Can the First Amendment Scale?
1 J.FREE SPEECH L. 273 (2021)
30 Pages Posted: 27 Aug 2021
Date Written: August 25, 2021
American judges today preside over a laissez-faire regime of “editorial discretion” for private media entities. That approach promotes freedom of speech when applied to entities such as newspapers that handle content at a relatively small scale. But applied to entities such as Facebook that han-dle millions of items of third-party content a day, the laissez-faire ap-proach threatens free speech by concentrating unchecked censorial power in the hands of a few companies. That outcome is probably avoidable, but only at the price of difficult transformations in First Amendment law that seem to carry their own significant risks. These changes will include a weakening in the editorial concept and a diminished role for the judiciary in defining the public law of free speech.
Keywords: First Amendment, free speech, social media, Facebook, content moderation
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