REGULATING SPEECH ONLINE: FREE SPEECH VALUES IN CONSTITUTIONAL FRAMES.

• Author: Haupt, Claudia E.

ABSTRACT

Regulating speech online has become a key concern for lawmakers in several countries. But national and supranational regulatory efforts are being met with significant criticism, particularly in transatlantic perspective. Critiques, however, should not fall into the trap of merely relitigating old debates over the permissibility and extent of regulating speech. This Article suggests that the normative balance between speech protection and speech regulation as a constitutional matter has been struck in different ways around the world, and this fundamental balance is unlikely to be upset by new speech mediums. To illustrate, this Article uses a German statute, NetzDG, and its reception in the United States as a case study.

Contemporary U.S. legal discourse on online speech regulation has developed two crucial blind spots. First, in focusing on the domestic understanding of free speech, U.S. legal discourse tightly embraces an outlier position in comparative speech regulation. Second, within First Amendment scholarship, the domestic literature heavily emphasizes the marketplace of ideas, displacing other theories of free speech protection. This emphasis spills over into analyses of online speech. This Article specifically addresses these blind spots and argues that the combined narrative of free speech near-absolutism and the marketplace theory of speech protection make a fruitful comparative dialogue difficult. It ends by sketching the contours of a normative approach for evaluating regulatory efforts in light of different constitutional frameworks.

TABLE OF CONTENTS INTRODUCTION I. ONLINE SPEECH REGULATION IN CONTEXT A. Europe B. Germany 1. Legislative History and Enactment of NetzDG 2. Proposed Revisions of NetzDG 3. Federal Ministry of Justice and Consumer Protection (BMJV) Assessment of NetzDG C. United States II. INTERNAL AND EXTERNAL SITES OF CONFLICT A. Constitutionality B. Regulation and Governance C. Compatibility III. TOWARD A NORMATIVE VIEW A. Shared Underlying Concerns B. First Amendment or Bust? C. The Slippery Slope CONCLUSION INTRODUCTION

After Twitter deplatformed Donald Trump in January 2021, German Chancellor Angela Merkel reportedly communicated her criticism of the decision along with the suggestion that a law governing online speech akin to a German law, the Netzwerkdurchsetzungsgesetz ("NetzDG"), (1) be passed in the United States. (2) Regulating speech online has become a key concern for lawmakers in many countries. Criticisms of laws or legislative proposals to regulate online speech are plenty, but a common mistake is merely to reiterate well-trodden critiques of speech regulation, including prohibitions of hate speech. (3) Drawing out the old debate over whether to regulate speech in the first place, however, is unhelpful in designing or assessing new regulatory regimes for online speech and obscures deeper theoretical concerns raised by the nature of online speech.

The normative balance between speech protection and speech regulation (4) as a constitutional matter has been struck in different ways around the world, both on the national and supranational levels. I suggest that this fundamental balance is unlikely to be upset by new speech mediums, such as Twitter, Facebook, YouTube, Instagram, and various other social media sites. Though there may be some contestation and renegotiation at the margins, the entire universe of online speech is unlikely to be governed by a different set of rules than offline speech. (5)

Seeking complementary free speech regimes online and offline is as much a matter of constitutional doctrine as of constitutional culture and historical and political context. National or supranational legal systems that have struck the balance in favor of hate speech regulation, for example, will likely seek such regulation to be mirrored online as well. Thus, NetzDG aims to better enforce Germany's existing hate speech prohibitions and other criminal code provisions on social media platforms. (6) And any emergent theory of online speech regulation must therefore acknowledge that, for better (7) or worse, (8) it will not likely be the contemporary American understanding of free speech--an outlier in its protection of hate speech and other forms of expression impermissible elsewhere--that will govern online speech around the world. This comparative point, however, is often lost in domestic discussions of online speech regulation where a First Amendment-baseline is commonly assumed. (9)

Contemporary U.S. legal discourse on online speech regulation has developed two crucial blind spots. First, in focusing on the domestic understandings of free speech, U.S. discourse tightly embraces an outlier position in comparative speech regulation while remaining largely oblivious to alternative frameworks of constitutional speech protection. (10) Second, within First Amendment scholarship, the domestic literature has "virtually canonized" the marketplace of ideas, (11) and this heavy emphasis spills over into analyses of online speech, casting aside other theories of speech protection. (12) This Article argues that the combined narrative of free speech near-absolutism and the marketplace theory of speech protection make a fruitful comparative dialogue difficult.

Suggesting a path to a deeper normative understanding that better enables comparative dialogue, this Article puts three distinct bodies of scholarship into conversation with each other: first, U.S. law and technology scholarship concerned with questions of speech regulation and the role of social media platforms in moderating content primarily from a domestic perspective; (13) second, comparative freedom of speech scholarship, which has traditionally been concerned with the design of and values underlying various constitutional frameworks of speech protection; and third, First Amendment scholarship on different theories of justifying free speech protection beyond the marketplace of ideas.

Starting from the premise of largely settled arrangements regarding the scope and limits of speech protection that differ among constitutional regimes--the focus will be on the United States, Europe, and Germany (14)--this Article proceeds in three parts. Part I provides a descriptive-analytical account of supranational and national efforts to regulate online speech, focusing on the German NetzDG as a case study, and their reception in the United States. Whereas European efforts are occurring in a context in which the constitutional balance has been struck in favor of permitting some forms of speech regulation, primarily based on historical justifications, the enacted and proposed laws are received in the United States in a context that historically is extremely speech permissive. This fundamental difference has resulted in deep skepticism toward European regulatory efforts that directly impact U.S. social media companies. (15)

Part II identifies sites of conflict, both within national regimes and across them. It first examines NetzDG within the German constitutional framework. Then, Part II analyzes the doctrinal and theoretical dimensions of online speech regulation in general, and NetzDG in particular, through the lens of Jack Balkin's distinction between "old school" and "new school" speech regulation. (16) Balkin notes that "[d]uring the early age of the Internet, people imagined that territorial governments would lose much of their power to control speech.... It did not turn out precisely that way, in part because nation states developed the techniques of new school speech regulation." (17) The relevant question, thus, is not whether the constitutional balance itself is struck correctly, but rather what the regulatory regimes look like and how they interact with free speech values. Finally, it puts the German regulatory framework into conversation with the currently predominant American approach that has been widely adopted by the largest platforms as their guiding standard. (18) Although the rhetoric of American-style free speech values remains dominant, platforms are actually moving toward a more aggressive governance approach by imposing their terms of service. (19) Notably, Twitter "permanently suspended" President Trump's @realDonaldTrump account on January 8, 2021. (20)

Part III sketches the contours of a normative framework for thinking about online speech regulation in comparative constitutional perspective with the aim of aiding both theory building and policy design, refocusing First Amendment theory around democratic self-governance rather than the marketplace of ideas. As a result of this realignment, a shared normative baseline may be identified in transatlantic perspective: because speech protection is fundamentally tied to democracy, regulating online speech should enable democratic self-governance.

This third Part then addresses two prominent objections to online speech regulation. The first objection I will call the "First Amendment or bust"-objection--an argument sounding in American exceptionalism suggesting that only contemporary U.S.-style free speech protection is truly sufficient. The second is a version of the "slippery slope"-objection, suggesting that while European-style speech regulation might be acceptable, nondemocratic regimes are using similar types of regulation to further curtail free speech to nondemocratic ends. These objections are mutually reinforcing because the tenet of content-neutrality as a key doctrinal feature of the First Amendment and the normative emphasis on the marketplace theory lead to a situation in which speech is rendered largely irregulable regardless of context. Thought to its logical end, then, speech regulation cannot distinguish between democratic and nondemocratic contexts and content. Both objections therefore counsel in favor of exploring normative bases for speech protection--and, on the flipside, permissible speech regulation--beyond the marketplace...