The New Irony of Free Speech

76 Pages Posted: 24 Sep 2018 Last revised: 27 Feb 2019

See all articles by Moran Yemini

Moran Yemini

Center for Cyber, Law and Policy, University of Haifa; Information Society Project, Yale Law School; Digital Life Initiative, Cornell Tech

Date Written: September 11, 2018

Abstract

In his The Irony of Free Speech, published in 1996, Professor Owen Fiss argued that the traditional understanding of freedom of speech, as a shield from interference by the state, ended up fostering a system that benefited a small number of media corporations and other private actors, while silencing the many, who did not possess any comparable expressive capacity. The conventional wisdom is that by dramatically lowering the access barriers to speech, the Internet has provided a solution to the twentieth-century problem of expressive inequality identified by Fiss and others. As this article will demonstrate, however, the digital age presents a new irony of free speech, whereby the very system of free expression that provides more expressive capacity to individuals than ever before, also systematically diminishes their liberty to speak. The popular view of the Internet as the ultimate promoter of freedom of expression is, therefore, too simplistic. In reality, the Internet, in its current state, strengthens one aspect of freedom (the capacity aspect) while weakening another (the liberty aspect). It trades liberty for capacity. The article will explore the process through which expressive capacity has become a defining element of freedom in the digital ecosystem, at the expense of liberty. The process of diminishing liberty in the digital ecosystem follows along six related dimensions explored in this article: interference from multiple sources; state-encouraged private interference; multiple modes of interference; new-media concentration; lack of anonymity; and lack of inviolability. The result of these liberty-diminishing dimensions of our current system of free expression, taken together, is that while we may be able to speak more than ever before, we are not able to speak freely.

Keywords: freedom of speech, expressive capcity, liberty, the digital ecosystem, technology and morality, technological mediation

Suggested Citation

Yemini, Moran, The New Irony of Free Speech (September 11, 2018). 20 Columbia Science and Technology Law Review 119 (2018), Available at SSRN: https://ssrn.com/abstract=3247735

Moran Yemini (Contact Author)

Center for Cyber, Law and Policy, University of Haifa ( email )

Mount Carmel
Haifa, 31905
Israel

Information Society Project, Yale Law School ( email )

Digital Life Initiative, Cornell Tech

111 8th Avenue #302
New York, NY 10011
United States

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