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If Europe can control American speech, our liberties are at risk

by Kristen Waggoner, opinion contributor - 03/31/26 9:30 AM ET

AP Photo/Virginia Mayo

Who has power over your online speech? Ask most Americans that question, and they are likely to name tech giants like Meta, our elected representatives or federal agencies. Hopefully, some would mention our Constitution.

But few would agree to the idea that unelected bureaucrats in Europe can control what Americans see or say online. Yet that is increasingly a reality — and one that Elon Musk and X are challenging with a new lawsuit at the General Court of the European Union.

In a chilling attempt to enforce Europe’s Digital Services Act — a sweeping regulatory framework governing how “Very Large Online Platforms” moderate speech — the European Commission fined X $140 million, which it recently paid while the litigation is underway. Though enacted in Europe, the Digital Services Act is effectively global, as EU bureaucrats attempt to impose internet censorship on Americans and American companies.

The U.S. House Judiciary Committee confirmed as much after subpoenaing private documents from American social media companies. Platforms “generally have one set of terms and conditions that apply worldwide,” so European mandates are forcing changes to “worldwide” content moderation policies that “apply in the United States.”

What changes does it force exactly? Whatever Brussels decides.

The Digital Services Act requires tech platforms to prevent the spread of content that could pose “systemic risks,” such as “misinformation” and “hate speech,” but it leaves the terms undefined. It also requires platforms to account for the speech laws of all 27 EU member states. Anyone tracking Europe’s free speech erosion will see the problem.

For example, Finnish parliamentarian Päivi Räsänen was criminally prosecuted for nearly seven years for tweeting a Bible verse. Finland’s Supreme Court finally upheld the eventual acquittals on that specific charge and one other last week, but the justices found her guilty of “hate speech” for expressing her beliefs on marriage and sexual ethics in a 20-year-old church pamphlet.

Germany recently conducted raids targeting more than 170 individuals for “hate speech,” which included a man calling a politician an “idiot.”

In Ireland, a Catholic bishop was investigated over a homily. Britain arrests thousands annually for online posts.

In the U.S., all of this speech would enjoy First Amendment protection. But the European Commission doesn’t care. It is trying to aggregate Europe’s censorship laws and project them upon us here.

The penalty for noncompliance is severe — up to 6 percent of a platform’s global annual revenue. That gives companies an overwhelming incentive to err on the side of suppressing speech.

When Musk acquired Twitter (now X), he vowed to preserve free speech absolutely. Indeed, X has resisted regulatory demands for more restrictive moderation. We saw it, for example, in August 2024, when Europe’s Commissioner for Internal Markets threatened an “extremely vigilant” response over Musk’s plans to interview Donald Trump on X. The EU’s fine looks very much like retaliation for Musk’s defiant posture.

X’s lawsuit — which my legal organization is supporting — makes the case that the Digital Services Act violates the EU Charter of Fundamental Rights and the European Convention on Human Rights, both of which protect freedom of expression.

This lawsuit defends the rights of Europeans. It defends the national sovereignty of the U.S., testing whether foreign regulators can effectively overrule our constitution. It is also a defense of economic freedom.

Free markets depend on regulatory predictability and restraint, and the Digital Services Act offers neither. Its rules are expansive and subject to the whims of its enforcers. They distort competition and privilege those best positioned to absorb uncertainty and cost, disadvantaging emerging innovators just as technologies like AI open a new field of opportunity.

Worse, the Digital Services Act is only one piece of a new regulatory regime from the EU, also including sweeping sustainability and governance mandates on all companies operating in Europe. The policies are an attempt to reshape global markets in the image of EU bureaucrats.

The U.S. is founded on the idea that ordered liberty requires limits on government power, because rights come from our creator, not from the state. Our founding principles p