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Does Free Speech In The Digital Age Require “Authoritarian” Protection?
In The Perilous Public Square, Daphne Keller asks “Does the internet context change First Amendment analysis?” (p. 214). I contend that the answer is an unqualified “yes” and that judges must not hesitate to incorporate “contextual change” into their jurisprudence.
I draw upon Mary Anne Franks (Cult of the Constitution), Genevieve Lakier (numerous articles on contemporary speech), Ran Hirschl (City, State), Ross Mittiga (American Political Science Review January 2022), and others to argue that constitutionally exogenous factors such as population growth, urbanization, wealth (and inequality), and scientific/technological advances require the rearticulation of the scope and definition of individual rights and government powers. This is not unprecedented. Advances in technology (the telephone) resulted in a judicial reconsideration of privacy notions such as “search and seizure.” Economic changes and the great depression resulted in fundamental changes in the U.S. Supreme Court’s approach to property rights.
So, yes, the interne does change First Amendment analysis (or, the analysis of free speech in general). I argue that this change necessitates a recalibration of notions of liberalism to enable governments to take the steps necessary to protect all citizens from speech-based harms arising from what continues to be a liberal, market-based, laissez faire approach to free speech. This is not a new claim. John Stuart Mill acknowledged the need to restrict freedom when the external cost of its exercise harmed others. Contemporary critics argue that empowering government to constrain free speech smacks of authoritarianism. But, it does not. Such hyperbole is grounded on antiquated visions of society that no longer apply to a world that is much more crowded, technologically advanced, and threatened by challenges of a global scope that was unheard of in Mill’s day.