The 'Expanding First Amendment' in an Age of Free Speech Paradox

Abstract

In terms of felt experience, many Americans perceive that their capacity to speak freely is increasingly being imperiled in ways for which they have no legal recourse. Yet it has never been easier for individuals to find platforms from which to communicate pretty much anything at all to an audience of potentially global reach. This is largely because of the influence of the new digital platforms on which so much speech occurs. On one hand, the Supreme Court in recent years has broadened the domain of communicative activity covered by the First Amendment’s “speech” protection and has limited in other ways the capacity of government to regulate communication based on content. Yet private web hosts have no legal obligation to deny a forum for communications that others may find offensive or intimidating. Thus, at the same time that digital technologies (along with print, broadcast, and cable) provide unprecedented opportunities for people to share provocative views, many people may find that they enter public debate only at risk of unleashing a torrent of personal attack that may be a source of embarrassment or worse. In short, Americans find their lived experience of “free speech” conditioned not only by the First Amendment’s restrictions on government censorship, but also by social norms, the exercise of private authority, the ways in which speaking rights interact with other rights, and the opportunities and risks associated with expanding information technologies.

Keywords: First Amendment, free speech, Internet, digital platforms

JEL Classification: K3, K19