12 Contemporary Free Speech Issues

Emerging Problems

Two emerging problems for free speech are noted here, though they haven’t yet led to specific cases, and may not, given current doctrine.

First, the internet, and social media, in particular, have dramatically lowered barriers to collective action. In “Federalist #10,” Madison famously argued that a large nation would have a multiplicity of interests that would not easily be able to coordinate across long distances. Potentially harmful factions (defined by Madison as a group whose aims would harm the public as a whole) were thus limited in their ability to organize, and individuals with anti-social or dangerous views would be geographically isolated.

This is no longer true. Admittedly, lowering barriers to collective action can be good or bad—social media, for example, can make it easier for individuals to organize or protest on behalf of their interests or rights, in the finest tradition of democracy. At the same time, however, social media also greatly enables conspiracy theorists and violent radicals. It’s hard to imagine the January 6^th, 2021 attacks on Congress occurring without social media, which allowed insurrectionists to organize their efforts despite being dispersed throughout the country.

Second and similarly, the explosion of speech on social media has led to what Eugene Volokh of UCLA Law School initially termed “cheap speech.” Volokh—writing prophetically in 1995—predicted that the technological revolution promised by the internet would lower the costs of speaking, granting more power to individuals while reducing the power of gatekeepers such as journalists or publishers. This change, he said, would increase democratize speech, leading to increased diversity of views and greater availability of information to everyone.

While Volokh saw this development as a good one on balance, similar to Justice Kennedy’s optimism in Packingham, the problems he saw may have become more dangerous than he initially predicted. As Rick Hasen of the University of California at Irvine has written, cheap speech has not only decimated the business model of local newspapers (which in turn may enable local corruption or the rise of propaganda in its place), but has created a “media fire hose” of information, much of it falsehood, propaganda, or conspiracy theory. Hasen worries that these developments have weakened trust in the media and government, increased polarization, and made individuals more likely to double down on believing false information.

To use First Amendment analogies, cheap speech has weakened, rather than strengthened, how well the marketplace of ideas functions. The old gatekeepers of the media were biased, of course, but they had greater incentives (threat of lawsuits, profits, or the pursuit of mainstream respectability) to maintain barriers against conspiracy theorists or the purveyors of flatly false information. Without them, many more citizens seem to have adopted positions unsupported by facts.

There are no obvious solutions to these problems, particularly ones that do not violate current First Amendment doctrine. The old journalism model is dead—going forward, news media will rely either on subscribers or some sort of public/private subsidization to survive. The government cannot censor “bad” viewpoints online, nor can it simply ban lying.

Private companies, of course, can ban those individuals who spread messages or lies contrary to their terms of service, although this raises some unconformable questions about how much power particular social media companies wield in shaping our discourse. There may simply be a tradeoff here: speech without gatekeepers may undermine the broader goals of free speech, while enabling gatekeepers to police the worst of speech grants such institutions the power to shape what can be said.