Speaking of the First Amendment: Will We Allow the German Government to Censor American Speech?

European flags in front of the European Commission Headquarters building in Brussels, Belgium.

The European Union’s Digital Services Act (DSA) doesn’t just have teeth – it has saber-toothed razors.
 
The law, in effect since 2023, imposes draconian content moderation efforts on (mostly American) social media companies, threatening U.S. firms with fines of up to 6 percent of their global revenues. Worldwide fines of this magnitude – again, of revenues, not profits – could easily wreck companies with even the highest valuations.
 
To assess what content is impermissible, the EU relies on “trusted flaggers” – people who recommend content worthy of removal – in other words, censorship. As a report from the House Judiciary Committee on the DSA shows, these European content moderation decisions can also be enforced worldwide.
 
House Democrats criticized the majority HJC report. These Democratic members quoted a European expert saying that trusted flaggers have “no magic delete button.” They assert that platforms themselves would still decide whether to remove the flagged content.
 
John David Rosenthal of Law & Liberty responds:
 
“Regrettably, it is obvious from these remarks that the Democratic members have not done their due diligence on the subject … the ‘trusted flaggers’ are not individuals but rather organizations that are supposed to have relevant expertise in certain areas of the law. 
 
“In some cases, they are prima facie uncontroversial even from an American perspective, since their areas of specialization involve laws that are largely identical on both sides of the Atlantic … (A full list of the 43 ‘trusted flaggers’ named thus far is available from the European Commission here.)
 
“It’s another matter when their area of expertise is speech crimes. Ironically, the expert source quoted by the Democratic members – ‘Trusted flaggers do not have a magic delete button’ – is Managing Director of precisely one such organization: Josephine Ballon of the German organization HateAid. 
 
“In June, the German government – more precisely, the German telecommunications regulator, the Bundesnetzagentur – named HateAid as a ‘trusted flagger.’
 
“The Bundesnetzagentur (or “Federal Network Agency”) serves as Germany’s national DSA implementing authority or ‘Digital Services Coordinator’ (DSC). Moreover, HateAid was not only appointed by the German government, it is also funded by it. According to data in the German government’s Lobby Registry, it received nearly €1.3 million in support from two different government ministries in 2024, for instance.
 
“If Americans would not regard ‘flagging’ of speech for removal by an organization that is appointed and funded by the American government as anything other than government censorship, why should they regard it as something else when the organization is funded and appointed by the German government?” ​

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