Platform Power, Online Speech, and the Search for New Constitutional Categories

Abstract New communication technologies often challenge existing legal categories concerning freedom of expression. Like television, radio, and even the printing press, social media are forcing governments and civil society to reckon with fundamental questions as to the proper role of the public and private sectors in regulating this new communications medium to realize the benefits and control the harms of speech as amplified through this new technology. This essay highlights the ill-fittedness of existing constitutional categories for the communications revolution that social media have ignited. It argues that social media companies are not state actors, common carriers, or places of public accommodation. Nor should they be considered traditional First Amendment actors with robust claims against government regulation. Instead, it argues, courts need to retrofit our existing conception of speech regulation to be sensitive to the unique features of these new information monopolies: namely, their global scope, the unprecedented velocity of digital communication, and the need for algorithmic moderation at scale.