Free Speech and Democracy: A Primer for Twenty-First Century Reformers

Helen Norton - University of Colorado Law School
Toni M. Massaro - University of Arizona James E. Rogers College of Law
Vol. 54
February 2021
Page 1631

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites us to reconsider our answers to key questions and to adjust doctrine and theory to account for these changes. Yet there is a more or less to these re-imagining efforts: they may seek to topple, or instead to tweak, current theory and doctrine. Either route requires that reformers revisit the foundational questions underlying the Free Speech Clause: what, whom, and how does it protect — and from whom, from what, and why?

Part I of this Article discusses the threats to public discourse and democracy posed in the twenty-first-century speech environment, as well as the failure of traditional First Amendment theory and doctrine to adequately address these threats. Part II compares the advantages and shortcomings of topples and tweaks as strategies for reform — and by reform, we mean changes to theory and doctrine that may enable the First Amendment to better protect free speech values and democracy from the threats posed by cheap, abundant, and weaponized speech. Here we focus on tweaks and explain why. Part III identifies key features of contemporary theory and doctrine that hobble efforts to empower the First Amendment to respond to the threats to well-functioning democracy posed in the twenty-first-century speech environment. In so doing, it introduces a process for considering and addressing foundational obstacles for constructive First Amendment reform and flags some proposals (our own, as well as others’) for productive tweaks to those core features.
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