New Context, Enduring Questions: Online Speech Regulation

January 20, 2022

When confronted with the vexing issues surrounding online speech regulation, “plus ça change” might be a tempting response for comparativists who have studied free speech before the advent of social media, including in the context of comparative hate speech regulation. Deep skepticism toward speech regulation remains the prevailing American position, based on the contemporary domestic understanding of free speech. Faced with legislative interventions elsewhere, such as the German Netzwerkdurchsetzungsgesetz (NetzDG), a reflexive reaction is merely to reiterate criticism of speech regulation, including prohibitions of hate speech. But continuing the old dispute over whether to regulate speech in the first place is unhelpful in fashioning or evaluating new regulatory regimes, and obstructs deeper theoretical concerns raised by online speech. 

In my new Article, “Regulating Speech Online: Free Speech Values in Constitutional Frames,” forthcoming in the Washington University Law Review, I argue that 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, the domestic literature heavily emphasizes the marketplace of ideas, supplanting other theories of free speech protection. Accordingly, there are two major objections to online speech regulation. The first objection contends that only the contemporary American understanding of free speech, framed by First Amendment doctrine and with a strong emphasis on the marketplace of ideas, is sufficiently speech protective. But there is neither a single justification for speech protection nor one single American speech tradition. In addition to the marketplace of ideas, there are theories of autonomy and democratic self-governance with deep roots in American free speech thought. These alternative speech traditions likely provide a more useful lens for comparative dialogue. The second objection, essentially a slippery slope-concern, focuses on regulation originating in democratic regimes that is then appropriated by nondemocratic regimes to nondemocratic ends. This seems especially troubling because current First Amendment doctrine places great emphasis on content-neutrality. Thus, speech regulation cannot distinguish between democratic and nondemocratic contexts and content. Connecting speech protection back to its role in democracy addresses both objections. But the combined narrative of free speech near-absolutism and the marketplace theory of speech protection make a fruitful comparative dialogue difficult. 

Focusing on shared normative concerns underlying online speech protection and animating speech regulation would be more productive. This does not mean transplanting European-style speech regulation. Rather, normative engagement likely would lead to a more nuanced discussion around online speech regulation within the currently existing constitutional frames. It would acknowledge the normative convergence that is occurring outside of the constitutional framework in the United States, where private actors drive developments, with the values underlying constitutional frameworks in Europe. And as private platforms’ decisions become increasingly important for democratic public discourse, platforms themselves may learn from constitutional systems that have monitored the boundaries of political discourse all along. 

Online speech is neither necessarily democracy-enhancing nor does it promote the discovery of truth in the online marketplace of ideas. To the contrary, unregulated online speech challenges democratic self-government in novel ways. Extremist content and propaganda online have become pressing concerns in the United States. The attack on the Capitol on January 6, 2021, is a particularly jarring example. And the shocking events of that day seem to have opened the door for renewed comparative engagement with enduring questions of speech regulation. Two themes in particular emerged in connection with these events that potentially unsettle long-standing constitutional assumptions in the United States. 

First, the rigidity of the state action doctrine was gradually questioned—in historical perspective, not an entirely foreign concept to free speech jurisprudence in the United States. State regulation and private governance mechanisms equally ought to seek to protect democratic public discourse to enable democratic self-governance. The irony, of course, is that in the United States, the democracy-securing function online is in the hands of private companies. Absence of the state from speech regulation, on the theory that this protects democracy, thus results in a democratic deficit. Elsewhere, this phenomenon may be addressed by the horizontal application of fundamental rights.

Second, the theme of “militant democracy” emerged, including in the opinion pages of U.S. newspapers. Considering certain speech outside the bounds of public discourse in order to protect democracy, is explicitly part of the constitutional framework elsewhere. The German Basic Law, for example, goes further than protecting free speech subject to a limitations clause. It also imposes a regime of “militant democracy” (wehrhafte Demokratie). Perhaps better translated as “defensive” democracy, militant democracy is democratic self-defense. Among other elements, the Basic Law creates a constitutional requirement to guard against certain forms of propaganda and hate speech. The militant democracy framework has been interpreted by the Federal Constitutional Court in various contexts, including that of neo-Nazi demonstrations. Here, too, the Federal Constitutional Court has an eye to preserving a generally speech protective regime subject to certain limitations. This does not mean that NetzDG is constitutionally required. But this type of law is consistent with the larger approach to protect democratic public discourse and defend democracy itself.

Current First Amendment doctrine would not permit such democratic self-defense. Whereas the marketplace theory of speech protection would counsel in favor of counterspeech, democratic self-government theory would likely counsel in favor of content moderation. But while the marketplace is increasingly unable to stem speech that threatens democracy, concerns about undemocratic speech suppression collide with calls for democracy-enabling speech regulation.

Both of these concepts, the horizontal application of constitutional rights and militant democracy, are well-established in other constitutional democracies. As domestic legal discourse becomes increasingly interested in them, valuable lessons can be learned from other countries’ experiences. And while these concepts tend to be studied in isolation, viewing them in tandem opens novel perspectives, particularly as applied to the complex problems surrounding speech on social media platforms.