Free Speech Categories in the Digital Age

Abstract

Modern free speech law in liberal democracies is oriented around some basic, categorical distinctions. This chapter examines four such categories: speech versus conduct (speech generally receives far greater protection than non-expressive conduct); public versus private actors (most legal systems place sharp limits on public regulation of free expression but generally protect private autonomy); political versus commercial (speech related to economic transactions is subject to greater regulation than political or cultural speech); and finally, public discourse versus domestic gossip (the former being universally considered more worthy of protection). Without these distinctions modern free speech law would be unworkable, because it would devolve into either radical libertarianism or tyranny. This chapter demonstrates that the evolution of the internet and social media into the primary platforms for commerce and expression has fundamentally destabilized each of these categories. This is because the very natures of a digital economy and a disaggregated social media undermine the distinction between the commercial and the political, as well as between the public and the private. I conclude by arguing that if workable new categories of speech are to be constructed, scholars and decision-makers must start with first principles establishing why free speech remains of paramount importance today.