Free Speech is a Triangle

Abstract

The vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.

The twentieth century featured a dyadic or dualist model of speech regulation with two basic kinds of players: territorial governments on the one hand, and speakers on the other. The twenty-first-century model is pluralist, with multiple players. It is easiest to think of it as a triangle. On one corner are nation-states and the European Union. On the second corner are privately owned internet-infrastructure companies, including social media companies, search engines, broadband providers, and electronic payment systems. On the third corner are many different kinds of speakers, legacy media, civil-society organizations, hackers, and trolls.

The practical ability to speak in the digital world emerges from the struggle for power between these various forces, with "old-school," "newschool," and private regulation directed at speakers, and both nation-states and civil-society organizations pressuring infrastructure owners to regulate speech.

This configuration creates three problems. First, nation-states try to pressure digital companies through new-school speech regulation, creating problems of collateral censorship and digital prior restraint. Second, social media companies create complex systems of private governance and private bureaucracy that govern end users arbitrarily and without due process and transparency. Third, end users are vulnerable to digital surveillance and manipulation.

This Essay describes how nation-states should and should not regulate the digital infrastructure consistent with the values of freedom of speech and press. Different models of regulation are appropriate for different parts of the digital infrastructure: Basic internet services should be open to all, while social media companies should be treated as information fiduciaries toward their end users. Governments can implement all of these reforms-properly designed-consistent with constitutional guarantees of free speech and free press.