The Future of Free Speech

In On Liberty, published in 1859, John Stuart Mill argues for the “absolute” protection of the “liberty of thought and discussion.” Ever the empiricist, he maintains that such uncompromised freedom, not for all communication or self-expression but for the subset of those activities that qualifies as thought and discussion, would generate the best overall consequences for societies such as Great Britain and the United States. The advent of digital technology has altered how thought and discussion is generated, distributed, and received in ways that might problematize some of the empirical assumptions upon which Mill’s argument in On Liberty is based. This essay explores whether the reasons he advances for the absolute liberty of thought and discussion continue to have purchase in the face of the changed empirical domain in which Mill’s cherished activities of inquiry and persuasion now operate.

Content moderation is typically viewed as an affront to free expression. When companies remove online abuse, they face accusations of censorship. Lost in the discussion is the fact that victims of intimate privacy violations and cyberstalking typically—and regrettably—withdraw from on- and offline activities. Online assaults chase targeted individuals offline; they silence victims. Content moderation can secure opportunities for people to speak. Legal and corporate prohibitions against intimate privacy violations and cyberstalking can help provide the reassurance that victims need to stay online. They can endow individuals with a sense of trust so they continue to use networked technologies to express themselves. Those prohibitions are consonant with First Amendment doctrine and free speech values. Combating online abuse isn’t a zero-sum game with free speech as the loser. Rather, it can free us to speak by changing the culture that rewards abuse and encourages self-censorship.

Foreign actors, particularly Russia and China, are using disinformation as a tool to sow doubts and counterfactuals within the U.S. population. This tactic is not new. From Nazi influence campaigns in the United States to the Soviets spreading lies about the origins of HIV, disinformation has been a powerful tool throughout history. The modern “information age” and the reach of the internet has only exacerbated the impact of these sophisticated campaigns. What then can be done to limit the future effectiveness of the dissemination of foreign states’ disinformation? Who has the responsibility and where does the First Amendment draw the boundaries of jurisdiction?

This essay explores the impact that the resurgence of sovereignty has had on freedom of online speech. I argue that, in the past few decades, the internet has undergone a radical transformation from a universal tool of free communication to one that is increasingly fragmented into national and regional siloes. While acknowledging that recent internet regulation by democratic governments has been both necessary and inevitable, I argue that the authoritarian internet model—with citizens segregated from the rest of the global internet and subject to extensive surveillance and censorship—is on the rise, presenting a real risk to the internet as we know it. In the face of this threat, the world’s techno-democracies need to work together to protect the freedoms that the internet has so far made possible.

On college campuses today, students contemplate whether sharing their opinion is worth the consequences. In this essay, I delineate the current state of speech on college campuses and explore the role of no-platforming, social coercion, and social media’s impact on this environment. Additionally, I describe how students are stifling the university experience by using a variety of methods to either silence speech or ensure that certain speech receives social punishment. The practice of elevating one’s own view by silencing others’ speech is not a new tactic, but is one that persists on college campuses in a variety of forms. To combat the current speech climate on campus, we need to foster a culture that is more curious and inquisitive by providing tools to students at a young age that support their ability to agreeably disagree and thrive in environments of open discourse.

Much of our knowledge of the world comes not from direct sensory experience, but from reliance on epistemic authorities: individuals or institutions that tell us what we ought to believe. For example, what most of us believe about natural selection, climate change, or the Holocaust comes from our reliance on epistemic authorities (scientists, historians). Sustaining epistemic authority depends, crucially, on social institutions that inculcate reliable second-order norms about whom to believe about what. The traditional media were crucial, in the age of mass democracy, with promulgating and sustaining such norms. The internet has obliterated the intermediaries who made that possible, and, in the process, undermined the epistemic standing of actual experts. This essay considers some possible changes to existing free speech doctrine to remedy the epistemological crisis brought about by the internet.

The First Amendment’s press clause has long played second fiddle to the speech clause. With the professional press in steep economic decline, it may be time to consider freedom of speech and freedom of the press separately, in order to shore up journalism’s distinctive, and imperiled, role in a healthy democracy.

The freedom of speech—an essential cornerstone of American democracy—is under direct attack, leaving American institutions, civic culture, and society deeply vulnerable. Restrictions on books and educational curricula, limits on assembly rights, the rampant spread of disinformation, the chill of “cancel culture” and online abuse—all impinge upon the open exchange of ideas that the First Amendment was intended to underwrite. Encroachments on freedom of expression emanate from all sides of the political spectrum and through both formal and informal channels. It is imperative that efforts to contain and surmount the crisis of American democracy include a sharpened focus on the defense of free speech, an essential counterpart to voting rights, civil rights, and a healthy democratic culture. 

For at least the past half-century, Americans have been committed to a “free speech principle,” holding that speech is to be encouraged because it serves to produce knowledge, to enable the development of personal autonomy, and to facilitate the self-governance of the nation. In this essay, I argue that any such abstract free speech principle is fundamentally misguided. The value of speech is instead the value of the social practice within which speech occurs. Speech is to be encouraged when it advances the purpose of the social practice in which it is embedded. For constitutional purposes, the most important social practice established by communication is the public sphere, whose development in the eighteenth century made possible democratic self-governance. The health of a democracy depends upon whether its public sphere can produce a public opinion capable of legitimating the state. This turns on the quality of a nation’s politics, not on the quantity of its speech. Americans who conceptualize the current crisis as requiring rededication to the free speech principle thus essentially misdiagnose the nature of our contemporary emergency. We need to repair our politics, not our speech. 

In this essay, I explore the relationship between the politics of the production of knowledge and partisan attempts to interfere with it. I argue that, despite changing historical contexts, the line between this politics (understood as contests about meaning and power) and partisanship has never been secured. That is because there is a tension inherent in knowledge production that cannot be resolved by legislation, administrative fiat, or academic punditry. Academic freedom mediates the tension but does not resolve it because knowledge production is inherently critical of prevailing norms (whether in the sciences, social sciences, or humanities)—norms whose partisans seek to defend their integrity and their truth. The tension between politics and partisanship is the state (or the fate) of democratic higher education in America.

We should drop the marketplace of ideas as our go-to metaphor in free speech discourse and take up a new metaphor of the connected city. Cities are more liveable when they have an integrated mix of transport options providing their occupants with a variety of locomotive affordances. Similarly, societies are more liveable when they have a mix of communication platforms that provide a variety of communicative affordances. Whereas the marketplace metaphor invites us to worry primarily about authoritarian control over the content that circulates through our communication networks, the connected-city metaphor invites us to worry, more so, about the homogenization of the tools and formats through which we communicate. I argue that the latter worry demands greater attention under emerging technological conditions.

Section 230, the twenty-six words that created the internet, has become the twenty-six words that are breaking the First Amendment. Section 230’s blanket liability shield for social media platforms is harming our children and our democracy. In this essay, I narrate the story of what Section 230 enabled—the rise of the virtual public square, a circumstance that the framers could never have imagined—and explore its consequences for human well-being and freedom of expression. I conclude that Section 230 must be repealed to unleash First Amendment jurisprudence to confront the threats to the republic in the age of generative AI, as well as to usher in the next round of internet innovation in service of constitutional democratic sustainability. Bipartisan legislation has been introduced to sunset Section 230 as of December 31, 2025. Those who believe in the enduring promise of American constitutional democracy should support its passage.

The U.S. Supreme Court increasingly leverages a rigid interpretation of the Free Speech Clause to strike regulations that address campaign financing, health care warnings, tax disclosures, collective bargaining agreements, and consumer protections. History has become little more than a slogan that the majority periodically invokes but seldom accurately evaluates. That lack of nuance augments the justices’ authority to articulate absolutist-sounding rules to the detriment of legislatures’ exercise of traditional governmental functions. Jurists would do better to rely on a more proportionate and less categorical approach to decide whether laws impose direct or peripheral burdens on communications. The level of safeguards enjoyed by expressions should be gauged by their value to political self-determination, personal development, or informational contribution. The degree of protections that speech enjoys should be balanced against countervailing government interests, alternatives available to speakers, fit between law and public ends, and relevant history.

As vast social media platforms undertake more content policing, the U.S. government has unsurprisingly tried to urge them to police things the way it prefers. This is likely to continue and, indeed, expand. What First Amendment constraints are there on such government pressure? This essay offers some tentative thoughts: 1) Some court of appeals cases have drawn lines distinguishing permissible attempts by government to persuade intermediaries to remove their users’ or business partners’ materials from impermissible government coercion. 2) The Supreme Court’s employer free speech cases may also inform our understanding of what counts as subtle coercion. 3) Courts considering other constitutional rights, especially the Fourth Amendment, have concluded that even noncoercive government persuasion may sometimes constitute impermissible evasion of the constitutional mandate. 4) A recent appellate decision (which the Supreme Court vacated on procedural grounds) suggests a potential distinction between ad hoc and systematic attempts to persuade platforms to remove content, though whether that line is ultimately either sensible or administrable is an open question.

Central to the American tradition of expanding protections for controversial speech is a robust distrust of potential censors to make reasonable judgments about what speech should be suppressed. But the arguments for a more restrictive approach to speech often implicitly or explicitly evince much greater trust in the likely decision-makers who will be entrusted with the authority to suppress speech. Whether restricting Communist speech, antiwar speech, “hate speech,” or “disinformation,” the case for empowering some authority figure—such as campus administrators, technology company employees, or government officials—builds on an assumption that those authority figures will be motivated by good intentions and be endowed with good judgment to make reasonable distinctions between the speech that should be tolerated and the speech that should not. Such confidence would often seem to be misplaced.