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Social Media, Freedom of Speech
and the Future of Our Democracy
 Social Media, Freedom of
Speech and the Future of Our
Democracy

EDITED BY LEE C. BOLLINGER

and
G E O F F R E Y R . S TO N E
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.

Published in the United States of America by Oxford University Press

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© Oxford University Press 2022

All rights reserved. No part of this publication may be reproduced, stored in

a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by license, or under terms agreed with the appropriate reproduction
rights organization. Inquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

CIP data is on file at the Library of Congress

ISBN 978–​0–​19–​762109–​7 (pbk.)
ISBN 978–​0–​19–​762108–​0 (hbk.)

DOI: 10.1093/​oso/​9780197621080.001.0001

1 3 5 7 9 8 6 4 2
Paperback printed by Lakeside Book Company, United States of America
Hardback printed by Bridgeport National Bindery, Inc., United States of America
 To Jean and Jane
And to the next generation:
Katelyn, Colin, Emma, Cooper, and Sawyer
Julie, Mollie, Maddie, Jackson, and Bee
 CONTENTS

Acknowledgments xi
List of Contributors xiii
Opening Statement xv
Lee C. Bollinger and Geoffrey R . Stone
Regulating Harmful Speech on Social Media: The Current Legal
Landscape and Policy Proposals xxiii
A n d r e w J. C e r e s n e y, J e f f r e y P. C u n a r d,
C o u r t n e y M . D a n k w o r t h , a n d D av i d A . O’N e i l

PART ONE An Overview of the Problem

1. Social Media and First Amendment Fault Lines 3

D av i d A . S t r au s s

2. A Deliberate Leap in the Opposite Direction: The Need to

Rethink Free Speech 17
L arry Kramer

3. The Disinformation Dilemma 41

E m i ly B a z e l o n

4. A Framework for Regulating Falsehoods 53

Cass R . Sunstein

vii
viii Contents

PART T WO REFORMING SECTION 230

5. The Free Speech Industry 65

Mary Anne Franks

6. The Golden Era of Free Speech 87

Erwin Chemerinsky and Alex Chemerinsky

7. Section 230 Reforms 103

Sheldon Whitehouse

PART THREE CONTENT MODER ATION AND

THE PROBLEM OF ALGORITHMS

8. Algorithms, Affordances, and Agency 121

R e n é e D i R e s ta

9. The Siren Call of Content Moderation Formalism 139

e v e ly n d o u e k

10. Free Speech on Public Platforms 157

Jamal Greene

11. The Limits of Antidiscrimination Law in the Digital Public

Sphere 179
Genevieve Lakier

12. Platform Power, Online Speech, and the Search for New
Constitutional Categories 193
N at h a n i e l P e r s i ly

13. Strategy and Structure: Understanding Online Disinformation

and How Commitments to “Free Speech” Complicate Mitigation
Approaches 213
K at e S ta r b i r d

PART FOUR OTHER POSSIBLE REFORMS

14. To Reform Social Media, Reform Informational Capitalism 233

Jack M. Balkin

15. Follow the Money, Back to Front 255

Yo c h a i B e n k l e r
 Contents ix

16. The First Amendment Does Not Protect Replicants 273

L aw r e n c e L e s s i g

17. Social Media, Distrust, and Regulation: A Conversation 285

N e w t o n N. M i n o w, N e l l M i n o w, M a r t h a M i n o w, a n d M a r y M i n o w

18. Profit Over People: How to Make Big Tech Work for
Americans 301
Amy Klobuchar

Report of the Commission 315

K at h e r i n e A d a m s , J e l a n i C o b b , M a r t i n B a r o n , R u s s F e i n g o l d,
L e e C . B o l l i n g e r , C h r i s t i n a Pa x s o n, H i l l a r y C l i n t o n , A N D
Geoffrey R . Stone
Concluding Statement 327
Lee C. Bollinger and Geoffrey R . Stone
Notes 331
Index 393
 ACKNOWLEDGMENTS

This is our fourth major book project together, all centered around major turning
points or seminal issues involving the First Amendment. We are always pro-
foundly impressed, first, by the importance and complexity of the role played by
the principles of freedom of speech and press in American society and, second,
by just how illuminating it can be to draw together some of the most informed
and original minds of the time to try to understand these matters better. We,
therefore, begin our thanks to our authors and to members of the Commission
for their commitment to this project. We are also grateful to Andrew Ceresney,
Courtney Dankworth, Morgan Davis, and their colleagues at Debevoise &
Plimpton for the extraordinary help in providing the background paper and in
shepherding the work of the Commission to arrive at its recommendations. We
believe that the contributions of all of these individuals have collectively yielded
a valuable volume of ideas.
There are others who deserve recognition. Jane Booth, General Counsel of
Columbia University, provided the bridge with Debevoise & Plimpton and her
own substantive interventions. The Office of the President at Columbia, under
the direction of Christina Shelby, was simply outstanding in organizing just
about everything. We make special note of Joanna Dozier in this regard and free-
lance editor Lori Jacobs.
We continue to be thankful for the deep relationships we have with Oxford
University Press, and especially with Dave McBride and his entire staff.
As always, we benefit in inexpressible ways from Jean Magnano Bollinger
(Lee’s spouse) and Jane Dailey (Geof ’s spouse). Nothing happens without their
counsel and support (and constructive criticism).
And, lastly, we feel beyond fortunate to have Carey Bollinger Danielson as
our general editor, on this as well as our prior two books. As we have said each
time and do so again, Carey has been the perfect colleague in these ventures.

xi
 L I ST O F CO N T R I B U TO R S

Katherine Adams, Senior Vice President and General Counsel, Apple

Jack M. Balkin, Knight Professor of Constitutional Law and the First
Amendment, Yale Law School, and founder and director of Yale’s Information
Society Project
Martin Baron, former Executive Editor, the Washington Post
Emily Bazelon, staff writer for the New York Times Magazine and Truman
Capote Fellow for Creative Writing and Law, Yale Law School
Yochai Benkler, Berkman Professor of Entrepreneurial Legal Studies, Harvard
Law School
Lee C. Bollinger, President and Seth Low Professor of the University, Columbia
University
Alex Chemerinsky, law clerk, United States District Court
Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of
Law, Berkeley Law
Hillary Clinton, former United States Secretary of State
Jelani Cobb, Ira A. Lipman Professor of Journalism, Columbia Journalism School
Renée DiResta, technical research manager, Stanford Internet Observatory
evelyn douek, lecturer on law, Harvard Law School, and associate research
scholar, Knight First Amendment Institute at Columbia University
Russ Feingold, President, American Constitution Society

xiii
xiv list of Contributors

Mary Anne Franks, Professor of Law and Michael R. Klein Distinguished

Scholar Chair, University of Miami School of Law; President and Legislative &
Tech Policy Director, Cyber Civil Rights Initiative
Jamal Greene, Dwight Professor of Law, Columbia Law School
Amy Klobuchar, United States Senator for Minnesota
Larry Kramer, President of the William and Flora Hewlett Foundation, for-
merly Richard E. Lang Professor of Law and Dean, Stanford Law School
Genevieve Lakier, Professor of Law, University of Chicago Law School; Senior
Visiting Research Scholar, Knight First Amendment Institute at Columbia
University (2021-​2022 academic year)
Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard
Law School
Martha Minow, 300th Anniversary University Professor and former Dean of
Harvard Law School, board member of public broadcaster WGBH
Mary Minow, presidential appointee under three administrations to the Institute
of Museum and Library Services and library law consultant
Nell Minow, expert in corporate governance, an American film reviewer and au-
thor who writes and speaks frequently on film, media, and corporate governance
and investing, and served on the board of public broadcaster WETA
Newton N. Minow, Senior Counsel at Sidley Austin LLP, the former Chairman
of the FCC, and active participant in public broadcasting and media governance
Christina Paxson, President, Brown University
Nathaniel Persily, James B. McClatchy Professor of Law, Stanford Law School
Kate Starbird, Associate Professor, Human Centered Design & Engineering,
University of Washington
Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law,
University of Chicago
David A. Strauss, Gerald Ratner Distinguished Service Professor of Law,
University of Chicago Law School
Cass R. Sunstein, Robert Walmsley University Professor, Harvard University
Sheldon Whitehouse, United States Senator for Rhode Island
Debevoise & Plimpton attorneys: Andrew Ceresney, Jeffrey P. Cunard,
Courtney Dankworth, and David A. O’Neil
 O P E N I N G S TAT E M E N T
Lee C. Bollinger and Geoffrey R . Stone

One of the most fiercely debated issues of the current era is what to do about
“bad” speech on the internet, primarily speech on social media platforms such
as Facebook and Twitter. “Bad” speech encompasses a range of problematic
communications—​hate speech, disinformation and propaganda campaigns,
encouragement of and incitement to violence, limited exposure to ideas one
disagrees with or that compete with preexisting beliefs, and so on. Because the
internet is inherently a global communications system, “bad” speech can arise
from foreign as well as domestic sources. No one doubts that these kinds of very
harmful expression have existed forever, but the premise of the current debate
is that the ubiquity and structure of this newest and most powerful communica-
tions technology magnifies these harms exponentially beyond anything we have
encountered before. Some argue that, if it is left unchecked, the very existence
of democracy is at risk.
The appropriate remedies for this state of affairs are highly uncertain, and this
uncertainty is complicated by the fact that some of these forms of “bad” speech
are ordinarily protected by the First Amendment. Yet the stakes are very high
in regard to how we answer the question because it is now evident that much of
public discourse about public issues has migrated onto this new technology and
is likely to continue that course into the future.
Current First Amendment jurisprudence has evolved on the premise that,
apart from certain minimal areas of well-​established social regulation (e.g.,
fighting words, libel, threats, incitement), we should place our trust in the
powerful antidote of counter-​speech to deal with the risks and harms of “bad”
speech.1 Of course, that may well turn out to be the answer to our contempo-
rary dilemmas. Indeed, one can already see the rise of public pressures on in-
ternet companies to increase public awareness of the dangers of “bad” speech,

xv
xvi Opening State ment

and there are discussions daily in the media raising alarms over dangerous
speech and speakers.2 Thus, it may be that the longstanding reliance on the self-​
correcting mechanisms of the marketplace of ideas will work again.
But perhaps not. There is already a counter risk—​that the increase in “ed-
itorial” control by internet companies will be biased against certain ideas and
speakers and will effectively censor speech that should be free.3 On the other
hand, even those who fear the worst from “bad” speech being uninhibited often
assert that internet company owners will never do enough on their own to ini-
tiate the needed controls because their basic, for-​profit motivations are in direct
conflict with the public good and the management of civic discourse.4 There is
understandable concern that those who control the major internet companies
will have an undue and potentially dangerous effect on American democracy
through their power to shape the content of public discourse. On this view,
public intervention is necessary.
It is important to remember that the last time we encountered a major new
communications technology we established a federal agency to provide over-
sight and to issue regulations to protect and promote “the public interest,
convenience, and necessity.”5 That, of course, was the new technology of broad-
casting, and the agency was the Federal Communications Commission. The
decision to subject private broadcasters to some degree of public control was,
in fact, motivated by some of the very same fears about “bad” speech that we
now hear about the internet.6 People thought the risks of the unregulated pri-
vate ownership model in the new media of radio and television were greater
than those inherent in a system of government regulation. And, like today, those
who established this system felt unsure about what regulations would be needed
over time (in “the public interest, convenience, and necessity”), and they there-
fore set up an administrative agency to review the situation and to evolve the
regulations as circumstances required. For a fuller description and analysis of
these issues, see Images of a Free Press and Uninhibited, Robust, and Wide-​Open: A
Free Press for a New Century, by Lee C. Bollinger.7
On multiple occasions, the Supreme Court has upheld this system under
the First Amendment. The formal rationale for those decisions may not apply
to the internet, but there is still plenty of room for debate about the true prin-
ciples underlying that jurisprudence and their continued relevance. In any
event, the broadcasting regime stands as arguably the best example in our his-
tory of ways to approach the contemporary concerns about new technologies
of communication. But, of course, it may be that government intervention in
this realm is so dangerous that social media platforms should be left to set
their own policies, just as the New York Times and the Wall Street Journal are
free to do.
 Opening State ment xvii

Section 230 of the Communications Decency Act of 1996 famously shields

internet companies from liability for speech on their platforms.8 Many critics of
internet companies have advocated the repeal of this law and have used the idea
of its repeal as a threat to get these companies’ owners to change their editorial
policies (either to stop censoring or to censor more).9 Another approach would
be to enforce existing laws that forbid foreign states and certain actors from in-
terfering in US domestic elections and politics.
Everyone accepts the proposition that efforts by Russia to spread disinfor-
mation in order to foster civil strife in America is highly dangerous and prop-
erly subject to criminal prohibitions.10 But, in a much more integrated world,
especially one facing global problems (climate change, and so on), it is also true
that the American public has a vital First Amendment interest in hearing and
communicating with the broader international community. The problem, there-
fore, will be in finding the right balance between improper foreign interference
and the healthy and necessary exchange of ideas on the global stage.
We also need to take stock of the precise nature of the problems we are facing
with “bad” speech on social media platforms, as well as what means other than
legal intervention might be available to address the problems. Public education,
changes in algorithms, the development of a more journalistic culture within the
management of these platforms, government pressures on “bad” actors abroad,
and other non-​legal solutions all need to be explored.
It is also possible that the constraints in existing First Amendment jurispru-
dence should themselves be amended, not only because the circumstances and
contexts are different today but also because experience over time with those
doctrines and principles might lead some to doubt their original or continuing
validity. Overall, we need to imagine as best we can what a new equilibrium
should look like as we experience the impacts on our democracy of this new
technology of communication.
Every now and then in the history of the First Amendment an issue comes
along that not only poses a perplexing and challenging question about some
aspect of First Amendment doctrine or some incremental move, but also calls
into question the whole edifice of freedom of speech and press as we have come
to know it in the United States. The current debates about the threats to free
speech, and even to democracy itself, triggered by the evolution of our newest
technology of communication—​ the internet, and especially social media
platforms—​constitute such an occasion. The extraordinarily rapid embrace of
this method of communication (in less than two decades), together with its
pervasive presence in our lives, is both astonishing and revolutionary. This is
true especially because the internet and social media are controlled by a few
corporations which are structurally designed to reserve to them primary control
xviii Opening State ment

of this powerful new means of communication. It is now a central question in the

United States and around the world whether this new means of communication
strengthens what freedom of speech has marked as the ideal or threatens every-
thing we have so painstakingly built.
This book is dedicated to exploring that question and what follows from
the answers we give to it. At this moment in the history of the United States,
there is arguably no conundrum of greater importance. When an overwhelming
majority of citizens communicates, receives information, and forms political
alliances in a single place, and when that place is effectively controlled and
curated by a single person or entity (or mathematical model),11 alarms built over
decades of thought about freedom of speech and democracy are triggered. Too
much censorship? Or too little? Those, in a sense, are the central concerns. The
balance struck is always the test of a free and democratic society, because it is
ultimately through speaking and listening that human beings become who they
are and decide what to believe. Put simply, do entities like Facebook, Twitter,
and YouTube have too much power under existing law to determine what speech
we will or will not have access to on social media? Are there changes that can
constitutionally be made to the current system that will improve rather than
worsen the current state of affairs? And how should we think about the multi-
national implications of the internet and about how policies adopted in other
nations affect freedom of speech in the United States?
We have invited twenty-​two authors, all experts on this general subject, to
write eighteen essays describing how they see the current and future state of
affairs in this new communications universe and what they propose should be
done, if anything, to address these challenges. We frame the inquiry with this
brief introductory statement and a concluding one. A team from the distin-
guished law firm of Debevoise & Plimpton (led by Andrew Ceresney, partner)
has contributed an essay providing a comprehensive legal background to the
current state of play in the area we are investigating. And, finally, we include in
this volume the Report of a Commission we convened to review the assembled
essays and to make a set of specific recommendations about what we should and
should not do in this highly controversial area of policy and constitutional law.
This is our fourth project together of this kind. We have come to this way of
exploring highly controversial and complex problems by experience. We have
found that giving individuals with deep expertise the opportunity to write freely
about their concerns and to explore their suggestions for reform provides a
depth of engagement and education for the reader that is hard to achieve in a
single-​author volume. We believe this is a productive way of exploring a difficult
problem and of driving the discussion toward recognizing new realities.
Before turning to the essays, we thought it would be useful for us to set forth
a few points we believe to be central to the analysis:
 Opening State ment xix

1. The recency of our First Amendment jurisprudence. In 2019 we published a

volume of essays titled The Free Speech Century.12 Our purpose was to mark,
indeed to celebrate, the one hundredth anniversary of the first Supreme Court
decisions interpreting the words of the First Amendment: “Congress shall
make no law . . . abridging the freedom of speech, or of the press.”13 Although
the First Amendment had been added to the Constitution in 1789 as part of
the Bill of Rights, the Supreme Court did not weigh in on its meaning until
1919, during World War I.14 The complex jurisprudence about free speech
and free press that we rely on today is, therefore, of fairly recent vintage—​we
are still learning.15
2. The current jurisprudence of the First Amendment affords extraordinary protec-
tion to the freedoms of speech and press. No other nation in the world today,
nor, for that matter, in history, has evolved a system of constitutional pro-
tection for the freedoms of speech and press to the degree, or with the level
of analytical refinement, that we have today in the United States. In the last
half-​century, starting with the Court’s famous decision in New York Times
v. Sullivan, involving a defamation lawsuit brought by a Montgomery,
Alabama, city official against the New York Times, the Court has created the
most speech-​protective system in the world.16 Using the premise of a deep
distrust of government involvement in speech and a concomitant fear of the
natural human impulse to be intolerant and to suppress the thoughts we hate,
the judiciary has embraced a high level of protection for free speech and a
free press, especially when the speech concerns public issues. The upshot is
that we now live in a society committed to a level of public discourse that,
in the Supreme Court’s words, is “uninhibited, robust and wide-​open.”17 As
a result, the opportunity for individuals to engage in potentially “bad” or
“harmful” speech is very, very wide.
3. Our contemporary First Amendment jurisprudence is more complex and fluid
than many might imagine. There are several reasons for this. For example, on
many of the key issues we will take up in this book, the Supreme Court has
taken different, sometimes opposing, positions at various times. To cite just
one of many possible examples, in Beauharnais v. Illinois, decided in 1952,
the Court upheld the constitutionality of a law prohibiting what we would
today call “hate speech,” whereas in Brandenburg v. Ohio, decided in 1969,
the Court held that the government cannot punish such speech consistent
with the First Amendment unless the government can prove that the speech
is “directed to inciting or producing imminent lawless action and is likely to
incite or produce such action.”18 Often in these situations, the earlier deci-
sion has not been explicitly overruled, thus leaving open the possibility for
its later revival. Moreover, many decisions are vague in their implications,
leaving room for a broad range of possible interpretations. As a result, one
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