The "sovereigns of cyberspace" and state action
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[ACCESS RESTRICTED TO THE UNIVERSITY OF MISSOURI AT AUTHOR'S REQUEST.] The "sovereigns of cyberspace" like Google, Facebook, and Twitter are writing the current chapter in the story of free speech. They are conducting private speech regulation as they write, interpret, and enforce their own rules regarding what content is permissible and impermissible on their platforms. In doing so, the companies are developing a de facto free speech jurisprudence, a significant development because of their tremendous power to shape public discourse. Notably, as American companies, Google, Facebook, Twitter, et al., enjoy a First Amendment right to freedom of speech that encompasses the right to make their own content policies. And because they are not government actors, seemingly they are not constrained by the First Amendment. This study explores some of those ideas. First, it describes the spectrum of private actors that operate as arbiters of free speech on the Web and how they operate as such arbiters. Second, it addresses the state action doctrine in the United States, examining (1) how it distinguishes between public and private spheres, and (2) whether it forecloses the First Amendment's application to companies like Google, Facebook, and Twitter. Third, this study suggests a state action theory suitable for the digital world. The findings contribute to the body of knowledge about free speech on the Internet and to the ongoing policy discussion about designing a governance structure for a single and global Internet.
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