Three clusters of theoretical approaches have dominated political philosophy and constitutional theory about freedom of speech since the late Twentieth Century: epistemic theories, autonomy theories, and democratic theories. Scholars have increasingly favored democratic theories because they hold out hope of justifying robust free speech norms without relying on a tenuous empirical case about the epistemic effects of free speech or on any divisive or sectarian claims about non-political values: democracy is a value that all members of a political community might reasonably be expected to subscribe to. But what is democracy? Many democratic theorists of free speech subscribe to some version of deliberative democracy. For deliberative democrats, the object of democracy is a society’s formal political institutions. According to these theories, speech matters because it plays an important or indispensable role in allowing these institutions to function effectively and justly.
However, I argue that this conception of democracy, which is embedded in much contemporary free speech scholarship, does not fully capture the nature and value of democracy. Building on the work of George Kateb, Jack Balkin, and Seana Shiffrin, and on my own earlier work on cultural democracy, I argue that the normative core of democracy is the idea that the people, collectively, should rule over all the shared aspects of their lives. To secure a high degree of cultural democracy, a community must provide avenues through which citizens can influence one another and potentially change one another’s minds about all aspects of their shared lives. To achieve full cultural democracy, a community’s speech environment must enable people not only to rationally persuade one another about matters of public importance and convey mutual respect to one another as political equals but also allow people to influence each other in a less articulate and rational manner—to “democratically vibe” with one another. I go on to argue that a theory of cultural democracy can inform ongoing debates about the role of the state in regulating speech rules on large social media platforms. I suggest that First Amendment law should be friendlier to state regulation of platform speech like Texas H.B. 20 and Florida S.B. 7072 (both of which restrict the ability of social media platforms to “censor” user speech) than many critics of these regulations have thought.
Jonathan Gingerich works on foundational issues in ethics, aesthetics, political philosophy, and jurisprudence that have implications for constitutional law, property, intellectual property, and the legal regulation of technology. He is currently working on a monograph about the nature and value of spontaneous freedom–the freedom of acting in unplanned and unscripted ways–and its implications for ethics, politics, and law and technology. Professor Gingerich holds an A.B. from Georgetown University, a J.D. from Harvard Law School, and a Ph.D. in Philosophy from the University of California, Los Angeles.
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