The digital age has widened the gap between the judge-made doctrines of the First Amendment and
the practical exercise of free speech. Today, speech is regulated not only by territorial governments
but also by the owners of digital infrastructure. This has made First Amendment law less central
and the private governance of speech more central.
When the free speech interests of digital companies and their end users conflict, the major
beneficiaries of First Amendment rights are likely to be the former and not the latter. Digital
companies will try to use the First Amendment to avoid government regulation, including
regulation designed to protect the free speech and privacy interests of end users.
In response, internet reformers on both the left and the right will attempt to de-constitutionalize
internet regulation. They will offer legal theories designed to transform conflicts over online speech
from questions of First Amendment law into technical, statutory, and administrative questions. In
the United States, at least, de-constitutionalization is the most likely strategy for imposing public
obligations on privately-owned digital companies. If successful, it will make the First Amendment
less important to online expression.
The speed and scale of digital speech have transformed how speech is governed. To handle the
enormous traffic, social media companies have developed algorithmic and administrative systems
that do not view speech in terms of rights. Accompanying these changes in governance is a different
way of thinking about speech. In place of the civil liberties model of individual speech rights that
developed in the twentieth century, the emerging model views speech in hygienic, epidemiological,
environmental, and probabilistic terms.
Algorithmic decisionmaking and data science also affect how people think about free expression.
Speech becomes less the circulation of ideas and opinions among autonomous individuals and more
a collection of measurable data and network connections that companies and governments use to
predict social behavior and nudge end users. Conceived this way, speech is no longer special; it gets
lumped together with other sources of measurable and analyzable data about human behavior that
can be used to make predictions for influence and profit.