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Choosing Between the State and Social
Media as the Arbiter of Decency and Truth
Douglas B. McKechnie,
Professor of Law, United States Air Force Academy
Právny obzor, 107, 2024,
special issue, pp. 4–20.
Published online: 20.1.2025
https://doi.org/10.31577/pravnyobzor.specialissue.2024.01
Abstract. 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.
Keywords: Free Speech,
Hate Speech, Regulation, Democracy, Social Media
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
THEORETICAL REVIEW FOR ISSUES OF STATE AND LAW.
Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).
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OPEN ACCESS