Responsible Government and the Duties of Big Tech

• In Event: Coercive Power of the State and Questions of Political and Legal Accountability

Abstract

In the debates surrounding Big Tech in recent years, many politicians foreground the importance of freedom of speech. However, responsible government on the issue requires weighing many desiderata competing with speech, including the need to curb misinformation that misleads the public or undermines political institutions. Questions about the obligations of Big Tech thus turn on complex, often unspoken political calculi about how to reconcile a plurality of interests and values, speech being only one among these. Drawing lessons from Madison’s understanding of freedom of the press, as well as comparative constitutional experience, this paper offers a path to a fuller, more transparent reckoning of the stakes in regulating Big Tech.

We draw from the history of and thought of James Madison, among others, on press freedom, to demonstrate how limitations on rights, competing values, and duties have been conceived in American political thought. This history illustrates a way of understanding rights and duties beyond rights absolutism and does so in a subject area with important parallels to Big Tech. Moreover, we introduce the concepts of limitations analysis and horizontality from comparative law that offer a richer framework to understand and debate duties of private actors, such as tech companies. In transcending a dominant rights talk, these insights from American history and abroad bring competing values to the fore as government actors deliberate the duties Big Tech may or may not have.

Authors

• Christina Bambrick, University of Notre Dame

• Alejandro Castrillon, University of Notre Dame