Continuities and Discontinuities. First Amendment and Digital Free Speech in U.S. Constitutionalism

The Biden administration’s first two years have recently been facing a major political-constitutional conflict over freedom of speech as guaranteed by the First Amendment. The conflict is to be ascribed to the political-constitutional datum because it seems to reflect a self-proclaimed ability of conservative political forces (until the 2022 midterm elections devoid of power at the federal level) to set themselves up as supposed bastions of freedom of speech on the digital space as the ‘marketplace of ideas’. On the other hand, the political forces represented in the current Biden presidency have never hidden their willingness to take decisive action on the so-called ‘misinformation’ that conservative political forces have allegedly brought about during the Trump administration and in the handling of the pandemic. Beyond the political debate, the legal issue seems to be ascribed to the possible applicability or otherwise, to internet providers and social media platforms, of the regulatory provisions and jurisprudential principles enunciated for free speech with reference to different media. This paper, after providing an overview regarding the constitutional protection provided by the First Amendment to freedom of speech, aims first to offer an in-depth of the § 230 of the Communication Decency Act of 1996, which provides special protection to internet service providers from liability for content created by others. Secondly, the paper will dwell on the conflict in the matter that exists between the federal and state levels both at the regulatory and judicial levels: to this effect, that the contrast between the fate of two ‘anti-censorship’ state laws, namely the Texas H.B. 20, (whose constitutionality was recognized by the Fifth circuit), and the Florida S.B. 7072 (sanctioned instead by the Eleventh Circuit), is emblematic. Until a landmark pronouncement by the Supreme Court, the debate that the present contribution aims to analyze seems destined to proliferate.