When Speech Forums Become Public Goods

• In Event: The Contours and Forums of Free Speech

Abstract

Social media platforms such as Facebook and Twitter play an increasing role in American political affairs, given that they are the primary channel through which Americans express their political opinions and a significant channel through which Americans get information about politics and current events. Indeed, studies recently show that discussions on social media are affecting election outcomes, in the United States and abroad. At the same time, social scientists have begun sounding the alarm that these platforms—in spite of their expansion of access to information—can present that information in ways that undermine the capacities of democratic citizens to make the sorts of rational and informed judgments about politics required for voting—by encouraging the dissemination of “fake news,” obscuring the sources of communications and making accountability harder, permitting the intervention of automated computer users or “bots,” filtering and fragmenting our news pools so that different users see different news, and creating “echo chambers” in which users view only communications by likeminded individuals. 

Smart regulation might mitigate some of these threats to democratic decision-making. Yet because social media platforms are privately owned, they are often thought to be beyond the reach of most state and federal regulation in the United States—at least regulation that is not strictly economic in nature, such as anti-monopoly rules. My co-author and I aim to overturn this misunderstanding and provide a theoretical justification for regulating social media on democratic grounds. 

We argue that the service provided by social media corporations—the speech forum to which citizens contribute and from which they draw information—counts as a “public good,” and thus falls within the regulatory jurisdiction of the state. A public good is any good or service indispensable to the protection of the basic rights of a state’s residents. Familiar public goods include public utilities, publicroads and waterways, and even the economic marketplace (as reflected in the principles of anti-monopoly law). We are particularly concerned, however, with the ways in which a speech forum can gain public status. We argue for one central triggering condition: that the forum plays a unique role in the dissemination of information within the population, in virtue of, inter alia, its open access, the all-purpose nature of communications exchanged within it, the disposition of its users to trust its content, and its population-relative number of contributors and consumers. This status is only heightened when information disseminated is substantially important to rational and informed voting, and hence to democracy itself. Broadcasting networks—occupying “the people’s airwaves”—are already effectively treated as public goods in like manner, and the corporations that own them are regulated accordingly.

Authors

• Erin Miller, Princeton University

• Chloé Bakalar, Temple University