The First Amendment Cannot Stop Pavel Durov’s Arrest in America

The arrest of Pavel Durov in France last week offered yet another distressing sign for the dire state of free speech in the West. 

As we’ve repeatedly seen in the United States, parties that once dedicated themselves to free expression are now the leading proponents of “content moderation.” The largest newspaper in France – Le Monde – celebrated Durov’s arrest as a “defense of the rule of law rather than an attack on freedom of expression.” The Washington Post reported that “authorities detained Durov as part of a preliminary investigation that focused on the lack of content moderation on Telegram.”

But the French prosecutor’s charges against Durov show that his persecution is not just for freedom of expression; it is for enabling any activity beyond the reach of bureaucratic tyranny. Durov has been charged with twelve crimes, including “providing cryptology services aiming to ensure confidentiality without certified declaration” and five counts of “complicity” for what users posted on Telegram. 

Defenders of Durov, including Elon Musk and David Sacks on X, cited the paramount importance of the First Amendment in the United States, suggesting our Bill of Rights will serve as a bulwark against this looming global tyranny. Implicitly, they argue that the Framers’ guarantees will safeguard our liberties from the encroachment of the state.

But the recent examples of Steve Bannon, Julian Assange, Douglass Mackey, VDARE, Roger Ver, and their brazen persecutions debunk this theory at the outset. Mere words can do little to stifle the ambitions of the self-assured. The separation of powers, and its resulting checks and balances, is far more critical to preserve the liberties of the West. 

Even Facebook’s Mark Zuckerberg, possibly in advance of a court judgment against the Biden administration, has admitted to acquiescing to censorship demands. “In 2021, senior officials from the Biden Administration, including the White House, repeatedly pressured our teams for months to censor certain COVID-19 content, including humor and satire, and expressed a lot of frustration with our teams when we didn’t agree…I believe the government pressure was wrong, and I regret that we were not more outspoken about it. I also think we made some choices that, with the benefit of hindsight and new information, we wouldn’t make today.”

The Framers understood this, but our modern myths surrounding the Constitution abscond their concerns. Since World War II, Americans have elevated the Bill of Rights to a status of secular scripture, but most citizens would have had no familiarity with the term just a century ago. 

The following is not a pedantic history lesson. Enemies of liberty understand that the struggle is one of realpolitik and ascension to power. They are organized, monolithic, and increasingly global in scale. We cannot delude ourselves into believing that words – no matter how honorable their principles may be – can save us from our enemies’ tyrannical ambition. Rather, it is imperative that we develop alternative sources of strength, whether they be financial, informational, or militaristic, to preserve the liberties that our forefathers bestowed upon us. 

For one hundred and fifty years, liberty in the United States featured very little reference to the first ten amendments to our Constitution. 

The term “Bill of Rights” did not become popular until the 1930s, when the FDR Administration overhauled the American systems of federalism by arguing that it had the right to take any action that the “Bill of Rights” did not prohibit. 

The “Bill of Rights” was paid so little attention that the original document was housed in the basement of the State Department until 1938 and did not go on public display until 1952 (163 years after its drafting). 

Following World War II, the newly renowned Bill of Rights became cited as a source of American exceptionalism, a claim that a brief survey of international law could quickly debunk. 

The Chinese Constitution promises “freedom of speech, the press, assembly, association, procession, and demonstration” and assures that “all areas inhabited by ethnic minorities shall practice regional autonomy.” The Soviet Union’s Constitution guaranteed rights to “freedom of speech,” “freedom of the press,” and “freedom of assembly.” The Iranian Constitution professes to ensure “political and social freedoms.” 

The Framers would have understood these rights, as well as our Bill of Rights, to be mere “parchment guarantees.” Justice Antonin Scalia explained:

They were not worth the paper they were printed on, as are the human rights guarantees of a large number of still-extant countries governed by Presidents-for-life. They are what the Framers of our Constitution called ‘parchment guarantees,’ because the real constitutions of those countries—the provisions that establish the institutions of government—do not prevent the centralization of power in one man or one party, thus enabling the guarantees to be ignored. Structure is everything.

Liberty Versus the Consolidation of Power

Now, in France, we learn that lesson again. The Declaration of Rights of Man and of the Citizen, which describes “the free communication of thoughts and opinions” as “one of the most precious rights of man” offers no safety for Durov. He is a political prisoner, in jail for disobedience to the regime. 

From government to industry to public health, the enemies of liberty are increasingly global in scale. The Canadian truckers’ protest was a demonstration of the consolidation of their power. 

Three of the charges against Durov concern use of “cryptology,” meaning securing private communications in the digital sphere, which presents a direct affront to his enemies’ consolidation of power. It is nothing but math, a series of numbers in a configuration that foils the surveillance state. Nothing more. 

Musk, Sacks, and others dedicated to the preservation of liberty cannot afford to rest on the laurels of our First Amendment. Instead, we must act to create the cultural, social, and intellectual infrastructure that will allow us to maintain those freedoms. 

Math cannot be against the law. Science cannot be controlled from the center. Power should never be permitted to override the speculations and experiments of entrepreneurs and intellectuals. And yet that is precisely what is happening in today’s world. There is nothing more alarming to the powers-that-be than an individual with an emancipatory idea that can and should disrupt prevailing regime habits and ideas. 

All forms of centralized compulsion and control today stem from a revanchist ethos, whether from the right, left, or center. The efforts to prosecute freedom of speech are doomed to fail eventually.