Journal of Free Speech Law: "The First Amendment Meets the Virtual Public Square," by Allison Stanger

A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.

The article is here; the Introduction:

On January 6, 2021, with the encouragement of President Donald Trump, a motley crew of "Stop the Steal" zealots stormed the U.S. Capitol, destroying lives and property. In response, Twitter, YouTube, and Facebook took the unprecedented step of deplatforming a freely elected U.S. president. Twitter permanently suspended Trump's account, Google's YouTube shut him down indefinitely, and Facebook closed his account but referred its decision to Facebook's newly assembled Global Oversight Board for review. Yet two years later, in January 2023, Twitter's new owner Elon Musk reinstated Trump's Twitter account, and Facebook announced the lifting of Trump's ban, without any public explanation. There was no public outcry.

At the time of Trump's social media silencing, there had been considerable public debate over whether such dramatic action had been warranted. For liberal elites, it had happened far too late. For red-state America, the very idea of censoring a freely elected president was unacceptable. Both sides of this discussion had a point but were asking the wrong questions, and in doing so, lost the plotline of the real story. Things had gone too far so that every choice at the time was a bad choice. Rather than asking if Big Tech should have silenced Donald Trump after January 6, we should instead be asking: how and why did we reach the point at which that Hobson's choice had to be made in the first place? The short answer to that question is that while the world's attention was focused elsewhere, Big Tech came to be the gatekeeper of our virtual public sphere, supplanting media institutions and national social norms, the latter of which no longer exist.

Whereas governance and civic engagement used to emerge from deliberation framed by the marketplace of ideas under the protection of the First Amendment (unless the speech incited violence), online harassment and cancel culture today, fueled by social media and framed by recommender algorithms, undermine reason-based public deliberation. For many younger people, freedom of speech has become the rallying cry of white people in red states. The Republican Party's attack on what it calls "wokeness" and its repeated calls for defending free speech feeds that perception.

While those on the extreme left and extreme right argue about their respective trampled free speech rights, they both overlook that the First Amendment protects citizens from government encroachment on freedom of speech and assembly; the First Amendment is mute on corporate suppression of free expression. If we want each and every voter to have an equal voice in public deliberation, the Constitution alone will no longer get us there.

Writing in 1968, J. C. R. Licklider, the founder of the Advanced Research Projects Agency Network, the forerunner to today's world wide web, foresaw this potential negative impact of technological change on society. "For the society, the impact will be good or bad," he predicted, "depending mainly on the question: Will 'to be on line' [sic] be a privilege or a right?" Licklider envisioned the networked world of Web 2.0, but he could not foresee that it would develop without direct government involvement. He did not foresee the ad-driven business model and its ramifications for the free marketplace of ideas.

Unfortunately, the laissez-faire approach to social media that Congress has pursued to date has allowed bad consequences to grow deep roots. Slowly, to be online with an unfettered voice is becoming a privilege rather than a right. The Trump administration repealed net neutrality, so the rich can have faster service than those who cannot afford speed. The ad-driven business model has rendered the right to privacy a luxury good, as those of lesser means give up their personal data and uninterrupted programming in exchange for free streaming services with ads and constant surveillance. The privileged pay subscription fees to imbibe their entertainment without unwanted interruptions.

Since cyberspace has become our public square, this is a deeply disturbing development, both for justice by means of democracy and democratic sustainability. This is to say nothing of equal protection before the law, an assumption on which our Constitution depends, at least theoretically. At the time of this writing, there are several cases in the Supreme Court's docket regarding freedom of speech on social media, which means that either the Supreme Court or Congress could take steps to restore public equality before the law in cyberspace or further entrench private power. To understand the challenges presently before the Court, we must first get a better idea of how we arrived at this particular juncture.