Table of Contents

New book by Bollinger and Stone on social media and free speech — FAN 348

A broad explanation of the various dimensions of the problem of "bad" speech on the internet within the American context.
Lee Bollinger and Geoffrey Stone

Lee Bollinger (left) and Geoffrey Stone (right)
make for an impressive duo in their new book, "Social Media, Freedom of Speech, and the Future of our Democracy.”

When it comes to organizing and editing timely and important books on freedom of expression, Geoffrey Stone and Lee Bollinger make for an impressive duo. Simply consider three of their previous works: "National Security, Leaks and Freedom of the Press: The Pentagon Papers Fifty Years On" (2021), "The Free Speech Century" (2018), and "Eternally Vigilant: Free Speech in the Modern Era" (2002). Now they have ventured upon what may be the most ambitious of all of their publishing projects by way of an edited book titled "Social Media, Freedom of Speech, and the Future of our Democracy" (Oxford University Press, 2022).

Book cover of Social Media, Freedom of Speech, and the Future of Our Democracy

One of the most fiercely debated issues of this era is what to do about "bad" speech-hate speech, disinformation and propaganda campaigns, and incitement of violence on the internet, and in particular speech on social media platforms such as Facebook and Twitter. In "Social Media, Freedom of Speech, and the Future of our Democracy," Lee C. Bollinger and Geoffrey R. Stone have gathered an eminent cast of contributors[.]

Opening Statement

  • Lee Bollinger & Geoffrey Stone

Regulating Harmful Speech on Social Media: The Current Legal Landscape and Policy Proposals

  • Andrew J. Ceresney, Jeffrey Cunard, Courtney Dankworth, and David A. O'Neil

Part One: An Overview of the Problem

  • Renée Diresta: "Algorithms, Affordances and Agency"
  • Evelyn Douek: "The Siren Call of Content Moderation Formalism"
  • Jamal Greene: "Free Speech on Public Platforms"
  • Genevieve Lakier: "The Limits of Andiscrimination Law In the Digital Public Spehere"
  • Nathaniel Persily: "Platform Power, Online Speech, and the Search for New Constitutional Categories"
  • Kate Starbird: "Strategy and Structure: Understanding Online Disinforamtion and How Commitments to 'Free Speech' Complicate Mitigation Approaches"

Part Four: Other Possible Reforms

Prof. Martha Minow
Prof. Martha Minow
  • Jack Balkin: "To Reform Social Media, Reform Informational Capitalism"
  • Yochai Benkler: "Follow the Money, Back to Front"
  • Lawrence Lessig: "The First Amendment Does Not Protect Replicants"
  • Newt Minow, Nell Minow, Martha Minow & Mary Minow: "Social Media, Distrust, and Regulation: A Conversation"
  • Amy Klobuchar: "Profit Over People: How to Make Big tech Work for Americans"

Report of the Commission

  • Katherine Adams, Jelani Cobb, Martin Baron, Russ Feingold, Lee Bollinger, Christina Paxson, Hillary Clinton, and Geoffrey Stone
Prof. Genevieve Lakier
Prof. Genevieve Lakier

[These authors] explore the various dimensions of this problem in the American context. They stress how difficult it is to develop remedies given that some of these forms of "bad" speech are ordinarily protected by the First Amendment. Bollinger and Stone argue that it is important to remember that the last time we encountered major new communications technology-television and radio-we established a federal agency to provide oversight and to issue regulations to protect and promote "the public interest."

Featuring a variety of perspectives from some of America's leading experts on this hotly contested issue, this volume offers new insights for the future of free speech in the social media era.


Three other forthcoming books in the Oxford Series edited by Bollinger and Stone

  1. Lee C. Bollinger & Geoffrey R. Stone, "Reckoning with America's Long History of Racism and the Essential Constitutionality of Affirmative Action"
  2. Nathan S. Chapman & Michael W. McConnell, "Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience"
  3. David E. Pozen, "The Constitution of the War on Drugs"

YouTube: Noah Feldman on free speech rights on social media

Draft South Carolina anti-abortion bill raises First Amendment questions 

A bill making its way through the South Carolina legislature would place a near-total ban on abortions, prohibiting the procedure except in cases where the life of the mother is at risk.

The measure, a draft of which is currently being considered by the state senate's Medical Affairs Committee, would also criminalize helping a person obtain an abortion — including providing information about how to obtain an abortion. Under the current bill draft, a person who provides information could be prosecuted if they know the information "will be used, or is reasonably likely to be used for an abortion" — and could face up to 25 years in prison.

[ . . . ]

“This particular law is constitutionally overbroad,” Eugene Volokh, a law professor at the University of California, Los Angeles who specializes in First Amendment law, said. “It covers speech that is constitutionally protected.”

According to Volokh, the "aiding and abetting" portion of the draft bill would have more legal standing if it was narrowly focused on illegal abortions in the state.

“If abortion is illegal and Supreme Court has said that it could be made illegal, then that does allow punishing at least certain kinds of speech related to abortion — just like this is true with all crimes,” he said.


Lukianoff on canceling Dave Chappelle

Dave Chappelle
Dave Chappelle (

Imagine these headlines:

Salman Rushdie dumped by publisher after The Satanic Verses offends the Ayatollah of Iran. Victory for free expression!

Lenny Bruce's sold-out show in New York City canceled after religious staffers at the club decry foul language. Victory for artistic expression!

Prince concert canceled after Tipper Gore complains about vulgar lyrics in "Darling Nikki." Victory for free speech!

You'd have to have a pretty odd sense of history to consider any of those could-have-been scenarios as victories for freedom of expression. Yet a surprising number of people are asserting exactly that when it comes to a Minneapolis venue called First Avenue that canceled Dave Chappelle's comedy show this week.

Volokh on private-employer-imposed speech restrictions

Eugene Volokh
Professor Eugene Volokh

As I mentioned yesterday, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and against such statutes. The article (Should the Law Limit Private-Employer-Imposed Speech Restrictions?) will be published later this year in a Journal of Free Speech Law symposium issue, together with other articles that stemmed from an Arizona State symposium on Non-Governmental Restrictions on Free Speech; and this week and next I'd like to serialize it here.

Yesterday, I blogged the Introduction and the beginning of the argument in favor of such statutes, focused on the democratic self-government theory of the First Amendment; today, I add a discussion of the search for truth, self-expression, and autonomy theories, plus a bit on negative theories. Future posts will also of course cover the arguments against such statutes (and you can see the arguments right now, if you'd like, by looking at the PDF of the article).

Early state laws prohibited musical desecration of the national anthem

How today’s speech norms launch old inquisitions

The consequences of American “cancel culture” for artistic freedom and civil liberties are often minimized and dismissed by public figures for not rising to sufficiently injurious levels. “Cancel culture,” they claim, “in the terms it is culturally viewed in, does not exist.”

Emblem of the Spanish Inquisition (1571)
Emblem of the Spanish Inquisition (1571)

There aren’t any Americans being put to death or tortured as a consequence for speech, talking heads reason, as if free expression in-and-of-itself is not a human right (it is). “This isn’t the Spanish Inquisition,” they argue, excusing a trend that Americans largely oppose by claiming that “careers are not destroyed.”

Champions of “cancel culture” may claim it does not cause people to lose their jobs, but such contentions are nothing more than “alternative facts” which the record clearly demonstrates to be false. Those who instigate, excuse, or support modern-day censorship, while often insisting social progress is their goal, ignore how unenlightened and backwards their actions actually are. Their eager dismissals of an issue so elemental to democracy itself — one’s very ability and willingness to speak — are historically uninformed and naively short-sighted.

The Spanish Inquisition wasn’t always “The Rack,” “The Wheel,” and the torture chamber. In fact, in its later years, as Europe underwent Enlightenment, the Inquisition’s consequences came to resemble the comparatively mild punishments doled out by American “cancel culture” today: Threats to professional reputation and employment, pervasive self-censorship, and widespread environs of chilled speech, particularly in the artistic realm.

[ . . . ]

Antiquated morals have been refashioned for contemporary tastes, but this does not not make them any less nefarious. “Cancel culture” is nothing new, and the truth about today’s in-vogue rebrand of old-fashioned inquisitorial morals is simple: “Cancel culture cancels culture.” If we want to collectively pursue truth and beauty in a society that cultivates intellectual enlightenment and the artistic sublime, we must see through the emperor’s new clothes and condemn “cancel culture” for the anti-intellectual, moralistic parochialism that it is.

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