Authored by Adina Portau via RealClearPolitics.ocm,

Last week, Elon Musk’s X launched a landmark legal challenge against a $140 million fine issued by the European Commission last December under the Digital Services Act, an EU censorship law. The case was filed at the General Court of the EU, which hears high-stakes challenges to EU regulatory and enforcement actions.

The commission claims the fine, the first to be issued under the DSA, was for alleged transparency and procedural breaches, all of which X denies. But the real reason the company was targeted is clear: X is a free speech platform, and Elon Musk refuses to implement online censorship in the EU and around the world.

This case, which ADF International is proud to support, concretizes the severe threat to free speech posed by the DSA. The EU law, which came into force in 2024, requires “very large online platforms,” like X, Meta, and Google (platforms with more than 45 million users per month), which operate or are accessible in the EU, to remove so-called “illegal content.”

“Illegal content” is defined in line with a plethora of anti-free speech legislation across EU countries, such as in Germany, where it is illegal to insult a politician (Section 188 German Criminal Code). The legislation additionally requires platforms to “mitigate” so-called “systemic risks,” such as “negative effects” on “civic discourse,” “electoral processes,” and “gender-based violence.”

Codes of conduct have also been added to the legislation regarding “disinformation,” “hate speech,” and guidelines on electoral processes and the protection of minors, resulting in 153 pages of additional regulations that were never voted on. Platforms face massive fines of up to 6% of global annual turnover for non-compliance with the DSA and can even be suspended in the EU.

The vague terms used in the legislation and codes of conduct are extremely broad and lack precise legal definitions, meaning they are ideal tools for the commission to censor disfavored views. And the commission’s reach extends far beyond Europe through the DSA.

A recent report from the House Judiciary Committee showed big tech platforms face immense pressure from the commission to set their global content moderation rules to censorial DSA standards. This means the EU law is censoring speech not just in Europe, but also in the United States and around the whole world.

The case of Finnish parliamentarian Päivi Räsänen demonstrates what DSA censorship will look like in practice. After six years of criminal prosecution, Päivi is awaiting a verdict from the Supreme Court of Finland for tweeting a Bible verse. She was prosecuted under the “War Crimes and Crimes against Humanity” section of Finland’s criminal code. Under the DSA, censorial laws like this will become the global baseline.

Since Elon Musk bought X and turned it into a free speech platform, Brussels has been clear about its hostility toward the platform. Former European Commissioner Thierry Breton issued a stark warning in 2023 stating: “You can run but you can’t hide … fighting disinformation will be legal obligation under #DSA. … Our teams will be ready for enforcement.” Former commission Vice President for Values and Transparency Věra Jourová added: “Twitter has attracted a lot of attention, and its actions and compliance with EU law will be scrutinized vigorously and urgently.”

In this context, it’s clear why the commission gave X the first-ever DSA fine last December. They were sending a message to all big tech platforms about what will happen to platforms that refuse to accept censorship.

That is what makes X’s legal challenge so important – they are fighting for the right of citizens around the world to freely express their views online. In this case, X is challenging the centralized powers given to the commission by the DSA, which it argues violate its right to due process and are contrary to the rule of law.

The commission is able to set the rules for content moderation, set up the infrastructure, launch investigations, and issue penalties under the DSA, all with no meaningful oversight. If this is allowed to stand, the EU will have the unchallenged ability to police the global public square, with dire consequences for online free speech.

Now the court has an opportunity to hold the commission to account. An oral hearing is expected in the case, potentially by the end of 2026, and the subsequent ruling will affect how all big tech platforms are moderated by the DSA. X is arguing for the fine to be withdrawn, and if the basis for the fine is found not to be compliant with other EU laws, specific provisions in the legislation could be annulled.

This case is the first ever challenge of the commission’s bid to become a global censor. The outcome matters deeply for the free speech rights of billions of people around the world.