Free Speech and Technology

By Joshua P. Davis on January 26, 2022

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Technological advancements have thrown free speech doctrine into disarray. The speed, frequency, distance, and types of our communications have grown extraordinarily. We can send and receive photos and videos around the world more quickly and easily than we can walk down the street and chat with a neighbor. Such transformations put great pressure on aging legal rules designed for a different era.

It is tempting to think that the principles underlying free speech doctrine are not changing and should not change—that only their proper applications are and should change. But that may be naïve. We did not receive our rules for protecting free speech on stone tablets at Mt. Sinai. We made them ourselves. They embody our best efforts to protect certain kinds of liberties and self-governance in particular settings at particular times. We generalized from concrete applications to general rules and standards, however imperfectly. Now we may need to make new contextualized judgments and draw from them new rules and standards.

The upcoming University of San Francisco Law Review symposium on free speech will explore some of these issues.    Consider the regulation of speech in public schools. Courts have long recognized that public institutions can restrict speech in different capacities. Sometimes the courts regulate private speech, and when they do, they must tread carefully. We place significant limits on government’s ability to interfere with private communications. Other times, public institutions restrict speech as necessary to perform governmental functions. Government itself can be a speaker. It can also fund speech. And it can use speech to provide services to the public, such as through the United States postal service. When government speaks, spends, or acts as a service provider, it can even engage in viewpoint discrimination, something that courts generally resist when government is regulating. So, for example, government can announce the result of an election, even if its legitimacy is contested. Government can fund some public works of art but not others. And government can direct its employees to engage in some communications but not others—requiring postal workers to state the hours a post office branch is open accurately, for example, and not inaccurately.

Drawing the line between government providing a service and regulating speech has always been difficult in the public schools. Some cases are clear. Schools can require teachers to teach a class on astronomy, not astrology, and, in that class, teachers can grade students favorably if they answer questions using astronomy and unfavorably if they answer using astrology. On the other hand, schools cannot punish students for their political speech outside of school. Considerations relevant to drawing these lines have included whether speech occurs on campus or off campus and whether it causes substantial disruption at school.[1]

Enter Snapchat and other forms of social media[2] that complicate all sorts of relevant issues. One of them is identifying where speech occurs. We could focus on where a student is when using social media, but that student could be located at school while communicating primarily or exclusively with others in a different town, state, or country. Or the student could be at home while communicating with others who are at school. The line between off-campus and on-campus speech has always been blurry, but now locating speech has become difficult in new and confusing ways.

Similar points apply to treating social media platforms as public forums. Free speech law applies only to the government. It does not apply to private actors. To be sure, other laws can constrain one private actor’s ability to interfere in communication by another. One neighbor cannot shoot another to silence him with legal impunity. But the Free Speech clause of the First Amendment would not apply.

The public forum doctrine is no exception. It does not treat private restrictions on speech as governmental. Instead, it constrains government restrictions on speech as part of its legitimate efforts to speak, to support speech, or to perform governmental functions. Government is thus limited in suppressing speech that occurs at public parks or on public sidewalks.

Again, social media complicate this analysis. Social media platforms create new possible interactions between government and private actors. Take Donald Trump and Twitter. Trump used Tweets to communicate with many millions of people. When he didn’t like how some people responded to him, then-President Trump blocked their accounts. The question arose whether by doing so he was a governmental actor impermissibly discriminating by viewpoint in a public forum. Lower courts held that he was.[3] We do not know how the Supreme Court would rule on this issue. It granted a writ of certiorari, vacated the judgment, and remanded the case to the Second Circuit to dismiss it as moot because Twitter permanently removed Donald Trump’s account from its platform.[4]

That gives rise to another constitutional issue—whether the law could stop Twitter from removing Trump’s account. In concurring in dismissing the free speech case against Trump as moot, Justice Thomas observed that “applying old doctrines to new digital platforms is rarely straightforward.”[5] He further suggested that two lines of doctrine could potentially support legal claims against Twitter and other social media platforms when they exclude speakers: common-carrier law and public accommodations law.[6] In words that some may find heartening and others frightening, he also declared: “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”[7]

Heartening or frightening—or both—we will need guidance in applying free speech law to new technologies. Legal scholars can help us to do that. For that reason, the U.S.F. Law Review’s upcoming symposium could not be more timely or important. We can only hope it casts light on how to protect freedom of speech in our rapidly changing world.


*        Joshua P. Davis is the Director of the Center for Law and Ethics, and a Dean’s Circle Scholar at the University of San Francisco School of Law, a Research Professor at U.C. Hastings College of the Law, and a shareholder at Berger Montague PC.

         [1].     See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

         [2].     See Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021).

         [3].     Knight First Amendment Inst. v. Trump, 928 F.3d 226 (2019); Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018).

         [4].     Biden v. Knight First Amendment Inst., 141 S. Ct. 1220 (2021).

         [5].     Id. at 1221.

         [6].     Id. at 1222–26.

         [7].     Id. at 1221.