They Should Be Fired: The Social Regulation of Free Speech in the U.S.

Abstract

The debate over First Amendment jurisprudence often assumes that the First Amendment reflects a choice of non-regulation over regulation. This article suggests, however, that it is more accurate to describe the First Amendment as reflecting a choice of social regulation over legal regulation. Social regulation of speech has generally been lauded and preferred in America for its autonomy-enhancing properties, as private parties in civil society often lack the overwhelming power of a government censor. A review of recent high-profile incidents of social speech regulation, however, suggests that the ubiquity of social media and the hegemony of corporations have increased the breadth, visibility, and mechanisms of social speech regulation to such an extent that its scope can now approach that of a government censor. These mechanisms generally entail economic pressure on corporations, designed to force them to fire and ostracize employees who engage in censorable, contested, or discreditable speech. While the level of offensiveness of these types of speech is not the same, the sanction often is the same-loss of livelihood. This article argues that if the expected benefits of social speech regulation in an era of social media are not to be outweighed by losses in citizen autonomy, an approach to social regulation that includes legal protections against domination is required, beginning in the crucibles of free speech - public schools and universities.

Keywords: First Amendment, Free Speech, Regulation, Censorship, Social Media, Government Censorship, Sanctions, Corporate Censorship