Symbiotic Security and Free Speech

Abstract The marketplace of ideas exists today within a public square occupied mainly by social media platforms. Sheltered by the state action doctrine, which prohibits speech abridgment only by the government, and the government speech doctrine, which insulates the government’s speech from constitutional constraints, the platforms and the government’s security apparatus have joined together symbiotically to employ new tools of soft censorship, suppressing the free exchange of unwanted information and opinions on a variety of topics. These include vital issues of public health and electoral politics. Shielding the marketplace of ideas from this cartel requires retracting the reach of those doctrines to protect more fully the speech freedom of all participants within it, not merely the platforms’ and government’s speech that now floods the marketplace. The free speech interests of social media users cannot count for naught, nor can the general public’s free speech interest in hearing the speech of others. The machinery of democracy depends upon keeping open these crucial channels of political communication; when those channels are blocked, it is the duty of the courts to reopen them, a task the courts can undertake by invigorating principles already present within existing case law.