On Oct. 4, the Council of the European Union (EU) approved the new Digital Services Act (DSA). The EU’s new law regulates social media company liability for user posts containing content prohibited under the laws of EU member states—such as hate speech, incitement to terrorism, and child sexual abuse. The DSA has been lauded as a “gold standard” for regulating social media platforms and protecting users. Despite this praise, significant concerns about over-censorship and enforcement overreach remain.
Less attention has been paid, however, to the ways in which the DSA opens the door to renewed conflicts over global standards on speech. Approval of the new EU legislation came within a week of a U.S. federal appeals court decision upholding a Texas law that prevents social media giants from removing user posts based on viewpoint, teeing up a circuit split almost certain to be reviewed by the U.S. Supreme Court. The DSA’s passage also came less than a day after the Supreme Court agreed to hear a case about Section 230 of the Communications Decency Act, the federal law that broadly shields social media companies from liability for content on their platforms. Regardless of how these cases turn out, they are an important reminder of just how different the United States is from Europe (and the rest of the world) when it comes to freedom of expression. The EU’s and United States’ approaches represent sharply divergent views of the benefits and risks of speech regulation—one highly skeptical of government intervention, the other acutely aware of the concrete harms of inciting and discriminatory speech.