Does Free Speech in the Digital Age Require Authoritarian Protection?

• In Event: Rethinking Freedom in a Digital, Viral World: Free Speech as a Case Study

Abstract

In The Perilous Public Square, Daphne Keller offers the following comment about regulating speech on the internet: “To outlaw [the kind of hate speech proliferating across the internet], we would need different substantive laws about things like hate speech and harassment. Do we want those? Does the internet context change First Amendment analysis?” (p. 214). I contend that the answer to Keller is an unqualified “yes” and that judges must not hesitate to incorporate “contextual change” into their jurisprudence. In this paper, I use freedom of speech as a case study of the need to strengthen government in order to protect liberal freedoms.

I will draw upon the work of 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. 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.

Author

• Mark E. Rush, Washington and Lee University