Missing in 'State Action': Toward a Pluralist Conception of the First Amendment
72 Pages Posted: 26 Mar 2019 Last revised: 10 Feb 2020
Date Written: March 18, 2019
Online speech intermediaries, particularly social platforms, have an enormous impact on internet users' freedom of expression. They determine the speech rules for most of the content generated and information exchanged today, and routinely interfere with users' speech, while enjoying practically unchecked power to block, filter, censor, manipulate, and surveil. Accordingly, our current system of free expression lacks one of the main requirements of a just system - the notion that no form of power is immune from the question of legitimacy. Scholarly responses to this situation tend to assign decreased weight to constitutional norms as means to impose duties on online intermediaries and promote internet users' speech, while focusing, instead, on other means, such as non-legal norms, legislative and administrative regulation, and technological design. This Article will swim against this current, arguing that a speech promoting environment cannot be sustained without an effective constitutional check on online intermediaries' exercise of power. Unfortunately, existing First Amendment doctrine poses high barriers for structural reform in the existing power relations between online intermediaries and their end users: (1) the "state action" doctrine prevents users from raising speech-related claims against online intermediaries; and (2) an expansive interpretation of what constitutes "speech" serves as a Lochnerian vehicle for intermediaries to claim immunity from government regulation. This Article will discuss these doctrinal barriers, as well as possible modifications to existing doctrine, which could create an environment more supportive of users' speech. However, more importantly, the main contribution of this Article to existing scholarship centers on the argument that a deeper reassessment of traditional doctrinal assumptions is required in order for the First Amendment to fulfill its speech-protecting role in the digital age. The underlying premise of traditional thinking about speech-related constitutional conflicts conceptualizes such conflicts as necessarily bipolar, speaker-government, equations. Accordingly, courts and scholars ordinarily focus on asking whether "the state" is present on one side of the equation or whether "a speaker" exists on the other. This way of thinking about speech-related conflicts suffers from grave limitations when trying to cope with the realities of networks comprised of multiple speakers and multiple censors/regulators (with potential overlaps between these categories). The bipolar conception of the First Amendment is simply incompatible with the type of conflicts that pluralist networks generate. Consequently, if the First Amendment is to have a significant speech-protective meaning in the digital ecosystem, a more sophisticated analysis than the reigning bipolar conception of the First Amendment is necessary. This Article will propose such an alternative analysis, which shall be denominated a pluralist conception of the First Amendment.
Keywords: Freedom of Speech, Free Speech Theory, Constitutional Theory, First Amendment doctrine, Online Intermediaries, Social Platforms
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