Noisy Speech Externalities

Abstract

A central tenet of contemporary First Amendment law is the metaphor of the marketplace of ideas—that the solution to bad speech is more, better speech. But this is built upon an assumption that more, better speech is possible. Information theory tells us that there are circumstances where any additional speech is necessarily bad speech. This is analytically equivalent to an externality, a common form of market failure and traditional regulatory intervention; and it is analogically equivalent to a market failure in the marketplace of ideas. Indeed, examples of regulation in the face of such failures is common in cases such as pollution and nuisance law—as well as in the First Amendment setting.

This chapter argues that regulation may be justified, and may survive First Amendment challenges, in cases where noisy speech externalities are likely to occur. It also argues that such regulation should draw from the examples of pollution control’s use of best-available control technologies to mitigate these externalities—but that unlike the pollution setting, courts should look to customary industry practices to evaluate whether a particular platform is using such technologies. This chapter suggests that Section 230’s liability shield, which currently allows but does not require platforms to implement any content-moderation technologies, should require platforms to adopt such technologies. However, this is likely a less radical suggestion than it may seem, as most platforms already actively use and develop content-moderation technologies in the standard course of business; such efforts should be sufficient to satisfy a “best-available content-moderation technology” requirement. Rather, only platforms that actively eschew content-moderation practices, or that otherwise neglect these technologies, would risk the loss of Section 230’s liability shield.