At least a million people listened to Elon Musk’s conversation with former President Donald Trump live on X this past Monday. A private citizen engaging a powerful politician in a dialogue is a critical element of American free speech. Unlike most of the rest of the world, our system is built on the belief that more nonviolent speech — the good, the bad and the ugly — is the way we settle our differences and make decisions in our democracy. And whatever your politics, this is a good and normal thing — freedom is messy and such conversations are protected by the Constitution, no matter how truthful, misleading, hateful or valuable the conversation was to listeners.
Americans should celebrate our expansive view of expression and encourage more of these conversations in our society.
But that’s not how Thierry Breton, the European Union’s commissioner for internal markets felt.
Breton essentially threatened X with legal action if it failed to censor the Trump conversation.
Prior to the interview, Breton sent Musk a letter (which he also posted on X) in which he felt “compelled to remind” Musk that large American tech companies are required to comply with a series of rules and regulations under the sprawling auspices of the Digital Services Act (DSA). Right after making a perfunctory aside to say that free expression is important, Breton warned that X is responsible for failing to take appropriate “mitigation measures … regarding the amplification of harmful content.”
To be clear: “mitigation measures” means removing, demoting, limiting how content can be shared or searched for, or otherwise suppressing speech that “promotes hatred, disorder, incitement to violence, or certain instances of disinformation” as it is “considered illegal, according to national and/or EU law.”
Breton essentially threatened X with legal action if it failed to censor the Trump conversation to the satisfaction of E.U. bureaucrats. This is a full-throated attack on free speech in an American election.
While Musk has occasionally been an inconsistent champion of free speech rights, he was clearly right to move ahead with his interview. How American businesses react to European threats will shape how everyone engages with the online world in the future.
It is worth reading Breton’s letter for yourself to understand just how dangerous and brazen this act of attempted censorship by the E.U. is. It’s also a helpful demonstration of how the edicts put out by authorities in Brussels don’t just stay in Europe — they can have major implications for how American tech companies operate, what kinds of speech are allowed online and even how election campaigns are run in the U.S.
The E.U., via Breton, argued for the widespread suppression of a major American political discussion on X because they assert it may be illegal in E.U. member countries. While social media companies can and often do “geoblock” content so that it can’t be viewed in certain countries in response to legal demands from authorities, the idea that X users would not be able to tune in to a discussion with an American presidential candidate — because the E.U. says so — is more akin to the Great Firewall of China or other totalitarian efforts to limit what users can find online.
But Breton did not stop there, as he helpfully reminded Musk that X is already being prosecuted under the DSA for not sufficiently following E.U. rules. And since this interview with Trump was livestreamed to users in the E.U., Brussels was “monitoring” for content that might “incite violence, hate, and racism.” Thus, “any negative impact of illegal content … may be relevant in the context of the ongoing proceedings.”
U.S. citizens and American companies are increasingly affected by the rules written in Brussels — the so-called ‘Brussels effect.’
Nothing says “do what we want” quite like “and if you don’t, we will use it against you in our court of law where we are the judge, the jury, and the executioner and can penalize you by seizing up to 6% of your global sales.”
U.S. citizens and American companies are increasingly affected by the rules written in Brussels — the so-called “Brussels effect.”
Every company has to decide if their new product or new content moderation policy complies with a vast array of E.U. laws. Many companies will decide to simply create products and policies that comport with E.U. rules, even when offered to Americans. For example, the recent massive IT outage was so widespread in part because of an E.U. requirement that forced Microsoft to give CrowdStrike broad access to Windows. Other companies will deal with this through the costly complication of having significantly different products and business practices for different regions or by launching only some of their products in some locations. For example, in the past month, Meta and Apple both announced that they will not be releasing some of their new features in the E.U. because of concerns over the DSA. The censorial threat from Breton clearly extends the Brussels effect into American speech and elections. This is a demand from the E.U. to suppress core political speech regarding a U.S. election under penalty of law that could have major implications for Musk, X, Trump’s candidacy, American voters and Europeans who want to observe or be part of the conversation. It is worth remembering that such censorship is a double-edged sword. Consider this entirely plausible hypothetical: E.U. right-wing parties further build on their electoral gains and win a majority in the next E.U. election. They could easily turn the E.U.’s censorship arsenal against American progressives — issuing such warnings to social media companies when Democratic politicians speak online, declaring pro-Palestinian activists to be terrorists, or censoring pro-immigration groups as a threat to Europe. It is worth remembering that such censorship is a double-edged sword.
Rather than let American companies, users and expression be abused by E.U. diktats, the American government should be diplomatically pushing back to protect its citizens and their rights. And as evidenced by large tech companies already withholding their newest products from the E.U., it also may be only a matter of time before these companies simply walk away from Europe and its crippling and censorial regulations.
David Inserra
David Inserra is a fellow for free expression and technology at the Cato Institute. 
