Theme Panel: Rethinking Freedom in a Digital, Viral World: Free Speech as a Case Study

Rethinking Freedom in a Digital, Viral World: Free Speech as a Case Study

Full Paper Panel

(Chair) Jurij Toplak, University of Maribor; (Discussant) Ross Mittiga, Pontificia Universidad Católica de Chile

Session Description:
Constitutionally exogenous factors such as population growth, urbanization, wealth (and inequality), and scientific/technological advances require the rearticulation of the scope and definition of individual rights and government powers. This is not unprecedented. Advances in technology such as the telephone and surveillance devices resulted in a judicial reconsideration of privacy notions such as “search and seizure.” Economic changes and the great depression resulted in fundamental changes in the U.S. Supreme Court’s approach to property rights. Currently, the pandemic is forcing nations to reconsider religious freedom and conscientious objection. Finally, the internet has so amplified the viral power of speech that nations are now struggling to draft revenge porn laws that are not overbroad.

The panel resonates ideally with the conference theme “Rethink, Restructure, and Reconnect: Towards A Post-Pandemic Political Science.” The post-pandemic world will be (already is) characterized by disruptions caused by these factors. The panel is comprised of a multinational, interdisciplinary group of faculty representing law, political science, English, and linguistics who hail from five countries and four continents. We will draw upon diverse perspectives to addresses these challenges specifically regarding the regulation of speech and how political science must grapple with what will be a new world order.


Civil Rights v. Civil Liberties
Mary Anne Franks, University of Miami School of Law

While conservatives and liberals generally invoke the U.S. Constitution for different political ends, they have increasingly converged in prioritizing a civil liberties approach over a civil rights approach to constitutional rights. Though the terms are sometimes used interchangeably, civil liberties and civil rights describe distinct and, in some cases, mutually exclusive concerns. The civil liberties approach to constitutional rights emphasizes individual rights and the need to protect them from the interference of the government; the civil rights approach emphasizes group

Mitigating Global Inequalities in Online Speech Harm
Janny Hiu Chi Leung

The rise of private powers in the governance of public speech has raised concerns about how basic rights should be protected in a digitally connected world. Although market forces alone have evidently failed to create a safe environment for speech, it is not clear what regulatory response is appropriate. State-based solutions typically involve criminalizing certain speech, or imposing liability on intermediaries for such speech that its users generate. The international human rights regime also exerts pressure and provides guidance, which at times conflicts with obligations that states impose on social media platforms. Drawing particular attention to the uneven distribution of online speech harm across speech communities and to existing practices of content moderation, this paper evaluates the promise and limitations of national and international approaches to mitigating such inequalities.

Is Legitimate Regulation of Social Media Possible?
Carissima Mathen, University of Ottawa

With each passing month, the drumbeat against social media and, especially, ‘Big Tech’, grows louder. While technology has kept much of the world spinning during a pandemic, increasing numbers of people believe that many social ills can be laid at its feet. The concerns have produced calls in numerous countries for regulation and control – up to and including dismantling the platforms altogether. Much of the debate, though, involves a striking amount of ‘magical thinking’ – hand-waving away the immense problems of scale, the considerable benefits of free digital services and the dangers of expecting non-state actors to prioritize the public good. Starting from the premise that liberal democracies require some modest agreement about the goals of public policy, I interrogate what ‘legitimate’ regulation of digital communication might look like and what might make that possible.

Does Free Speech in the Digital Age Require Authoritarian Protection?
Mark E. Rush, Washington and Lee University

In The Perilous Public Square, Daphne Keller offers the following comment about regulating speech on the internet: “To outlaw [the kind of hate speech proliferating across the internet], we would need different substantive laws about things like hate speech and harassment. Do we want those? Does the internet context change First Amendment analysis?” (p. 214). I contend that the answer to Keller is an unqualified “yes” and that judges must not hesitate to incorporate “contextual change” into their jurisprudence. In this paper, I use freedom of speech as a case study of the need to strengthen government in order to protect liberal freedoms. I will draw upon the work of Mary Anne Franks (Cult of the Constitution), Genevieve Lakier (numerous articles on contemporary speech), Ran Hirschl (City, State), Ross Mittiga (American Political Science Review January 2022), and others to argue that constitutionally exogenous factors such as population growth, urbanization, wealth (and inequality), and scientific/technological advances require the re-articulation of the scope and definition of individual rights and government powers. I argue that this change necessitates a recalibration of notions of liberalism to enable governments to take the steps necessary to protect all citizens from speech-based harms arising from what continues to be a liberal, market-based, laissez faire approach to free speech. This is not a new claim. John Stuart Mill acknowledged the need to restrict freedom when the external cost of its exercise harmed others. Contemporary critics argue that empowering government to constrain free speech smacks of authoritarianism. But it does not. Such hyperbole is grounded on antiquated visions of society that no longer apply to a world that is much more crowded, technologically advanced, and threatened by challenges of a global scope that was unheard of in Mill’s day.

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