Evelyn Douek (Stanford Law School) has posted The Tug Between Private and Public Power Online (Duquesne University Law Review, Vol. 61, 209) on SSRN. Here is the abstract:
This is a response to Professor Zittrain’s article, “We Don’t Know What We Want”: The Tug Between Rights and Public Health Online.” Zittrain’s article describes, in his characteristically vivid and engaging way, one of the most consequential tugs of war of the internet age: the battle over the rules for what can and cannot be said online. The legal centerpiece of Zittrain’s story is the Skokie case from the late 1970s, which Zittrain describes as encapsulating the civil libertarianism of the early internet.
But there is another case—equally famous (or infamous)—that exemplifies the way American law approached speech regulation during the internet’s formative era and was the legal backdrop against which social media platforms grew up: Citizens United. It makes evident that the “Rights Era” that Zittrain identifies was not only an era defined by protection of individual speech rights—it was also an era defined by the protection of corporate power over speech. Our internet is a product of both tenets: corporations got a lot of protection from the law for how they protect, promote, or select speech, and those corporations tended to think that the best way to wield that power was in the manner Zittrain describes—that is, by being relatively hands-off.
But the two positions carved out in these cases have recently been on a collision course when it comes to online speech. In this short essay, I therefore hope to supplement the important story that Zittrain tells of the tug between rights and public health understandings of online speech governance with a story of how law, including American constitutional law, has sanctioned, and now perhaps is turning against, the corporations that are the agents of Zittrain’s story. This dynamism means nothing is stable—not content moderation, nor the legal environment it operates in. The story of the tug of war between rights and public health is also a story of the struggle over public and private power online. Both stories will determine the future of online speech, and both are still being written.
