Monday, June 6, 2022
Erin Miller, University of Southern California Law School, is publishing Amplified Speech in volume 43 of Cardozo Law Review. Here is the abstract.
This Article introduces the concept of amplification into First Amendment law. Amplification, or the size of the audience reached by speech, lies at the heart of many contemporary free speech struggles. Yet the concept is surprisingly absent as a category of analysis from constitutional doctrine and virtually undiscussed in legal scholarship. Amplification deserves its own set of legal rules and doctrines, because the right to amplify one’s speech serves the two core types of First Amendment interests—those of audiences and those of speakers—differently than the right to choose the content of one’s speech. The higher the degree of amplification, the greater the disparity. When it comes to audience interests, amplification via mass media platforms has unique potential to distort the marketplace of ideas that informs voting audiences. When it comes to speaker interests, greater amplification has only diminishing marginal returns for the speaker’s primary interest in autonomy, understood as the capacity for living one’s own life, because speakers need very large audiences neither to (a) form their own life plans nor (b) have the motivation to act on them. Thus, the right to amplify speech to very large audiences is justified by its benefits for audience interests rather than speaker interests, and so may be constitutionally regulated to preserve the integrity of democratic discourse for audiences. A central practical upshot is that certain carefully drafted legal rules on amplification, including campaign finance laws and social media regulations, should survive constitutional scrutiny.
Download the article from SSRN at the link.