Rethinking Speech Rights in the Era of Corporate Information Control

This post is part of a series of contributor perspectives and analyses called "The Coming Age of Tech Trillionaires and the Challenge to Democracy." Learn more about the call for contributions here, and read other pieces in the series as they are published here.

In his speech to Congress introducing the proposed amendments to the Constitution that would become our Bill of Rights, James Madison described the fundamental constitutional rights to freedom of speech, freedom of assembly and the right to petition in the following terms.

“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.”

These are the third and fourth sentences of Madison’s proposed fourth amendment, which became the basis for our First Amendment. Both Madison’s formulation and the broader congressional debates surrounding the adoption of the Bill of Rights make clear something we have largely forgotten to our peril. These rights were originally understood as the right of each member of the political community to freely participate in the deliberative practices of the political community. That is, freedom of speech as an individual right was understood as an essentially political right, inseparable from the demands of civic association and collective self-rule.

We need to return to an essentially democratic, political conception of the constitutional right to free speech not because the original meaning of the constitutional document is, or should be, our law. We need to return to a political conception of free speech because an increasingly abstract and individualistic understanding of ‘expressive rights’ has left us poorly prepared to recognize and confront the greatest current threats to democratic self-governance. In a context where both the US government and tech oligarchs hide behind protestations of fundamental free speech rights to control the platforms through which information is exchanged, and the data exchanged on those platforms, our hope for the future of democratic self-governance depends upon recognizing the essential difference between data and speech.

“The public square”

President Donald Trump began his second term in office by issuing an executive order that claimed to defend the rights of American citizens “to speak freely in the public square without Government interference.” Trump has made more than clear, however, that he has no qualms about the Government interfering with Americans gathering together in actual public squares to protest the unconstitutional actions of his administration. Instead, his executive order seeks to protect a very specific kind of “public square” — the one constituted by US corporate social media platforms. At first, one might be tempted to conclude that this is just an attempt to play to his base, echoing right-wing talking points about social media censorship. But there is a deeper reason why certain members of the Trump administration want people to “speak freely” on those platforms, and it is the same reason that Mark Zuckerberg has; both want to use social media as a way of getting more data about users inside and outside the US.

Even before Marco Rubio instructed US Embassies and Consulates that the lack of an active public social media account “may be reflective of evasiveness” and could be grounds for denying certain student visa applications, it should have been obvious that X and Facebook are not, in any meaningful sense, the kind of ‘public squares’ that the First Amendment to the US Constitution sought to protect. The American Civil Liberties Union has laudably taken a leading role in presenting legal challenges to Trump’s attempt to suppress street protests, but they are misguided in their characterization of the modern internet as “a vast free-speech zone deserving at least as much First Amendment protection as that afforded to traditional media such as books, newspapers, and magazines.” Corporate social media platforms are minimally vehicles of corporate surveillance, and increasingly vehicles of government surveillance. Sharing a meme on an algorithmically controlled online ‘community’ designed to direct user engagement and mine user data is a fundamentally different kind of activity from publishing a local newspaper or attending a protest; viewing these activities as “at least” equally deserving of First Amendment protection is a trap the US government and tech oligarchs are using to their advantage and our disempowerment.

The mistake underlying the ACLU’s position on ‘Internet Speech’ is unfortunately not confined to the United States. On December 20, in the lead-up to the snap election in Germany, Elon Musk posted on X his support of the German far-right. Apparently in response to Musk’s post, outgoing Chancellor Olaf Scholz defended the rights of “multimillionaires” to “say things that aren’t right and do not contain good political advice.” Musk is neither a German citizen nor a European resident. He was using his privately owned social media platform to directly influence the votes of more than 16 million regular X users in Germany. The fact that this intervention in a foreign democratic election by the world’s wealthiest man could be framed by the chancellor as a question of Musk’s “freedom of speech” shows in exceptionally clear terms the inadequacy of the governing conception of expressive rights to address the very real political threats posed by the allied autocratic aspirations of the current US administration and Big Tech.

The marketplace of ideas

The constitutional right of the people to communicate with one another, in public squares and in a free press, was formerly understood as a ‘bulwark of liberty’ — that is, as the necessary means through which a people preserved themselves as a self-governing political community. How this essentially political understanding of speech and press freedoms was transformed into a trans-political entitlement to produce and consume ‘content’ has a long and complicated history — too long to attempt to recount here. We can, however, note three key transitions in both governing legal frameworks and popular understanding of free speech rights. First, the right to equal participation in communal deliberation about the common good was conflated with an increasingly wide array of individual and corporate expressive rights. Second, speech rights were conflated with property rights — both in ever widening scope of intellectual property rights and in conflating speech rights with the right to use individual financial resources to amplify certain voices over others. Third, speech rights have been increasingly understood as the right to consume “information” whatever its source.

In each of these cases we see a convergence between the logic of free market liberalism and contemporary conceptions of speech freedom. Our understanding of communication, particularly in the US, has become increasingly commodified. While few people would now accept without serious qualification Oliver Wendell Holmes’s familiar claim that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” the metaphor of an unregulated “marketplace of ideas” has been largely accepted by the US Supreme Court as the constitutional standard for speech freedom. This view, combined with the Court’s increased willingness to view monopolistic practices in general as, in Antonin Scalia’s words, “an important element of our free market system” has led to the pernicious fiction that the First Amendment is best understood as an anti-regulatory instrument that creates “an open marketplace where ideas…compete without government interference.” The “marketplace of ideas” metaphor as it functions in US law thus compounds ideological myths about self-regulating markets and self-restrained monopolists with a view of human communication as a commercial exchange.

Speech and data

The mistake of viewing all human communication as a kind of transaction between content creators and information consumers predates the information economy, the global dominance of that economy by a handful of firms, and the imposition of technologies marketed as ‘intelligent’ on all aspects of our daily lives. These developments, however, have made diagnosing that mistake more difficult and correcting it more urgent. We have increasingly accepted, both theoretically and practically, a view of communication as the transmission of discrete units of information, and information as synonymous with processed or structured data. In computer science and information theory, the informational content of a text is determined by how ‘unpredictable’ a specific pattern of words is relative to statistical expectations derived from existing data sets. The most informative sentences, that is, are like the “statistically improbable phrases” that allow search engines or plagiarism checking software to identify a specific likely source from among all the texts indexed within their databases. Creativity is identified with novel word order to the point that a US Federal Court has ruled that texts produced by LLMs trained on copyrighted artistic work are every bit as creative as those originals — that in “mimicking human reading and writing” to produce texts it was simply doing “what people do” when reading and learning from “modern-day classics.” The thoughtless identification of speech mimicry with constitutionally protected speech has gone so far that a leading expert on US constitutional law has recently opined that the outputs of LLMs are protected by the First Amendment from viewpoint discrimination, despite the fact that even the LLMs have been trained to deny they have any viewpoint.

This is not the place to argue that what we have been sold as “artificial intelligence” is not, in fact, intelligent. It is the place to observe, however, that the meaning of ‘intelligence’ that best applies to an ever-more predatory online experience is the one exhibited in the phrase ‘intelligence gathering’, and that whatever increasingly unreliable information we get online is more than amply paid for by the information collected about us as relatively discrete, demographically classified and targeted consumer interest groups. Even if we were to accept a model of communication as an “information exchange” somehow analogous to a marketplace, that market was never free and becomes less so by the day, with every big media merger and the collapse of local news organizations doomed by unregulated market forces that have nothing at all to do with a free competition between ideas. But we should not accept that model because it is a remarkably impoverished understanding of what we do when we speak to and with others. Think for a moment of the most important experiences you have had of learning with and from other human beings and ask yourself whether this is well described as information retrieval or exchange. Real ideas are not pieces of information. They are ways of understanding, practices of thinking, that allow us to see things differently. We learn to speak and think as members of one or more linguistic and cultural communities, and both our speech and our thought depend upon a broader context of shared meaning. This is nowhere more obviously and necessarily true than in our speech and thought about our political communities themselves.

The Oxford English Dictionary tells us that the original meaning of the English word “communication” — the fact of sharing something in common with others — has become obsolete. It nonetheless needs to be central to our understanding of the kind of speech protections essential to constitutional self-government. Particularly at this moment, when faith in a meaningful international legal order seems misguided at best and cynical at worst, we need to recognize the essential difference between the moral imperative to treat all human beings with respect and dignity, and the constitutional legal concept of a right as a kind of entitlement. We must stop thinking of ourselves as consumers of rights granted to us by nature or history, and enforced by the courts or the liberal consensus of nations; we must recognize that no one gives us our rights except ourselves acting as a self-governing political community. Our conception of both speech rights and privacy rights needs to be re-oriented around understanding them as public goods and the enabling conditions of genuine political association; that is, they should be understood in terms of the people’s right to the necessary means to constitute themselves as a people.

Senator John Sherman, the principal author of the Sherman Anti-Trust Act of 1890, famously said, “If we will not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessaries of life.” Our current tech titans now aspire to oligarchic mastery of the public square itself. Together with an autocratic chief executive, they are rapidly transforming the very act of people communicating with one another into a vehicle of control.

This is, ultimately, the most basic reason we should be persuaded to view our free speech rights in political terms — not as a constitutional barrier to restraining the monopolistic power of big tech but as a constitutional mandate to oppose that power. We should understand our speech rights as democratic political rights precisely out of fear of and in response to the overtly anti-democratic aspirations of people like Elon Musk and Peter Thiel. Curtis Yarvin, a far-right blogger and reputed influence on both Thiel and J.D. Vance, describes the role of ‘free speech” in his imagined Anarcho-Capitalist Monarchy in the following terms.

“In my ideal neocameralist state, there is no political freedom because there is no politics. Perhaps the government has a comment box where you can express your opinion. Perhaps it does customer surveys and even polls. But there is no organization and no reason to organize, because no combination of residents can influence government policy by coercion.

And precisely because of this stability, you can think, say, or write whatever you want. Because the state has no reason to care. Your freedom of thought, speech, and expression is no longer a political freedom. It is only a personal freedom.”

This purely personal, individualistic, apolitical view of “freedom of expression” fits in quite well with much of our existing market-oriented conception of free speech, but it has nothing at all to do with our constitutional rights. We need to return to a conception of freedom of speech as essentially a right of the people, if we are to have any hope of realizing a government by the people and for the people.