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Photo by Qusai Al Shidi | CC BY 2.0

A year ago, preparing to teach my undergraduate free speech class I found myself questioning free speech fundamentalism. Struck by the unseemly reality of free expression and the unsettling insights of Kelefah Sanneh in The Hell You Say, the simple comforting notion that more speech is always better than less speech seemed suspect.

Now, one must question the very assumptions of U.S. First Amendment (1A) jurisprudence, which have been laid bare by “post-truth” politics, in which the very concepts of truth and reality have been trumped. In 2016, volume prevailed over reason, and feelings over facts (for more, see here). A cynical carnival barker hoodwinked the citizenry, begging the question: Is the town square model of democracy dead?

Under U.S. jurisprudence free speech is the most important right in a democratic society; it ensures all other rights. The town square model is the paradigm invoked, whereby citizens arrive at the best outcomes by means of an unfettered marketplace of information and ideas. Through reasoned debate on a common set of facts, a rational citizenry is empowered to promote good ideas and to rebut bad ones. But when people see only what they want to see, the ideal fails. There is no grounding reality in debate, just parallel universes, abetting parochial irrationality.

Obviously, technology and human psychology have a profound impact on human cognition, which in turn exposes the discrepancy between the theory and reality of free speech. Scholarship has far surpassed law in coming to terms with this. American free speech jurisprudence is antiquated, clinging steadfast to unwarranted assumptions about political speech and the public sphere (e.g., Citizens United v. FEC and Holder v. Humanitarian Law Project).

In Reno v. ACLU, the 1997 ruling striking down the 1996 Communications Decency Act, Justice Stevens wrote for the Supreme Court that the Internet deserves the highest 1A protection due to the nature of the medium itself whereby “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.” Not even a phone line is needed today, but 20 years later far bigger changes have occurred to the Internet, yet law has been static. Stevens’ reference to town crier and soapbox are part the town square model – that physical place where people have traditionally gone to share information and ideas on matters of public concern. Yet the Internet ideals of a global town square have given-way to filter bubbles, polarization, clickbait, and dysfunction. Now, the town-square is myth.

Google’s genius in monetizing every web click made the Internet a place where people are targeted (and led to self-identify) as consumers, not citizens. The Web has been transformed into virtual monopolies dominated by tech giants Google, Facebook, Amazon, and Apple. Thus, powerful institutional and economic forces are (mis)shaping the influence of this communications platform on individuals and society (for more, see A Tangled Web by the author). And so, we get our first social media President, the tweeter of the free world, ranting fiction. We stare like a deer before the headlights, asking how did that happen?

Clearly, we need to re-think our free speech presumptions, law must evolve, and fixes must be made. Internet content filtering transforms the role that free speech plays in society, undermining the ability of citizens to effectively engage in political discourse. In order to address the negative impact of online filtering, the government should impose a filter-tax on companies that profit from the use of filtering technology (for more, see Jonathan Bujak, Dismantling Democracy: Social Media & Internet Search Filtering, NYU Philosophy of Law term paper, December 2016).

Law and public policy must recognize and address that the most powerful online tech giants are in fact media companies. As such, they should be held to higher legal standards regarding the content they bring to the public domain. We must not allow ourselves to become prisoners to technology and the algorithms which serve to embolden our subjective beliefs and worldviews, thereby exacerbating irrationality and societal dysfunction.

Censorship is bad, and I am wary to let go of the legal presumptions against any content-based restrictions on speech. But clearly there is an urgent need to re-think the manner in which we think about and create law and policy concerning free speech. So, when my free speech class starts later this month, I suppose I will put all this out to my students and then look to them for further ideas on what can be done, asking: Can we talk about this?