Regulating Speech Online: Free Speech Values in Constitutional Frames

33 Pages Posted: 1 Mar 2021 Last revised: 16 Mar 2021

See all articles by Claudia E. Haupt

Claudia E. Haupt

Northeastern University - School of Law; Yale University - Yale Information Society Project

Date Written: February 28, 2021

Abstract

Regulating speech online has become a key concern for lawmakers in several countries. But national and supranational regulatory efforts are being met with significant criticism, particularly in transatlantic perspective. Critiques, however, should not fall into the trap of merely relitigating old debates over the permissibility and extent of regulating speech. This Essay suggests that the normative balance between speech protection and speech regulation as a constitutional matter has been struck in different ways around the world, and this fundamental balance is unlikely to be upset by new speech mediums. To illustrate, this Essay uses a German statute, NetzDG, and its reception in the United States as a case study.

Contemporary U.S. legal discourse on online speech regulation has developed two crucial blindspots. First, in focusing on the domestic understanding of free speech, it doubles down on an outlier position in comparative speech regulation. Second, within First Amendment scholarship, the domestic literature heavily emphasizes the marketplace of ideas, displacing other theories of free speech protection. This emphasis spills over into analyses of online speech. This Essay specifically addresses these blindspots and argues that the combined narrative of free speech near-absolutism and the marketplace theory of speech protection make a fruitful comparative dialogue difficult. It ends by sketching the contours of a normative approach for evaluating regulatory efforts in light of different constitutional frameworks.

Keywords: Free speech, First Amendment, online speech, platform governance, NetzDG

JEL Classification: K10, K19, K29, K39

Suggested Citation

Haupt, Claudia E., Regulating Speech Online: Free Speech Values in Constitutional Frames (February 28, 2021). Northeastern University School of Law Research Paper No. 402-2021, Washington University Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3794884

Claudia E. Haupt (Contact Author)

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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