Free Speech Versus the First Amendment
The digital age has widened the gap between the judge-made doctrines of the First Amendment and the practical exercise of free speech. Today, speech is regulated not only by territorial governments but also by the owners of digital infrastructure. This has made First Amendment law less central and the private governance of speech more central.
When the free speech interests of digital companies and their end users conflict, the major beneficiaries of First Amendment rights are likely to be the former and not the latter. Digital companies will try to use the First Amendment to avoid government regulation, including regulation designed to protect the free speech and privacy interests of end users.
In response, internet reformers on both the left and the right will attempt to de-constitutionalize internet regulation. They will offer legal theories designed to transform conflicts over online speech from questions of First Amendment law into technical, statutory, and administrative questions. In the United States, at least, de-constitutionalization is the most likely strategy for imposing public obligations on privately-owned digital companies. If successful, it will make the First Amendment less important to online expression.
The speed and scale of digital speech have transformed how speech is governed. To handle the enormous traffic, social media companies have developed algorithmic and administrative systems that do not view speech in terms of rights. Accompanying these changes in governance is a different way of thinking about speech. In place of the civil liberties model of individual speech rights that developed in the twentieth century, the emerging model views speech in hygienic, epidemiological, environmental, and probabilistic terms.
Algorithmic decisionmaking and data science also affect how people think about free expression. Speech becomes less the circulation of ideas and opinions among autonomous individuals and more a collection of measurable data and network connections that companies and governments use to predict social behavior and nudge end users. Conceived this way, speech is no longer special; it gets lumped together with other sources of measurable and analyzable data about human behavior that can be used to make predictions for influence and profit.
Meanwhile, the speed and scale of digital expression, the scarcity of audience attention, and the proliferation of online propaganda and conspiracy theories have put increasing pressure on the standard justifications for freedom of speech, including the pursuit of truth and the promotion of democracy. The gap between the values that justify freedom of speech and what the First Amendment actually protects grows ever wider.
In response, some scholars have argued that courts should change basic First Amendment doctrines about incitement, defamation, and false speech. But it is far more important to focus on regulating the new forms of informational capitalism that drive private speech governance and have had harmful effects on democracy around the globe.
The digital age has also undermined many professions and institutions for producing and disseminating knowledge. These professions and institutions are crucial to the health and vitality of the public sphere. Changing First Amendment doctrines will do little to fi x them. Instead, one must revive, reestablish and recreate professional and public-regarding institutions for knowledge production and dissemination appropriate to the digital age. Th at task will take many years to accomplish.
