Artículo 3: «Desigualdades de género en el deterioro de la salud como

The purpose of this chapter is to analyze how key First Amendment theories and doctrines define the notions of extremeness and harmfulness in the context of freedom of expression, and ultimately apply these definitions to how freedom of expression is exercised in a global system of networked communication. This chapter begins with the foundational question posed by law professor Frederick Schauer: Why must speech be

26 See, e.g., ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948);

CASS R.SUNSTEIN,DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993); OWEN FISS,THE IRONY OF

FREE SPEECH (1996).

27 See, e.g., Lessig, supra note 24; Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 PEPP.L.REV. 438 (2009) [hereinafter Balkin, The Future of Free Expression]; Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Speech for the Information Society, 79 N.Y.U. L.

REV. 1 (2004) [hereinafter Balkin, Digital Speech and Democratic Culture].

special?²⁸ In other words, why should this analysis pay so much attention to the potential effects of methods of Internet governance on speech (“content governance”) when methods of Internet governance affect many other phenomena and seek to uphold other important social values? Like Schauer, this chapter concludes that speech must be considered special because of the multiple values that come from the broad category of speech, values that require us to carefully analyze the potential harms that can be

experienced at the expense of these values.²⁹ I then proceed to an analysis of three of the most prominent First Amendment theories: marketplace of ideas theory, individual autonomy theory and tolerance theory.³⁰ Each of these theories, in its own way, answers the following questions: What makes speech harmful? What makes it so harmful that it should be regulated? How should that speech be regulated? At what point does regulation damage deliberative democracy? Answering these questions will help clarify the social values of extreme and potentially harmful speech.

Grasping clear definitions of harm is a task that calls for law professor Rodney Smolla’s three-part model of harmful speech, which identifies physical harm, relational harm, and reactive harm.³¹ These three classifications of harm are useful because they neatly categorize First Amendment doctrine. U.S. free speech jurisprudence considers physical harm the worst of the three types of harms, and certain tests have been devised to address this harm and to decide when the speech that causes it falls outside of

28 Frederick Schauer, Must Speech Be Special? 78 NW.U.L.REV. 1284 (1983).

29 Id. at 1304, 1306.

30 Another important First Amendment theory, self-governance theory, is not discussed in this chapter because it is part of chapter 2’s discussion of affirmative First Amendment theories. However, versions of self-governance theory will make an appearance in chapter 3 as perspectives for criticizing the three theories focused on in chapter 3.

31 RODNEY A.SMOLLA,FREE SPEECH IN AN OPEN SOCIETY 48 (1992).

constitutional protection. These types of speech include fighting words,³² true threats,³³ and incitement to imminent lawless action.³⁴ Relational harm involves speech that causes injury to social relationships (defamation), business relationships (fraud or false

advertising), ownership interests (copyright) and confidentiality (leaking national security secrets).³⁵ Courts have devised legal tests to determine if and how such speech should be legally sanctioned. Finally, reactive harms include intentional infliction of emotional distress of public officials,³⁶ and tortious invasions of privacy, as well as any type of hate speech. Hate speech has been defined many ways by many different scholars,³⁷ but a generic definition for the purposes of this study may categorize hate speech and any speech that attacks and attempts to subordinate any group or class of people, typically spoken by a group with a higher level of social power than the targets of the speech. The

32 Chaplinsky v. New Hampshire, 315 U.S. 568, 572-3 (1942) (defining unprotected fighting words as words said in another person’s face that “by their very utterance inflict injury or tend to incite an immediate breach of the peace”).

33 Virginia v. Black, 538 U.S. 343, 360 (2003) (O’Connor, J., writing for the plurality) (defining

unprotected true threats as speech that can be interpreted both objectively and subjectively as threatening).

34 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (defining unprotected incitement as “advocacy of the use of force or of law violation [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”).

35 SMOLLA, supra note 31.

36 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

37 For various studies with various definitions of hate speech, see generally Clay Calvert, Hate Speech and Its Harms: A Communication Theory Perspective, 47 J.COMM. 4 (1997); Alexander Tsesis, Dignity and Speech: The Regulation of Hate Speech in a Democracy. 44 WAKE FOREST L.REV. 497 (2009); Richard Delgado and David H. Yun, Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic

Objections to Hate Speech Regulation, 82 CAL.L.REV. 871 (1994); Owen M. Fiss, The Supreme Court and the Problem of Hate Speech.24CAPITAL U.L.REV. 281 (1995); Stephanie Farrior, Molding the Matrix:

The Historical and Theoretical Foundations of International Law Concerning Hate Speech. 14 BERKELEY

J.INT’L L. 1 (1996); Jean-Marie Kamatali, The U.S. First Amendment Versus Freedom of Expression in Other Liberal Democracies and How Each Influenced the Development of International Law on Hate Speech. 36 OHIO N.U.L.REV.721(2010);Post, supra note 11; Tanya Katerí Hernández, Hate Speech and the Language of Racism in Latin America: A Lens for Reconsidering Global Hate Speech Restrictions and Legislation Models. 32 U. PA.J.INT'L L. 805 (2011).

targets of such speech typically include racial minorities, women, religious minorities, and homosexuals.

According to Smolla, speech that leads to reactive harms deserves the highest level of constitutional protection due to its tendency to implicate public figures or

officials, or its tendency to involve important social issues and matters of public concern:

factors which greatly outweigh the potential harms of the speech. However, although these types of speech receive strong legal protection, their harms are no less real to the people who suffer them. Content governance has the potential to fill the role of mitigating these harms.

In crafting a model of harmful speech that would trigger mechanisms of content governance, this study primarily focuses on speech with the potential to cause reactive harms and physical harms. It does not focus on speech that can cause relational harms, namely defamation. This decision was made for several reasons. First, except for certain torts of invasion of privacy, First Amendment jurisprudence has all but precluded private individuals from recovering damages for reactive harms caused by other individuals. This lack of legal options for mitigating reactive harms has created a vacuum that means of private governance are able to fill. Meanwhile, defamation remains a tort in which private individuals in the United States have viable options for recovery against their alleged defamers, thereby giving digital intermediaries little reason or incentive to mitigate defamatory claims on the behalf of individuals.

Second, physical harms are given greater attention in this study because they remain the most grievous type of harm regardless of which set of rules—First

Amendment jurisprudences or digital intermediaries’ community standards—is doing the judging. However, the high standards that First Amendment jurisprudence places in front of state actors who wish to punish speech for its potential to cause physical harms can create a governance vacuum that digital intermediaries are able to fill. For example, posts on Facebook that advocate violent uprising may, in fact, lead some people to violently rise up against government officials. Chapter 3 will outline the reasons why the

Brandenburg “imminent lawless action” standard likely would not find that such speech

violated the law of incitement. However, the at-least perceived connection between the online speech and the physical harm caused could lead digital intermediaries to step in and remove the speech from its platforms in an attempt to prevent any further harm.

The discussion in this section of chapter 3 is framed around the following

argument: tolerance theory, put forth by legal scholar Lee Bollinger in 1986,³⁸ should be revitalized as the preeminent theory of freedom of expression in a communication

environment in which content governance has become a common tool for controlling free expression. Bollinger contends that by allowing extreme and hurtful views to be put forth into our public discourse, we are actively fighting our natural proclivity to want to be intolerant of these viewpoints—or any viewpoint we oppose, for that matter.³⁹ Tolerance theory is the best fit for the analyses within this study for several reasons. First, while other theories engage in apologetics of extreme speech as a necessary side effect of the central values the theories place upon freedom of expression, the central focus of

38 LEE C.BOLLINGER, THE TOLERANT SOCIETY:FREEDOM OF SPEECH AND EXTREMIST SPEECH IN

AMERICA (1986).

39 Id. at 109.

tolerance theory is extreme speech (Bollinger calls it “extremist speech”). Bollinger, himself, does not give an explicit definition for extreme speech, but he does leave clues on how a definition can be formed. Extreme speech, Bollinger says, is what “nearly all of us believe immoral and vicious.”⁴⁰ It “tend[s] to attract attention,” and “is very often the product or the reflection of the intolerant mind at its worst and, as such, an illustration to us of what lies within ourselves.”⁴¹

Second, tolerance theory posits that tolerance of extreme speech should end where significant harm begins.⁴² Understanding harm and its relation to freedom of expression is important because content governance is about commercial intermediaries finding a balance between upholding the values of freedom of expression and mitigating the potential harms that individuals can cause through UGC. Individuals’ ability to tolerate extreme speech represents the balancing point, and it is argued in this study that digital intermediaries play a crucial role in influencing individuals’ tolerance by how they govern extreme speech. Third, tolerance theory holds that not only is it a natural tendency of government to censor, as proponents of individual autonomy and marketplace of ideas theory proclaim;⁴³ rather, it is the natural tendency of every human being to censor, and champions of freedom of expression must constantly be on guard against attempts from powerful non-state actors to censor speech.⁴⁴ This concept matches the argument from

40 Id. at 124.

41 Id. at 126.

42 Id. at 192. Bollinger does not answer the question “When is speech so harmful it should be banned?” He does argue that “social” harm caused by allowing speech that society generally disapproves of is not sufficient to warrant proscription. Id. However, the principle of harm being the boundary of tolerance is an important one that fits the analysis in this chapter.

43 SMOLLA,supra note 31, at 51.

44 BOLLINGER, supra note 38, at 86.

Internet governance that non-state actors have great power to control speech, and that this power is worrisome due to the relative lack of transparency and standards employed in the process of controlling the speech.

Finally, tolerance theory is important because, at bottom, Bollinger’s claim is that the act of tolerating extreme speech is an act of mental growth. Bollinger urges reflection on how society tends to invoke community norms to silence extreme, potentially harmful or otherwise undesirable speech so that society may collectively strengthen itself. Global networked communication continues to put more and more examples of detestable speech in front of our eyes, meaning that there has never been a more important time for society to strengthen its resolve and support for extreme speech.

The overall goal of this chapter is to distill the key values of freedom of

expression from First Amendment theory and doctrine. This goal answers Lessig’s call for a discussion on our values of freedom of expression as we continue to understand the relationship between content governance and freedom of expression. Lessig and many other legal scholars argue that we should focus on “constitutional values”⁴⁵ (others call them “goals,”⁴⁶ “principles,”⁴⁷ or “ideals”⁴⁸). One such value, which Lessig argues is the preeminent value of the First Amendment, is to encourage mass participation in public discourse by individuals.⁴⁹ Similarly, law professor Jack Balkin argues that “a theory of

45 Supra note 24, at 269.

46 Ruth Walden, A Government Action Approach to First Amendment Analysis, 69 JOURNALISM Q. 65, 81 (1992).

47 Adam Candeub, The First Amendment and Measuring Media Diversity: Constitutional Principles and Regulatory Challenges, 33 N.KY,L.REV. 373 (2006).

48 Robert C. Post and Reva B. Siegel, Democratic Constitutionalism, in THE CONSTITUTION IN 2020 (Jack M. Balkin & Reva B. Siegel eds., 2009), at 30.

49 LESSIG, supra note 24, at 269.

freedom of speech justified in terms of its potential contributions to representative self-government seems altogether too narrow in the age of the Internet.”⁵⁰ The Internet, he argues, is proof that “the point of the free speech principle is to promote not merely democracy, but something larger: a democratic culture” defined by mass participation.⁵¹ The argument of this chapter is that promoting a democratic culture through a

commitment to facilitating individual speech on platforms and tolerating the extreme forms of speech that invariably come with such mass participation are the main values of freedom of expression by which the concept of content governance should be judged.

Chapter 4: “Heckler’s Veto 2.0: Speakers’ Rights v. Audience Rights in a