Michael J. Glennon [*]
[Full text of this Article in PDF is available at this link]
Introduction
It has long been axiomatic that the Constitution limits only action by the state. Private actors cannot abridge freedom of speech; only the government can be charged with that. It has more recently become accepted that the government’s own speech is insulated from constitutional constraints; government could hardly promote its policies if it were limited, say, by First Amendment viewpoint neutrality requirements. The “state action doctrine” and the “government speech doctrine,” so-called, are now settled principles of American constitutionalism. Whether the speaker is a private actor or the government, therefore, the speaker’s expression is protected—even if its purpose or effect is to curtail the speech of others.
I suggest in this article that over-enforcement of these two doctrines has led to under-protection of the marketplace of ideas. The marketplace of ideas exists today in a public square occupied mainly by social media platforms. Protecting the free exchange of ideas requires safeguarding the speech freedom not only of speakers but also of listeners and the general public. Yet excessive deference to the state action and government speech doctrines has led to a focus only on the freedom of speakers—meaning social media companies that have come to operate in tandem with the government on a range of matters of great consequence. Within that constitutional shelter, the government’s security apparatus and private actors can, and often do, join symbiotically to shut down the marketplace of ideas. The marketplace can be protected from this threat, I suggest, only by retracting the reach of those doctrines to protect more fully the speech freedom of all participants within it, not merely speakers. The free speech interests of social media users cannot count for naught, nor can the general public’s free speech interest in hearing the speech of others. These are classic elements of political communication. The machinery of democracy depends upon keeping the channels of political communication open; when those channels are blocked, it is the great duty of the courts to re-open them, a task the courts can undertake within the bounds of existing case law.
The article unfolds in four parts. In Part I, I trace the origins and evolution of the security-media complex—I call it a cartel because of the level of conscious parallelism and outright coordination—through the emergence of the nation’s double government, describing its recent appearance and suppression of speech during two prominent series of events: the Covid-19 pandemic and news reports concerning Hunter Biden. Part II suggests that, throughout these efforts, the security apparatus has been entwined symbiotically with the dominant social media platforms to the degree that separating state action from private action and government speech from private speech in any principled manner is not possible. In Part III, I outline a variety of existing constitutional approaches that, invigorated and amplified, could provide starting points for protecting the modern, digitized public square from the cartel. In Part IV, I conclude that the First Amendment’s vitality depends upon a deepened commitment by the courts to ensure this protection.
[*] Professor of Constitutional and International Law, The Fletcher School of Law and Diplomacy, Tufts University. My thanks to Andre Gellerman and Dillon Kim for research assistance, to the Hitachi Foundation for support, and to Robert Hillman, John Shattuck, Nadine Strossen, and Charles Tiefer for comments on an earlier draft. Mistakes and opinions are my own. This Article draws from my book on freedom of speech to be published in 2023 by Oxford University Press.