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Provocative: Supreme Court and free speech on the Internet: “Who Should Regulate Online Speech?’

Professor Cole, the Honorable George J. Mitchell Professor of Law and Public Policy at Georgetown University, begins with the colossal conundrum of free speech on the internet:

“The First Amendment protects speech from interference by public authorities, (emphasis added)  but some of the most powerful forces controlling speech are private (emphasis added)  – the large social media platforms such as X, Facebook, and Instagram. Like the apple in Eden, social media has simultaneously brought us knowledge and introduced (or exacerbated) a host of problems …”

Fittingly, Professor Cole points to Emily Bazon encapsulating the dilemma: “When it comes to the regulation of speech, we are uncomfortable with government doing it; we are uncomfortable with social media or media titans doing it. But we are also uncomfortable with nobody doing it at all.”

(It is not incidental to add dimensions to this calculus: How will these Supreme Court decisions be applied in the context of the just fully-enacted (February 17th) , vast foreign internet regulations of the European Commission Digital Services Act with its international reach and “main goal … to prevent illegal and harmful activities and the spread of disinformation …” .)

To be fair, Professor Cole points out that the social “media giants” have been trying: “Every social media platform has a content moderation policy that guides what can and cannot appear on its sites and what content it promotes or demotes.”

All in, Professor Cole favors “antitrust enforcement and laws that promote competition … (which) would address the concentration of economic power without regulating free speech and should face few First Amendment obstacles….But whether antitrust efforts succeed or not, the principal responsibility for reform of  content moderation policies will have to lie with the platforms themselves.”

Highly desirable: “‘uninhibited, robust and wide-open debate’”.

“It’s messy. It’s far from ideal. It will sometimes mean that people exposed to communications that deeply offends them, and that some voices and messages will get more amplification than others. But that is the price of freedom – now as much as it was in James Madison’s day.”