Free Speech is a Triangle

Networks, the Internet, and Cloud Computing, Media and Content and Privacy and Security

Article Snapshot


Jack M. Balkin


Columbia Law Review, Vol. 118, pp. 2011-2056 (2018)


Increasingly, nation-states censor speakers by co-opting the expertise of internet-based businesses like Google. Defending free speech means resisting this type of censorship, and protecting users from manipulative uses of data.

Policy Relevance

Some types of regulation do not increase the threat of censorship. Lawmakers should require digital media firms to safeguard users’ privacy.

Main Points

  • In the twentieth century, free speech issues involved two basic kinds of actors, governments and speakers (a dyadic or dualist model of speech regulation).
  • Now, free speech issues involve three types of actors: nation-states, private-sector internet-infrastructure companies, and speakers; nation-states may require internet-based firms to use their technical abilities to help states regulate speech, a form of collateral censorship.
  • Internet infrastructure firms control speakers and legacy media by contract and computer code, a system of private governance.
    • Social media firms should not be treated like government entities.
    • The First Amendment does not allow government entities to limit offensive or anonymous speech.
  • Protecting free speech does not mean rejecting all government regulation of digital infrastructure; some structural rules, such as network neutrality, do not increase the risk of censorship.
  • Different internet-based businesses should interpret their responsibility to protect free speech online differently.
    • Basic internet services like Gmail should not discriminate on the basis of content.
    • Payment services like PayPal should refuse to do business with illegal enterprises, but otherwise should not discriminate.
    • Content curators like Facebook or Google must make decisions about content, but should avoid arbitrary decisions and try to be trustworthy.
  • Lawmakers should require digital content curators to offer a user due process if the company blocks, censors, or removes the user’s content.
  • Digital media companies should act as “information fiduciaries,” taking care not to share data with careless third parties.
  • Digital media companies might object that the First Amendment protects their rights to collect, analyze, use, and distribute data, but lawmakers can avoid free speech issues by offering a safe harbor from state regulation to firms that agree to act as fiduciaries.

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