Regulating Speech Online: Free Speech Values in Constitutional Frames

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