Anuj C. Desai

Volume 73, Issue 5, 1481-1510

Social media is just one part of the broader free-speech ecosystem. Social media regulation thus only regulates one part of that ecosystem. To evaluate social media regulation thus requires an understanding of the role social media itself plays—or more importantly, ought to play—in that ecosystem. We must thus first answer the following question: what institutional role should social media play in that broader free-speech ecosystem?

I argue that one framework through which to view this question—or perhaps one subset of this question—is, where should social media companies lie on what we might call the “speaker-conduit continuum”? When we think about regulating the post office or the old AT&T, the legacy monopoly telephone company, we instinctively think about that regulation differently from how we think about regulating The New York Times. Why does regulating the telephone company seem different from regulating a newspaper? Because each plays a different role in the free-speech ecosystem: one is a “speaker,” the other a “conduit” for other people’s speech. That might seem obvious, but technological advances in communications over the past three decades have blurred that line even further.

In the late 1960s and early 1970s, the Supreme Court dealt with a similar conundrum, one that required it to interrogate, and then articulate, the role that newspapers and broadcast media each play in the free-speech ecosystem. In a pair of unanimous decisions a half century ago, Red Lion Broadcasting v. FCC and Miami Herald v. Tornillo, the Court held that a “right to reply” requirement was constitutional when applied to broadcast media but unconstitutional when applied to newspapers. In so holding, the Court implicitly placed newspapers firmly on the “speaker” side of the speaker-conduit continuum while framing broadcast media as having some attributes of a “conduit.”

The Court’s decisions depended on a social construction of newspapers and broadcast radio, one that intertwines with the public values the Court saw each medium as furthering. In particular, the Court understood broadcast as what I will call, drawing on the work of Alexander Meiklejohn, a Meiklejohnian medium of communication; one where the interests of the public as audience, not as speakers, were of primary concern.