We learned on Friday that two American citizens, Elon Musk and Linda Yaccarino, who also happen to be among the most prominent business figures in the country, are now facing possible personal criminal liability in a French court for their role running an American platform, lawfully, under American law.
Congress must intervene.
Neither Musk nor Yaccarino is worthy of Congress’s attention because they are prominent. They are worthy of that attention because they are Americans, much like my American clients. My clients are several other American companies, most notably 4chan, who have had their senior management threatened with penalties including fines and imprisonment by the UK for broadly similar reasons. As with X, my clients’ speech and conduct is also perfectly legal in the United States.
The factual record on the U.S. side already supports the proposition that France’s prosecution of these two Americans is not something the United States is willing to facilitate. The DOJ flat out denied a mutual legal assistance request on First Amendment grounds a couple of weeks ago. Whatever the French might think, the U.S. doesn’t think that the French law enforcement request is even worth serving, on public policy grounds.
The natural response to all of this from skeptics is that the French criminal process will run its course and the three French investigative judges, independent as they are, will eventually dismiss the case. That may well be true. It may also not be true. But it misses the point.
We need Congress because foreign countries are doing things like this all the time, as a matter of routinely seeking to project their censorship laws on U.S. soil, and only Congress has the power to stop it. A favorable outcome in any one French, or British, or Brazilian, or Australian proceeding does not change the structural fact that American citizens and companies are being routinely subjected to foreign criminal and regulatory processes for conduct which is perfectly lawful where they live and work. Namely, America.
Some have asked, given the Trump administration’s evident hostility to European censorship and the State Department’s willingness to impose visa bans on foreign censors, why a legislative response is needed at all. The honest answer is that the administration thinks trade deals can fix the problem. My assessment of that strategy – which has been tried and continues to fail – is that it drastically underestimates how entrenched the web censorship project has become in Europe. America needs strong shield laws to deter foreign aggression.
Trade leverage, while useful, is temporary, relies on the Executive Branch to wield it, is liable to be traded away for other concessions on unrelated economic matters, and will disappear with the arrival of a new administration at some future date. Statutory protection, by contrast, is durable and can be wielded by any private attorney on behalf of any American client at any time without requiring any federal government attention at all. Which is precisely why statutory protection will work.
As my regular readers will know, I first came up with a proposal for a shield law, with the working title “the GRANITE Act,” right here on this blog in October. That proposal was converted into actual shield legislation, the Wyoming GRANITE Act, that would solve this for every American. The Wyoming GRANITE Act drafting team, consisting of myself, Colin Crossman, and Rep. Daniel Singh, provided copies of that legislation to Congress back in November.
The Wyoming GRANITE Act passed the Wyoming House 46-12 but ran out of legislative time in the Wyoming Senate in this year’s short budget session. (The bill is being taken up as an interim topic and will be back as a committee bill in 2027).
We were early when we first proposed this bill for Wyoming’s consideration in January. The evidence file for this type of intervention is growing steadily thicker, and this latest incident with Musk and Yaccarino, in my view, only validates our proposed approach.
That approach has four components:
- A civil liability shield that explicitly codifies existing judge-made law that protects Americans from the enforcement of foreign censorship orders;
- A statutory prohibition on U.S. government cooperation with foreign censorship orders that target constitutionally protected speech;
- A statutory bar on extradition for conduct that is constitutionally protected speech; and
- A cause of action against foreign sovereigns who target Americans for constitutionally protected speech with a high statutory damages floor ($1 million or the maximum threatened fine, whichever is greater), and an exception to foreign sovereign immunity for that conduct.
A foreign country will think long and hard before trying to censor an American if any attempt to do so comes with a potentially multimillion dollar price tag.
The reason we came storming out of the gates with the Wyoming GRANITE Act rather than letting it get chewed on for a couple of years by think-tanks is because
- having done this work for nearly a decade, we understand this problem very well; and
- foreign censorship is accelerating, not receding. The longer the United States delays its response to foreign censorship regimes with a counter-regime of our own, the more damage these foreign countries will be able to inflict, during that time, on freedom of expression on the Internet.
Federal courts regard infringement of First Amendment rights, for any length of time, as an irreparable injury; so too should Congress.
We are confident the evolving factual record will eventually make the case for our proposal, if it has not done so already. Each successive foreign enforcement action against Americans, including this week’s threatened French indictment of Musk and Yaccarino, confirms the diagnosis and underscores the legislative need.
Congress should introduce a federal equivalent of the GRANITE Act. Congress should do so immediately. The factual record, being developed by the House Judiciary Committee and, now, out in the open, is more than sufficient. There is political alignment between the legislature and the Administration. The threat of foreign censorship is real and escalating.
The only thing that remains to be seen is America’s response.
