In the digital age, the management of online content and the moderation of user-generated posts have become critical challenges for social media platforms. With the recent Israel-Hamas conflict serving as a backdrop, top European regulator Thierry Breton issued a stern warning to tech giants like Meta, TikTok, and X (formerly Twitter), urging them to remain vigilant against disinformation and violent content related to the conflict. However, the approach taken by European regulators highlights a fundamental difference between Europe and the United States when it comes to content moderation.
Threats of penalties and potential investigations were among the core messages conveyed by Commissioner Breton, underscoring the significant impact non-compliance with the region’s rules could have on businesses under the Digital Services Act. This type of warning goes beyond what would be possible in the U.S., where the First Amendment protects various forms of abhorrent speech, preventing the government from stifling it. The U.S. government’s recent efforts to combat election misinformation and COVID-19-related falsehoods have even become the subject of a legal battle brought forth by Republican state attorneys general, alleging the Biden administration’s coercion of social media companies to remove certain posts exceeds its constitutional boundaries.
The First Amendment’s strong protections pose a challenge in addressing hate speech and disinformation in the United States. Unlike Europe, the U.S. lacks a legal definition of hate speech or disinformation, making it difficult to impose penalties specifically targeting them. Kevin Goldberg, a First Amendment specialist at the Freedom Forum, explains that while narrow exemptions exist, such as incitement to lawless violence, the provisions of the Digital Services Act would likely face constitutional hurdles in the U.S. Consequently, the U.S. government cannot exert the same level of influence on social media platforms as EU regulators currently do in addressing conflicts like the Israel-Hamas situation.
The absence of hate speech or disinformation as punishable offenses under the U.S. constitution reflects the unique interpretation and application of the First Amendment. In the U.S., government officials face constraints in leaning on social media platforms to take action against objectionable content. Christoph Schmon, international policy director at the Electronic Frontier Foundation (EFF), views Breton’s calls as a stern warning to platforms, indicating that the European Commission is closely monitoring content moderation practices.
The Digital Services Act places the responsibility on large online platforms to establish robust procedures for removing hate speech and disinformation while considering concerns for free expression. Non-compliance with these rules could result in fines of up to 6% of a company’s global annual revenues. However, the U.S. government’s ability to issue penalties poses potential risks. David Greene, Civil Liberties Director at the EFF, emphasizes the importance of distinguishing government requests from enforcement threats or punitive actions. The requests issued by New York Attorney General Letitia James to various social media sites demonstrate an attempt to strike a balance between urging action and avoiding the imposition of penalties.
It remains uncertain how European regulations and warnings will impact content moderation practices both within the region and globally. Goldberg notes that social media companies have already confronted restrictions on allowable speech in different countries, suggesting that they may limit the implementation of new policies to Europe. Nonetheless, the tech industry has historically adopted measures such as the EU’s General Data Privacy Regulation (GDPR) on a wider scale. Goldberg suggests that individual users should have the option to adjust their settings to exclude certain types of content that they prefer not to be exposed to, emphasizing the importance of user autonomy.
The issue of content moderation and the balance between free expression and the regulation of objectionable content continues to pose complex challenges in the digital landscape. While European regulators leverage stringent regulations to combat disinformation and hate speech, the United States grapples with the constraints imposed by the First Amendment. The differing approaches highlight the complexities of managing online content and the need for social media platforms to handle these challenges responsibly and with respect for individual rights and freedoms. As the digital world evolves, finding the right balance remains an ongoing endeavor.