Free Speech is a Triangle

46 Pages Posted: 30 May 2018 Last revised: 16 Nov 2018

Date Written: May 28, 2018

Abstract

The vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.
The twentieth century featured a dyadic or dualist model of speech regulation with two basic kinds of players: territorial governments on the one hand, and speakers on the other. The twenty-first century model is pluralist, with multiple players. It is easiest to think of it as a triangle. On one corner are nation states and the European Union. On the second corner are privately-owned Internet infrastructure companies, including social media companies, search engines, broadband providers, and electronic payment systems. On the third corner are many different kinds of speakers, legacy media, civil society organizations, hackers, and trolls.
Territorial governments continue to regulate speakers and legacy media through traditional or "old-school" speech regulation. But nation states and the European Union also now employ "new-school" speech regulation that is aimed at Internet infrastructure owners and designed to get these private companies to surveil, censor, and regulate speakers for them. Finally, infrastructure companies like Facebook also regulate and govern speakers through techniques of private governance and surveillance.
The practical ability to speak in the digital world emerges from the struggle for power between these various forces, with old-school, new-school and private regulation directed at speakers, and both nation states and civil society organizations pressuring infrastructure owners to regulate speech.
If the characteristic feature of free speech regulation in our time is a triangle that combines new school speech regulation with private governance, then the best way to protect free speech values today is to combat and compensate for that triangle’s evolving logic of public and private regulation. The first goal is to prevent or ameliorate as much as possible collateral censorship and new forms of digital prior restraint. The second goal is to protect people from new methods of digital surveillance and manipulation—methods that emerged from the rise of large multinational companies that depend on data collection, surveillance, analysis, control, and distribution of personal data.
This essay describes how nation states should and should not regulate the digital infrastructure consistent with the values of freedom of speech and press; it emphasizes that different models of regulation are appropriate for different parts of the digital infrastructure. Some parts of the digital infrastructure are best regulated along the lines of common carriers or places of public accommodation. But governments should not impose First Amendment-style or common carriage obligations on social media and search engines. Rather, governments should require these companies to provide due process toward their end-users. Governments should also treat these companies as information fiduciaries who have duties of good faith and non-manipulation toward their end-users. Governments can implement all of these reforms—properly designed—consistent with constitutional guarantees of free speech and free press.

Keywords: First Amendment, freedom of speech, censorship, digital media, social media, hate speech, right to be forgotten, private governance, information fiduciaries

JEL Classification: K10

Suggested Citation

Balkin, Jack M., Free Speech is a Triangle (May 28, 2018). Columbia Law Review, 2018, Forthcoming; Yale Law School, Public Law Research Paper No. 640. Available at SSRN: https://ssrn.com/abstract=3186205

Jack M. Balkin (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

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