Choosing Between the State and Social Media as the Arbiter of Decency and Truth

This paper examines the contrasting approaches to regulating hate speech and misinformation in Europe and the U.S., with a focus on the role of social media. Guided by interpretations of Article 10 of the European Convention on Human Rights, European nations maintain latitude to restrict speech harmful to society, including hate speech and misinformation. Conversely, in the U.S., the U.S. Supreme Court’s First Amendment jurisprudence places significant burdens on the State’s ability to regulate hate speech and misinformation. While hate speech and falsities can cause both individual and social harm, there are deleterious impacts of empowering the State to regulate these ideas. When the State can eliminate hate speech and false ideas from public discourse, society’s ability to challenge those ideas is diminished, resulting in indolent public discourse. Moreover, in democratic states, the majority will inevitably define hate speech and truth, and those definitions can change with control of the State. To ensure consistency and legitimacy as control of the State changes, an unfettered marketplace of ideas must be allowed to flourish. The importance of ensuring that unfettered marketplace of ideas has never been more important considering the rise of social media. When the State extends its regulation of hate speech and lies to social media platforms, it exerts control over the locus of the most diverse group of ideas in human history.