I. German Idealism Embraces an Absolutist View of Human Dignity

The concept of human dignity has deep historical and religious roots.^{Footnote 24} But the works of Immanuel Kant are among the most prominent and influential philosophical treatments of the question of fundamental human rights.^{Footnote 25} Developed in response to the two dominant schools of moral philosophy prominent in the late eighteenth century, Kant fundamentally sought to bridge the divide between rationalism and empiricism.^{Footnote 26} The Kantian contribution to moral philosophy was to recognize that the empiricist school revealed the instrumental principles sought by the rationalist school.^{Footnote 27} Thus, the basic aim of Kant’s moral philosophy was to elucidate the fundamental principles that applied to humanity across all times and cultures.^{Footnote 28} The mutual respect commanded by such shared humanity creates the supreme limiting condition to personal freedom.^{Footnote 29} So limited, the individual is compelled to act “as to treat humanity, whether in thine own person or in that of any other, in every case as an end withal, never as means only.”^{Footnote 30} By extension, Kant finds that human dignity, as an objective end unto itself, must therefore constitute the supreme limiting condition on all subjective ends—establishing a universal and absolute law of humanity.^{Footnote 31}

Recognizing universal human dignity as the lynchpin of a moral political order,^{Footnote 32} subsequent thinkers like Georg Wilhelm Friedrich Hegel emphasized that a system of rights could not be fully recognized individually.^{Footnote 33} Rather, a moral political order required mutual self-consciousness—the absolute recognition of the inherent human dignity of a community.^{Footnote 34} Beyond the theoretical formality of universality described by Kant, rights must be codified through a cultural mechanism that infuses the Geist of society.^{Footnote 35} Mutual self-consciousness serves this role, infusing the essence, purpose, and product of the state.^{Footnote 36} Through this mechanism, the state becomes the embodiment of fundamental rights and human freedom.^{Footnote 37} Community, therefore, becomes a necessary pre-condition for the development of a just society—and places special emphasis on such socio-political manifestations in constructing such a society.^{Footnote 38}

In contrast to the liberal philosophy of theorists like John Locke or Thomas Hobbes, human dignity in a Kantian or Hegelian sense cannot be secured absent the development of supra-individual institutions whose communitarian impulses crystalize the dignity of the individual into a normative structure to protect human rights.^{Footnote 39} Abstract rights of freedom and property remain abstract unless formalized in a societal structure.^{Footnote 40} At the most basic level, the role of the state is to formalize the universal principles and thus protect the rights of the individual against the potential of abuse by his or her fellow man.^{Footnote 41} This philosophical posture alters the role of the state from the Lockean understanding by expanding the opportunity for positive rights—enforced by the state—to achieve maximal human happiness and flourishing.^{Footnote 42}

This fundamental desire to maximize human happiness leads naturally to a comparison of the German Idealist school with the utilitarian philosophy espoused by John Stuart Mill and Jeremy Bentham. Similar to Kant and Hegel, Mill’s philosophy embraces a form of communitarian awareness.^{Footnote 43} However, this communitarianism is not rooted in the universal values espoused by Kant, but rather by the shared benefit of the community’s collective interest.^{Footnote 44} In stark contrast to the duty-based position of Kant, utilitarianism represents a consequentialist approach to ethics.^{Footnote 45} Rather than recognizing the universality and primacy of human dignity as an end unto itself, Mill’s morality turns on the usefulness or worth of an action as determined by its utility.^{Footnote 46} Ultimately, the distinguishing feature of Kantianism is that the actions of an individual are morally determined by the relationship between the action and the corresponding right, rather than the individual and the corresponding outcome.^{Footnote 47}

II. German Idealism Imposes Positive Obligations onto the State and its Citizens to Act in Furtherance of Universal Norms

Beyond recognizing the existence and primacy of individual human dignity that is preserved through communitarian recognition, German Idealism—informed by both Kant and Hegel—moves beyond the liberal conception of fundamental rights by imposing positive obligations on both the individual and the community to act to preserve and further those rights.^{Footnote 48} Each joint in the communitarian superstructure of moral values is linked to a corresponding political right.^{Footnote 49} This bond “imposes an obligation on the state to ensure that it becomes an integral part of the general legal order.”^{Footnote 50} This deontological approach to moral philosophy is encapsulated by Kant’s Categorical Imperative—an objective, unconditional principle that the individual is obligated to follow.^{Footnote 51}

Conceptually, the rules that govern a society are distinct from the underlying moral principles, with the underlying principle commanding an overarching obligation for both the individual and the community.^{Footnote 52} Because the underlying principle is objective—and thereby obligatory—the formulation of this principle creates a command that necessitates action.^{Footnote 53} As applied to human dignity, this Categorical Imperative obligates individuals to reject any violation of human dignity and imposes a duty upon the state to protect human dignity even when the violation stems from private action.^{Footnote 54} Because the fundamental principles are the ultimate expression of rational thought, conflict between the rule and the principle cannot be rationally balanced; the obligation to the principle is reflexive.^{Footnote 55} Consequently, the development of a moral society requires the establishment of a hierarchy of principles built upon the primacy of human dignity and the positive duty to reinforce this hierarchy.^{Footnote 56}

I. The Basic Law Embraces the Deontological Principles of German Idealism

The Basic Law—as a document of political philosophy—embodies the theories of the German Idealists like Kant and Hegel.^{Footnote 61} This influence can be seen in the text’s first lines.^{Footnote 62} The fundamental principles espoused in the document “define a way of life to which the German people, as a nation, are committed.”^{Footnote 63} From a Hegelian perspective, this actualization of the German post-War Geist breathes moral life into the constitutional document.^{Footnote 64} To borrow a phrase from Austrian jurist Hans Kelsen,^{Footnote 65} the Basic Law represents the Grundnorms “ that govern and legitimate the entire legal order.”^{Footnote 66} Far from being a mere set of abstract principles, the Basic Law serves as a moral compass, directing the German state as it emerged from the horrors of World War II. This necessary connection between law and morality is often attributed to Radbruch, whose influential theory “serves as a sort of naturalist pressure release valve” against gross injustice.^{Footnote 67} In this substantive and directive posture, the Basic Law embodies the spirit of the Hegelian dialectic,^{Footnote 68} synthesizing the lessons learned during the late nineteenth and early twentieth centuries and enabling Germany to emerge from that period as a liberal, democratic state.^{Footnote 69}

The structure of the Basic Law lays out an inviolable hierarchy of principles that permeate German society and subject the generally positivist state to supra-positive notions of justice.^{Footnote 70} This order primarily affects public law.^{Footnote 71} But the communitarian nature of the Basic Law means that the hierarchy of principles is indirectly superimposed onto private law as well.^{Footnote 72} More than merely embodying a shared culture, the Basic Law integrates the fundamental values of the German people into a common consciousness—the very supra-individual structure called for by the Idealists.^{Footnote 73} This activation of moral principles within the constitutional structure is well-documented within the study of ontological security.^{Footnote 74} Indeed, these narratives “establish the foundation not only for what once was, but for what ought to be.”^{Footnote 75} As such, this re-anchoring of national identity upon Idealist moral principles encourages the German state to engage in affirmative acts in furtherance of these principles.

All political rights, in this context, are simultaneously preserved and limited by the architectonic moral principles that inform the Basic Law.^{Footnote 76} This interwoven network of rights and privileges gives the Basic Law its depth and force. As described by the late legal scholar and Federal Constitutional Court Judge Ernst-Wolfgang Böckenförde, the purpose of this linkage between political rights and moral principles “is aimed at realizing and fulfilling the value expressed in and through such rights.”^{Footnote 77} To achieve these lofty ends, the state and the citizens are subsequently obligated under this structure to not merely defend these principles, but to advance them whenever possible.^{Footnote 78} In doing so, the Basic Law advances “an objective ordering of values” upon not only German society, but upon their global interactions.^{Footnote 79}

II. The Deontological Element Distinguishes German Constitutional Law from the American Constitutional Tradition

The effects of this deontological philosophic tradition on German domestic affairs are well-documented—particularly with respect to two interrelated phenomena: Freedom of expression and militant democracy.^{Footnote 80} In both instances, the objective order of values prescribed by the Basic Law dictate the occasional suppression of what American scholars often see as fundamental liberty interests.^{Footnote 81} This tension between Germany and some of its fellow democracies reflects a conscious and deliberate choice on the part of German society to weigh the various social costs and benefits on a different scale.^{Footnote 82}

Germany’s stance toward the freedom of expression is in stark contrast with the American tradition. Article 5 of the Basic Law enshrines a broad conception of free speech: “Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures . . . there shall be no censorship.”^{Footnote 83} This first clause parallels similar American protections: “Congress shall make no law . . . abridging the freedom of speech, or of the Press . . . .”^{Footnote 84} While the freedom of expression in the United States is not absolute,^{Footnote 85} the protection is robust and scrutiny of laws abridging this fundamental right is strict.^{Footnote 86} Generally, beyond “[t]hose few categories of speech that the government can regulate or punish—for instance, fraud, defamation, or incitement,”^{Footnote 87} a restriction of speech must be narrowly drawn and serve a substantial interest to avoid running afoul of First Amendment protections.^{Footnote 88} The Supreme Court has consistently reaffirmed the “bedrock principle underlying the First Amendment”^{Footnote 89} that the government may not restrict speech simply because such speech is offensive or disagreeable.^{Footnote 90}

By contrast, the second clause of Article 5 immediately places freedom of expression in Germany within the broader communitarian framework: “These rights shall find their limit in the provisions of general laws, in the provisions for the protection of young persons, and in the right to personal honor.”^{Footnote 91} Under the Basic Law, the purpose of the state as a political entity is to “facilitate peaceful debates as well as solutions and ultimately decisions in accordance with procedural standards of argumentation and public discourse.”^{Footnote 92} This value of speech is thus balanced against any competing interests and can be overcome through a showing that the expressive speech’s harm to a higher fundamental principle outweighs the speech’s benefit.^{Footnote 93} However, such an analysis is not utilitarian in nature. Rather, the state action supports and maintains the freedom of humanity by hindering actions that themselves hinder the freedom of others.^{Footnote 94} Accordingly, for types of speech that harm others—like slander, libel, or antisemitism—the corresponding strength of the constitutional protection for that speech is inverted and an obligation arises to restrict that speech through direct state coercion to a degree necessary to maintain a maximal amount of human freedom.^{Footnote 95} Importantly, this balancing is not objective; the Federal Constitutional Court is generally more protective of speech that advances governmental interests.^{Footnote 96}

The obligations imposed by the Basic Law diverge from the American tradition most sharply over political expression. The legal superstructure of the German political system is often described as a militant democracy, one which obligates the State to actively oppose persons and groups who seek to use the rights and institutions enshrined in the Basic Law to subvert or destroy the democratic order.^{Footnote 97} This constitutional mandate, born from understandable political concerns facing West Germany during de-Nazification and the Cold War, persists as a sort of moral originalism, embracing the value determinations of the founding fathers of modern Germany and obligating state action in furtherance of said values.^{Footnote 98} Although the modern socio-political milieu of Germany is different than that of 1949, the militant nature of German democracy remains strong.

III. The Categorical Imperative Imbedded Within the Basic Law has Spill-over Effects on German Foreign Policy Where Such Acts Serve to Increase Ontological Security

As discussed in Section C.II above, the deontological nature of German constitutionalism has direct consequences on domestic politics that distinguish this feature from American constitutional traditions. This structural imperative burdening the state and its citizens, however, does not subside at Germany’s borders. Perhaps unintentionally, the Categorical Imperative imbedded within the Basic Law has supplanted nationalism with a self-assuring form of moral supremacy: Militant moralism.

The similarity of this term to the well-known—and previously discussed—militant democracy is intentional. However, the analogy is more abstract. By militant moralism, this Article does not suggest that the text of the Basic Law—taken literally—creates an explicit directive to the German state to advance the cause of human dignity beyond the traditional boundaries of the Westphalian nation-state. Nor, for its militant defense of domestic democratic norms, has Germany engaged in any sort of exportation of liberal democratic values akin to the United States’ invasion of Iraq in 2003.^{Footnote 99} Yet, the same structural imperative that empowers the German commitment to the liberal democratic order suffuses German foreign policy with deeply moralistic undertones rooted in the primacy—and universality—of human dignity.^{Footnote 100}

Militant moralism is, in a sense, an internal animating force behind the oft-studied Brussels Effect, whereby domestic laws and regulations are externalized through market mechanisms to establish globalized standards.^{Footnote 101} In looking to the internal motivations behind the European Union’s (EU) hegemonic regulatory scheme, Anu Bradford adopts a skeptical position advanced by then-Czech President Vlàclav Klaus that the EU’s global agenda is rooted in competitive concerns for domestic industries.^{Footnote 102} Specifically, Bradford points to the domestic interests of a small number of influential EU member states—Germany and France—as the preliminary source of this regulatory putsch.^{Footnote 103} By entrenching these domestic influences into EU legislation, the Brussels Effect then amplifies and globalizes these policy preferences.^{Footnote 104} Importantly, Bradford suggests that the hegemonic consequences of the Brussels Effect are both incidental and ancillary to this primary motivation.^{Footnote 105}

The deontological nature of the Basic Law suggests that, beyond these domestic economic concerns, at least some of the policy advanced by Germany in the EU and beyond is influenced by militant moralism. In advancing this position, Germany legitimizes its regulatory preferences by claiming that policies are normatively desirable based on the universality of the commanding underlying values.^{Footnote 106} This position is one that re-enforces Germany’s self-identity and increases its ontological security in the foreign policy sphere by giving this narrative extraterritorial effect.^{Footnote 107} This sort of moral posture gives structure to the German regulatory scheme, which is then amplified across the EU. Rather than establishing a de jure globalized norm of human dignity through international agreement, the spill-over effects of militant moralism encourage the same sort of de facto convergence of global regulatory policy advanced by Bradford.^{Footnote 108}

Overwhelmingly, the influence of militant moralism on German foreign policy is directed at the promotion of societal structures that are considered by liberal democracies to have positive social capital. The Federal Foreign Office emphasizes Germany’s commitment to democracy, the rule of law, and human rights as central pillars of their foreign policy.^{Footnote 109} A far cry from the nationalism and militarism that has defined much of its history, the modern German state takes an overwhelmingly antimilitarist approach to national security concerns—preferring diplomatic solutions to open conflict.^{Footnote 110} Unsurprisingly, there is little to no pushback from American scholars against these exercises of soft hegemony—perhaps because such values are shared between Germany and much of the English-speaking world. The impact of militant moralism on German foreign policy and the need for a new, holistic, and ontologically aware approach to dealing with these policy determinations is best illustrated when state power is directed at the demotion of societal structures that hinder human freedoms. As discussed below, the concentration of state action against undesirable speech—like hate speech and misinformation—is antithetical to the traditional liberty-centric values of the American political tradition which values the primacy of the freedom of expression.^{Footnote 111} Consequently, when moralistic policies are amplified and exported through the Brussels Effect or related phenomena, the clash between European and American law takes on distinctively geopolitical tones which require a conscious consideration of the ontological narrative driving those policies to effectively counteract.

I. NetzDG Defends the Deontological Values of Germany’s Militant Moralism

Faced with the proliferation of hate speech and radicalization on social media platforms, NetzDG was passed in October 2017.^{Footnote 112} Rather than establishing a public administrative body to regulate online speech, NetzDG is designed to co-opt the private administrative body within companies like Facebook and imposes a substantial burden on these private actors to remove unlawful content.^{Footnote 113} Under such a “regulated self-regulation” scheme, the brunt of costs is shifted to the social media companies, thereby reducing the financial obligation on the state.^{Footnote 114} The law, which applies to social media companies with more than two million domestic users, imposes harsh penalties for failing to remove unlawful content from their platforms.^{Footnote 115} NetzDG distinguishes between two types of content: (i) Manifestly illegal content and (ii) illegal content.^{Footnote 116} For manifestly illegal content, NetzDG requires providers to identify and remove the content within twenty-four hours of being reported.^{Footnote 117} For other unlawful content, the providers must remove the content within seven days.^{Footnote 118} In a departure from existing EU regulation, NetzDG modifies the actual knowledge requirement that immunizes social network providers from secondary liability into constructive knowledge with a twenty-four hour clock.^{Footnote 119}

Despite opposition from civil liberties groups and the European Commission,^{Footnote 120} NetzDG went into effect in January 2018.^{Footnote 121} This forced most major social media companies—including U.S.-based Facebook, YouTube, and Twitter—to alter their content moderation strategies.^{Footnote 122} In 2019, the Federal Office of Justice (BfJ) levied a €2 million fine against Facebook for underreporting complaints.^{Footnote 123} However, the threat posed by hate speech and radicalization only became more pronounced. Following the murder of Christian Democratic Union politician Walter Lübcke by a right-wing extremist who disagreed with Lübcke’s pro-refugee policies, the Bundestag introduced legislation to scale up the reporting requirements for providers and increase the enforcement power of the BfJ.^{Footnote 124} This attack, coupled with racially-motivated violence directed at immigrant communities in Halle an der Saale and Hanau, underscored the real world consequences associated with online hate speech.^{Footnote 125} In an effort to increase compliance, NetzDG was updated to increase the ease of reporting alleged content violations,^{Footnote 126} lower the threshold reporting requirements for social media providers,^{Footnote 127} as well as increasing the power of the BfJ in overseeing enforcement of the Act.^{Footnote 128}

Looking to the purpose and effects of NetzDG, the links between the law and the underlying moral values encased within the Basic Law become apparent. In identifying what qualifies as “unlawful content,” the Act cites various sections of the Criminal Code identifying speech which falls beyond the protections of freedom of expression.^{Footnote 129} Such balancing of the freedom of expression against the communitarian interests of the state is expressly endorsed by Article 5 of the Basic Law.^{Footnote 130} In defending the law’s intent and scope, scholars have argued that the perpetuation of hate speech threatens “the peaceful coexistence of a free, open, and democratic society.”^{Footnote 131} The rise of right-wing, anti-migrant speech in recent years has begun to challenge the very notions of communitarianism and universal human dignity that undergird the Basic Law. In this sense, NetzDG embodies an approach to protecting and promoting human dignity and preserving the democratic order. This determination is influenced by the dignity-oriented Basic Law and the concept of Informationelle Selbstbestimmung.^{Footnote 132} In combination, the rights of human dignity and informational self-determination create a moral super-structure that encourages the state to pursue the policy aims of NetzDG.

II. NetzDG Advances German Ontological Interests in a Multipolar Cyberspace at the Expense of American-Style Free Speech on the Internet

For its multifarious domestic effects, NetzDG has also sent ripples through the global content moderation space. In terms of scope and impact, NetzDG has become a poster child of content-based regulation.^{Footnote 133} Despite Europe's historically strong intermediary protections,^{Footnote 134} the implementation of NetzDG has resulted in the proliferation of intermediary regulatory schemes targeting illegal hate speech.^{Footnote 135} This is the latest development in what Jack Balkin has described as new-school regulation, whereby nation-states “threaten, coerce, or co-opt elements of the Internet infrastructure in order to get the infrastructure to surveil, police, and control speakers.”^{Footnote 136} These attempts to coax, cajole, or coerce compliance are guided by a philosophical framework that champions the globalization of fundamental human rights like human dignity and self-determination.^{Footnote 137}

The consequences of Germany’s deviation from European Commission guidance are most immediately felt within the wider European community. Since 2018, both France and Austria have adopted similar domestic regulations against hate speech.^{Footnote 138} In 2019, then candidate for European Commission President Ursula von der Leyden called for a new “Digital Services Act” (DSA) and a modernization of the e-Commerce Directive.^{Footnote 139} Since her election to the presidency, von der Leyden and other German officials have played a central role in drafting the DSA, which aims to require companies like Facebook and Google to increase the censorship of “vitriol, misinformation, and illicit content on their sites.”^{Footnote 140} The final text of the DSA, adopted in April 2022, embraced the spirit of NetzDG nearly word-for-word, implementing a centralized set of content-moderation compliance schemes against all internet intermediaries beginning in February 2024.^{Footnote 141} Beyond the EU, at least thirteen countries have adopted or proposed legislation modeled after NetzDG.^{Footnote 142} Taken in concert, these domestic and supranational trends within and across national regimes have positioned Europe as an influential hub for content moderation regulation—with Germany leading the way.^{Footnote 143}

The proliferation of NetzDG-style laws across the globe underscores the hegemonic draw of such regulation and increase the significance of Germany as a central player in the geopolitics of cyberspace. Although a presumption against extraterritoriality is an established norm of international law, the Brussels Effect amplifies and propagates NetzDG across the globe, effectively creating a unilaterally-established global norm.^{Footnote 144} The hegemonic consequences of NetzDG are best illuminated when contrasted against the United States’ best domestic equivalent, Section 230 of the Communications Decency Act.^{Footnote 145} In the United States, social network providers are immunized against any information shared on their platform.^{Footnote 146} Section 230 further protects companies from civil suit arising from any voluntary actions—taken in good faith—to restrict access to objectionable content regardless of whether such content is constitutionality protected.^{Footnote 147} Since its passage in 1996, Section 230 has represented the dominant approach to content moderation globally, reflecting a more general trend toward the least-restrictive regulatory scheme in cyberspace.^{Footnote 148} However, as Kenneth Waltz notes, unipolarity is “the least durable of international configurations.”^{Footnote 149} Ultimately, the unipolar moment^{Footnote 150} in cyberspace devolved into a largely bipolar framework between the liberal West dedicated to freedom of expression—as represented by the United States and the EU—against the authoritarian East—as represented by China—diametrically opposed to freedom of expression.

It is from this bipolar framework that NetzDG emerges as a radical departure from the historic approaches of the United States and the EU to content moderation. However, NetzDG does not go so far as to realign German interests in cyberspace with Chinese content moderation strategies. Rather, it positions German content moderation policy as an attractive alternative to either the American or Chinese approach. The emergence of this multipolar cyberspace is not incidental.^{Footnote 151} The structure and function of NetzDG effectively creates a global regulation, the validity of which is reinforced via the Brussels Effect.^{Footnote 152} Daphne Keller has suggested that the emergence of this multipolar system has the potential to “create an unprecedented imbalance in the Internet ecosystem” toward the global dominance of European—and by extension German—content moderation policies.^{Footnote 153} The passage of the Digital Services Act—itself an extension of the fundamental policy determinations of NetzDG—will further enable an unprecedented influence of German cyber-hegemony over the global Internet.^{Footnote 154}

The threat posed by this emergent multipolar space is not academic. Even within the limited time that NetzDG and similar anti-hate speech laws have been in effect, “calls to remove hate speech have quickly ballooned to cover expression that does not violate existing European law.”^{Footnote 155} Increasingly, these demands for cooperation reflect mounting pressures on platforms to alter their content moderation strategies in favor of global deletion.^{Footnote 156} This censorship creep, as described by Danielle Keats Citron, presents a real threat to the core American concept of freedom of expression.^{Footnote 157} Worryingly, authoritarian governments like Russia and Türkiye have adopted Germany’s content moderation policies as precedent for imposing their own highly restrictive moderation regimes aimed at stifling dissent.^{Footnote 158} A secondary consideration of NetzDG-style regulations is the impact of soft censorship on the democratic process.^{Footnote 159} As Derek Bambauer notes, shifting the regulatory burden onto private actors to enforce the government’s preferred speech limitations effectively insulates the decision making from any form of public accountability, increasing the potential for abuse.^{Footnote 160} In concert, the unopposed expansion of German content moderation in a multipolar cyberspace threatens the very fabric of the liberal democratic order and undermines American interests in a free and open Internet.

III. To Better Respond to NetzDG, American Scholars Must Account for Ontological Security When Challenging German Cyber-Policy

In response to the increasing cachet of Germany’s content moderation policies, most American scholarship discussing NetzDG has adopted a constitutional framework centered on the primacy of the First Amendment.^{Footnote 161} However, as Hannah Bloch-Wehba notes, imposing First Amendment standards on global platform governance assumes a unilateral approach to speech and privacy across the global Internet.^{Footnote 162} The emerging reality in cyberspace—contrary to this assumption—is one marked by multipolarity and great power politics.^{Footnote 163} To appropriately react to this evolution, content moderation scholarship in the United States would benefit by adopting a framework informed by international relations theory which is cognizant of the inherent desire for ontological security.

During the early days of the Internet, thought leaders sought to segregate and liberate cyberspace from the political considerations of real space in favor of the promise of self-regulation.^{Footnote 164} However, the intervening decades have belayed such efforts and underscored the influence of geopolitics on cyberspace.^{Footnote 165} Scholars like Jack Goldsmith, Timothy Wu, and Orin Kerr have all rejected cyber-exceptionalism to one extent or another.^{Footnote 166} Yet, American scholarship has not sufficiently adapted. Even scholars like Jennifer Daskal, who recognize the consequences of European content moderation schemes as a “new form of international rule-making,” do not take the subsequent step in adopting an equally international framework.^{Footnote 167}

The underlying motivation for Germany’s data protection policies is not merely the preservation of personal autonomy but is best understood as a strategic deployment of national and supra-national law to challenge American and Chinese hegemony in cyberspace. Far from a mere policy consideration, cyber policy is increasingly central to the practice of government.^{Footnote 168} By focusing on American-based technology companies, Germany and the EU have torn down the distinctions between cyber space and real space and erected burdensome challenges that limit the strength of these companies in the European market.^{Footnote 169} Given the rise of multi-national corporations that blur the boundaries between states, the reactionary movement of German and EU law targeting these corporations and moving toward a more balkanized Internet should be conceived as a geopolitical act reasserting the dominance of the German moral tradition embodied by the constitutional provisions of the Basic Law. However, because Germany and the EU have couched these expansionistic policies in moralistic terms as protectors of fundamental rights, these unilateralist actions—that would be seen as highly aggressive if undertaken by a geopolitical rival—are instead perceived as little more than an expression of policy preference.^{Footnote 170} Further, because American scholars have not taken the time to recognize how these actions reenforce German notions of self-identity rooted within the Basic Law, challenges and criticisms leveled against the German government have thus far been ineffective. Without understanding and accounting for these moral superstructures that reinforce militant moralism, it seems unlikely that American cyber-policy can prevail. As cyberspace continues to evolve as a multipolar system of competing regulatory and governance options,^{Footnote 171} recognizing and adopting a constructivist frame of analysis when discussing content moderation is critical to preserving and advancing American policy objectives.

Without such changes, American technology companies will continue to be repurposed to magnify Germany’s favored policy solutions on a global scale without effective American resistance.^{Footnote 172} As the United States debates the proper role of social media companies in democratic society and considers overhauling content moderation laws, American scholarship must consider the strategic rebalancing of cyberspace against not only the proposals of illiberal regimes like China and Russia, but also against our erstwhile European allies, lest our current blindness to the geopolitical implications of Germany’s militant moralism leave us helplessly outflanked in the race for digital supremacy.