Kyle Langvardt (University of Nebraska at Lincoln – College of Law) has posted “Can the First Amendment Scale?” (1 J.FREE SPEECH L. 273 (2021)) on SSRN. Here is the abstract:
American judges today preside over a laissez-faire regime of “editorial discretion” for private media entities. That approach promotes freedom of speech when applied to entities such as newspapers that handle content at a relatively small scale. But applied to entities such as Facebook that handle millions of items of third-party content a day, the laissez-faire approach threatens free speech by concentrating unchecked censorial power in the hands of a few companies. That outcome is probably avoidable, but only at the price of difficult transformations in First Amendment law that seem to carry their own significant risks. These changes will include a weakening in the editorial concept and a diminished role for the judiciary in defining the public law of free speech.