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

“Left unfettered, the 21st-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 18th--century writers but also to its 20th-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?”