:\/\/publicknowledge.org\/the-censorship-alarm-is-ringing-in-the-wrong-direction\/\"},\"author\":{\"name\":\"Morgan Wilsmann\",\"@id\":\"https:\/\/publicknowledge.org\/#\/schema\/person\/a312938cf3bbc40e7d7ca33241e5fba5\"},\"headline\":\"The Censorship Alarm Is Ringing in the Wrong Direction\",\"datePublished\":\"2025-09-15T15:24:44+00:00\",\"dateModified\":\"2025-11-22T20:44:42+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\/\/publicknowledge.org\/the-censorship-alarm-is-ringing-in-the-wrong-direction\/\"},\"wordCount\":3116,\"publisher\":{\"@id\":\"https:\/\/publicknowledge.org\/#organization\"},\"image\":{\"@id\":\"https:\/\/publicknowledge.org\/the-censorship-alarm-is-ringing-in-the-wrong-direction\/#primaryimage\"},\"thumbnailUrl\":\"https:\/\/publicknowledge.org\/wp-content\/uploads\/2025\/09\/Congressional.png\",\"keywords\":[\"Content Moderation\",\"Free Expression\",\"Platform Regulation\"],\"articleSection\":[\"Insights\"],\"inLanguage\":\"en-US\"},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/publicknowledge.org\/the-censorship-alarm-is-ringing-in-the-wrong-direction\/\",\"url\":\"https:\/\/publicknowledge.org\/the-censorship-alarm-is-ringing-in-the-wrong-direction\/\",\"name\":\"The Censorship Alarm Is Ringing in the Wrong Direction - 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