Regulating Speech Online: A Comparative Constitutional Perspective

Regulating online speech is a key concern for lawmakers in several countries. But national and supranational regulatory efforts are being met with significant criticism, particularly in transatlantic perspective. Critiques, however, should not fall into the trap of relitigating debates over the permissibility of regulating speech. I argue that the normative balance between speech protection and speech regulation as a constitutional matter has been struck in different ways around the world, and online speech is unlikely to upset this fundamental balance.
This Essay untangles arguments based on objections to speech regulation in general from problems associated with designing mechanisms to regulate online speech consistent with varying constitutional frameworks. It then distinguishes “old school” and “new school” speech regulation in comparative perspective. Finally, it sketches a normative framework for evaluating regulatory efforts in light of different constitutional frameworks.