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Brooklyn Law Review

Abstract

The United States government has long wrestled with the link between speech and violence, periodically employing speculative claims of potential violence and law-breaking to suppress political speech in times of national insecurity. By the late 1960s, however, the Supreme Court fully operationalized the First Amendment’s premise that most government speech suppression is antithetical to self-government, individual autonomy, equality, and liberty. The Court therefore, required immediacy of potential violence before the government could punish speech advocating such illegality, but left private actors free to censor and suppress speech. Today, social media companies, at the behest of the government, are doing what the government cannot. This symposium article draws attention to continued congressional pressure on private companies to suppress social media speech that Congress itself cannot restrict because the speech involved—online terrorist extremist propaganda and recruitment—has no imminent link to violence or other law-breaking. Concern regarding such speech is warranted, given links between such speech and senseless murders. Yet the official characterization of protected expression as a viral transmitter of a social media-spread contagion of violence has translated into state suppression by proxy. Pressured by the government, private social media companies have banned large swaths of speech linked to political expression on their platforms. This article highlights this phenomenon of American state suppression by proxy. This largely descriptive symposium piece also poses, without answering, the question of whether this private speech regulation carries the same normative risks as government suppression. Does lowering the high constitutional bar that protects potentially dangerous but currently lawful speech risk degrading deliberative democratic self-government by limiting expression of politically-valuable speech

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