If you’re going to cross an ocean to tell Americans what speech they can and can’t allow, the least you can do is not trip over your own jurisdictional nonsense on the way in.
Ofcom, the UK’s media regulator, which has lately decided to try and become an international speech cop, managed to do exactly that.
But when the regulator began sending enforcement letters to small US platforms under its sweeping online censorship law, the Online Safety Act, it probably didn’t expect to trigger a constitutional ambush.
But that’s exactly what it got.
Preston Byrne, one of attorneys representing 4chan, Kiwi Farms, and two other American companies, said Ofcom had been sending “frankly asinine letters under English law.”
His clients, he explained, “are entirely American. All of their operations are American. All of their infrastructure is American, and they have no connection to the UK whatsoever.”
Despite this, Ofcom threatened the companies with “a £20,000 fine plus £100 daily penalties for 60 days thereafter.”
Byrne responded to Ofcom’s pressure by filing a federal lawsuit in Washington, D.C.
The lawsuit was designed not only to challenge Ofcom’s jurisdiction but to force a contradiction into the open.
Byrne said the purpose of the lawsuit was threefold. One, to show the global censors that the resistance in the United States is now prepared to fight back, and they don’t have freedom of action.
Two, to assert hims client’s claims and defenses in a US court, and make the argument in front of a US federal judge.
And the third one was to provoke Ofcom into “doing something stupid, which is exactly what they did.”
After the case was filed, Ofcom sent what Byrne called “a 40-page letter of tremendous length, which is deeply unserious.”
Ofcom’s written response delivered exactly what Byrne says was needed: an explicit admission that Ofcom doesn’t “think US law applies on US soil and that they’re going to use [the argument of] sovereign immunity.”
This was more than a legal contradiction; it was a political one that directly undercuts the British government’s public assurances.
“This rather undermines the British government’s assertions that it’s made time and again, including to the President, to his face, that the British government is not using its sovereign power to censor American citizens,” Byrne said.
In its official notice to 4chan, Ofcom made an extraordinary admission which, in trying to assert its authority, effectively undercut its entire legal position.
The regulator wrote: “We also note 4chan’s claim that it is protected from enforcement action taken by Ofcom because of the First Amendment to the US Constitution. However, the First Amendment binds only the US government and not overseas bodies, such as Ofcom, and therefore, it does not affect Ofcom’s powers to enforce the Act in this case.”
This reveals the fundamental flaw in Ofcom’s claim to authority over American companies.
By asserting that the First Amendment “binds only the US government,” Ofcom admits it stands entirely outside the US constitutional order, yet it simultaneously claims the right to enforce UK speech law against US entities operating solely on US soil.
Ofcom cannot have it both ways: it cannot disclaim the reach of US law while insisting that British law somehow extends across the Atlantic.
If the First Amendment has no force on Ofcom’s actions in the United States, then neither does the UK’s censorship law, the Online Safety Act, which has no legal effect beyond the UK.
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