Hypocrisy doesn’t nullify J.D. Vance’s claims about Free Speech in Europe

In February, on his first foreign trip as U.S. Vice President, J.D. Vance shocked attendees at the Munich Security Conference by denouncing that in Europe “free speech… is in retreat”.

At the time, most media coverage focused on Vance’s blatant hypocrisy. After all, he serves in a U.S. administration that actively deports and silences university students like Mahmoud Khalil, whilst attacking law firms, media outlets, and universities that challenge its policies. This criticism was valid. Yet, it became a convenient shield for European governments to avoid serious self-reflection.

The uncomfortable truth is that Vance was right about Europe’s free speech crisis – even if he himself has very limited moral authority on the matter.

Europe’s modern legal framework is built on the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR). Both guarantee freedom of expression, but not as an absolute right.

Historically, narrow restrictions have existed on speech, limited typically to clear harms such as national security threats, direct incitement to violence, child pornography and serious defamation or libel. This approach is broadly consistent with John Stuart Mill’s harm principle: only restrict speech to prevent concrete, measurable harm.

But over the past two decades, as extremism has risen and social media has amplified speech, European governments have expanded these restrictions dramatically. The result is a patchwork of laws that punish subjective concepts like ‘offence’ or ‘hatred,’ eroding the very foundations of democratic debate.

These laws incentivise groups to claim offence strategically, weaponising legal systems to silence opponents. This dynamic creates a chilling effect on public discourse, narrowing the range of acceptable debate. Ideas are often silenced not because they are dangerous, but because they are unpopular or uncomfortable.

It is crucial to distinguish here between having a right to offend and possessing a duty to do so. Free speech guarantees individuals the right to express views that others may find offensive – but it does not obligate anyone to be gratuitously provocative or insulting. Exercising this right responsibly means recognising that some offence is inevitable in a pluralistic society where diverse worldviews clash.

However, there are moments when offending becomes a civic duty, particularly when powerful institutions, governments, or religious authorities seek to place certain ideas or beliefs beyond criticism. In such cases, the very act of speaking freely – even at the cost of offending – is essential to preserving open debate and preventing the emergence of intellectual taboos.

This principle was famously articulated after the Charlie Hebdo massacre: while no one is required to publish cartoons mocking religion, society as a whole must defend the ability to do so. Without a willingness to occasionally offend, free speech becomes a hollow formality, slowly eroded by the demands of those who claim perpetual victimhood. In other words, offence should not be the goal, but neither should its avoidance become a tool of censorship.

The UK offers a clear example of this troubling trend of criminalising all offensive speech. Successive laws now criminalise online speech deemed ‘grossly offensive’ – a term so vague and subjective that no one can clearly define it. Its effect was instantly corrosive: with content reported by police increasing exponentially in the following years, and, by 2024, arrests totaling an average of 30 people per day for online comments in the UK.

Some cases would be almost comical if not for the fact that they are true, such as a couple arrested over WhatsApp messages criticising their daughter’s school. But others, like Lucy Connoly’s highly publicised trial, highlight the difficulty of tensions.

Connoly, a 41-year-old mother, received 31 months in prison for an undeniably abhorrent but emotionally charged tweet that was deleted just three and a half hours later. Violence was neither likely nor imminent as a direct result of her tweet, making the sentence grossly disproportionate. Moreover, the choice of a long custodial sentence over a community service charge was excessive, especially when petty criminals like shoplifters are either not arrested at all or routinely released without charge.

In the US, the First Amendment offers far stronger protections than in the UK. Under the Brandenburg test (Supreme Court, 1969), speech can only be criminalised as incitement to violence if it is intended and likely to produce imminent lawless action. Connoly’s tweet would never meet that threshold.

Public anger over Connoly’s case intensified further when Labour councillor Ricky Jones was caught on video calling for counter-protesters to “cut the throats” of anti-immigration protestors – a statement far closer to Brandenburg’s threshold. Yet Jones was acquitted even under the UK’s looser standards for incitement.

Though the two cases are not identical, they have, alongside other analogous cases, fostered a widespread perception of ‘two-tier policing’ from the Labour government. Many Britons now feel certain groups receive protection while others are punished harshly for far milder offences. Whether or not this perception reflects any real systemic bias, it has been deeply damaging to public trust and has driven more citizens toward extremist groups, deepening polarisation.

It must also be said at this point that, even if J.D. won’t admit it, the erosion of free speech is not solely a right-wing phenomenon. Multiple European governments, most notably Germany and the UK, have also responded draconically to largely peaceful Palestinian protests.

In the case of Palestine Action in the UK, the vandalism of RAF property at Brize Norton by Palestine Action was indeed unlawful and wholly deserving of strict prosecution. The same, of course, applies to the plethora of criminal damage members of the group have perpetrated in the past – and those individuals involved must be met with the full force of the law. 

However, the UK government’s decision to designate Palestine Action as a terrorist group was both arguably both politically incompetent and disproportionate. Starmer’s approach instantly catapulted the group into the spotlight, generating both sympathy and disgust and above all, much publicity – a classic Streisand effect. 

The arrest of nearly 890 peaceful protestors – virtually none of whom participated in the group’s repeated acts of criminal damage – is deeply troubling and risks undermining the fundamental right to protest. This is not an isolated concern: legislation such as the Police, Crime, Sentencing and Courts Act 2022 has already curtailed the ability to organise and participate in peaceful demonstrations, illustrating how governments can slowly chip away at civil liberties under the guise of maintaining order. These precedents must be challenged now, as the consequences of handing such a power to governments could be dire if used for far more nefarious means in the future.

This should serve as a warning to progressives: those same tools you use to silence ‘far-right extremists’ can just as easily be turned against you, too.

In this, the UK is far from alone. Across Europe, below are just a few of the numerous laws which have produced serious miscarriages of justice or exacerbated the very problems they aim to solve:

• Germany criminalises insulting politicians. For example, in 2018, a man was prosecuted for calling a politician an “idiot” on Facebook under Section 90 of the Criminal Code, which protects public officials from insult.
• Spain retains lèse-majesté laws. In 2021, rapper Pablo Hasél was imprisoned for insulting the monarchy in his songs and tweets.
• Austria maintains blasphemy laws. Section 188 of the Austrian Criminal Code penalises disparagement of religious doctrines, such as a 2011 case where criticisms of the Prophet Muhammad’s 9-year-old wife led to a successful prosecution.
• Holocaust denial laws remain widespread in Europe. Though well-intentioned – meant to protect the memory of the Holocaust’s horrors and to help prevent any recurrence – they can backfire by drawing attention to extreme, ahistorical ideas and drive conversation underground, where such views often spread unrestrained by the challenge of proper public debate.

A decade after the Charlie Hebdo massacre, the rise of religious hatred laws has become deeply troubling. Instead of defending free expression, many democratic governments have capitulated to intimidation, creating a dangerous precedent: extremists learn that violence is an effective tool for silencing dissent. These laws reward outrage, encouraging radicals to escalate threats and violence whenever they encounter speech they dislike.

This dynamic was vividly on display in 2023, when Denmark passed a law criminalising the desecration of any holy text after a widely circulated video showed a man burning a Quran in neighbouring Sweden. Although the act occurred within Sweden, it sparked violent protests across several Muslim-majority countries, leaving more than a dozen people dead.

A similar pattern unfolded in 2012 with the Innocence of Muslims YouTube film, which provoked riots and killings worldwide. By punishing the speaker rather than those committing violence, governments effectively engage in a form of victim-blaming and empower what is known as the Heckler’s Veto – where those willing to respond with violence gain the power to dictate the boundaries of acceptable speech.

The result is an uneven system where some religions receive far greater protection than others. Christianity, for instance, whose adherents commit far fewer acts of terrorism per capita, is routinely subject to criticism and even mockery without comparable legal shielding. The prosecution of Finnish MP Päivi Räsänen, who was put on trial merely for quoting Bible verses about homosexuality, starkly illustrates the inconsistency in both the content and application of these laws. Instead of promoting harmony, these policies risk entrenching double standards and eroding the very principles of free expression they were meant to safeguard.

The rise of social media has also shifted much of the censorship burden from governments to private tech companies, spurred by sweeping regulations in Europe:

The most heinous domestic example is Germany’s NetzDG (2018), which requires platforms to remove ‘manifestly illegal’ content within 24 hours or face fines of up to €50 million. On the inter-jurisdictional stage, the EU Digital Services Act (DSA, 2023) was passed to expand something akin to the German model, with fines reaching up to 6% of a company’s global revenue.

Because there are no penalties for excessive censorship, platforms are incentivised to overremove content rather than risk fines.

Additionally, because the definitions of ‘hate speech’ or ‘offensive content’ are subjective, over-removing becomes mass removal on a gargantuan scale. This has led to a surge in takedowns, with no transparency or recourse for users. In effect, European governments have outsourced censorship to unelected tech companies, narrowing public discourse while evading direct accountability.

In conclusion, the current trajectory for free speech in Europe is bleak but not irreversible. To preserve democratic norms, Europe must act decisively:

1. Decriminalise vague hate speech laws by removing subjective offences – such as those in the UK’s Communications Act or Germany’s NetzDG inter alia – that are predicated on notions of personal ‘offence’ or ‘hatred’ from the legal system.
2. Emulate the American First Amendment model, protecting free expression as a fundamental right, limited only by direct incitement to violence or harassment.
3. Reform online regulation to balance harm prevention with transparency and due process. Social media companies should moderate content voluntarily, with clear rules and accountability to users – not state mandates.
4. Promote competition among platforms to encourage innovation and healthy discourse, while regulating monopolistic practices that currently stifle consumer choice and thus market forces for social media apps.

Contrary to popular fears, this would not necessarily turn public discourse into a cesspit of hate. Instead, it could create a market of ideas, where the best arguments win out and toxic content can be addressed without state coercion. Without such reform, Europe risks sliding further toward a digital authoritarianism that could one day resemble even China’s Great Firewall, handing a clear propaganda victory to the world’s authoritarian regimes.

The lesson from JD Vance’s recent criticisms of Europe is not merely about the hypocrisy of a U.S. administration that restricts speech at home while criticising others abroad. It is about the substance of the critique: Europe has strayed from the Enlightenment tradition of thinkers like John Stuart Mill and Thomas Jefferson, replacing open discourse with overcriminalisation and state-enforced conformity.

This has not solved the challenge of extremism. In fact, it has worsened it – fuelling resentment, driving individuals to extremist movements, and weakening trust in democratic institutions.

If Europe is to preserve its democratic foundations, it must return to a classical liberal approach: minimal restrictions on speech, limited only to clear, objective harms such as direct incitement to violence. Anything less risks strangling public discourse and deepening the political crises now facing the continent.