Toward a Redistributive Approach: Addressing the First Amendment's Ideological Drift in the Digital Age

In the internet’s early days, First Amendment values laid the foundation for a free and open cyberspace. For a time, there appeared to be agreement among legislators, industry, and the public that the internet should be afforded great deference for the sake of innovation and technological development. In recent years, however, powerful technology companies have appropriated free speech principles to maintain a business model that prioritizes unfettered user engagement and data extraction without the threat of litigation. Consequently, laws rooted in the First Amendment, designed to redistribute legal rights from incumbents to the public now do the opposite: concentrate legal rights away from the public and to powerful companies. No industry has benefitted more from this shift than the technology industry. This Paper grapples with the current state of First Amendment interpretation, particularly as it relates to the technology industry, which has drifted from a decentralizing to a centralizing orientation. It offers reflections on the causes and consequences of interpretive missteps and proposes high-level principles for reversing this drift. To that end, this Paper surveys two examples: Section 230 of the Communications Decency Act of 1996 and fair use in the Copyright Act of 1976. Section 230 was passed in 1996 to nurture the internet in its infancy. However, early judicial interpretations of Section 230 failed to sufficiently consider changes in technology, entrenching virtually impenetrable liability protections for social media companies. Fair use, a redistributive legal doctrine that historically provided exceptions to educators, critics, and parodists, is now the go-to legal defense for AI companies to justify the theft of human-created work to train their models. These examples represent a shift in First Amendment interpretation that prioritizes powerful technology companies’ interests. Ultimately, this Paper concludes that a redistributive approach to First Amendment interpretation—one that explicitly accounts for power asymmetries and strives for distributive justice—could reverse speech’s ideological drift, and foster a safer and more democratic internet.