Document Type


Publication Date

Fall 2021


The United States Supreme Court has continued a speech-protective trend dating back to the 1960s, safeguarding even the most controversial speech from government regulation, including speech that critics of this trend label with the stigmatizing terms "hate speech," "disinformation," "misinformation," "extremist speech," and "terrorist speech." In contrast, as dominant online platforms have become increasingly important forums for both individual self-expression and democratic discourse, the platforms have been issuing and enforcing increasing restrictions on their users' speech pursuant to each platform's content moderation policies. These restrictions often suppress speech that the U.S. Constitution bars government from suppressing. As private sector entities, these dominant platforms presumptively have no First Amendment obligation to host any expression or users-unless the platforms should be treated as "state actors," as multiple experts and litigants recently have argued. Moreover, platforms have their own First Amendment rights to determine which speech or speakers they wish to host. Given these platforms' outsized influence, government officials, civil society organizations, and individual experts have proposed a range of measures that would shape the platforms' exercise of their enormous power to censor ideas and speakers on their respective forums. While many critics complain that dominant platforms are not restricting enough speech, many others lodge the opposite complaint, which is the focus of this Essay. Stressing the goal of facilitating individual freedom of choice, which is the ideal from a free speech perspective, this Essay discusses a range of proposed measures to constrain the dominant platforms' censorial power with the goal of promoting user agency. It outlines proposed measures that have garnered significant support, and which warrant serious evaluation, but given the complexity of the issues and the risk of unintended adverse consequences, it does not conclusively endorse implementing any proposal.


The Foulston Siefkin Lecture
Washburn Law Journal, Vol. 61, Issue 1 (Fall 2021), pp. 1-44