The First Amendment is a check on the state and has only been found to bind private actors in narrow circumstances when they adopt traditional state functions. In the predigital era, the solution was for dissenting speakers to book or build their own venues, or use commonly state property for their expressive purposes.
In the digital era, the solution is largely similar. Dissenting speakers have and continue to build their own platforms and forums.
There is no scarcity in digital real estate.
Indeed, online, the scattered supporters of small causes can form communities without regard for geography, when before they might not have known of each other’s existence.
Because speech rights turn on property rights, be they rights to computer, radio, or quill, reallocating these publishing resources to perfect speech rights will render them brittle and politically contingent. However, there are some areas in which the state has inappropriately placed its thumb on the scale. The Computer Fraud and Abuse Act prohibits exceeding authorized access to a computer system, effectively criminalizing certain private terms of service violations. This has had anticompetitive effects, allowing dominant platforms to wave the threat of criminal sanctions at startups that would allow you to take your network with you.
Many alternatives to mainstream platforms have already been established, and the market for publishing tools is often larger than it appears. Mainstream speech platforms such as Facebook and Twitter compete with personal websites, hosted blogs, via Blogger or Blogspot, newsletter platforms, more private spaces such as Discord, Clubhouse, or Telegram, ideologically differentiated sites such as Parler and Gab, and decentralized protocols, such as Urbit, LBRY, or Mastodon.
Decentralized solutions are particularly exciting, because they eliminate any capturable network-wide authority.
Users may choose who they engage with, or what information they receive, but cannot be unilaterally removed from the network. While decentralized solutions offer permissionless publishing, they are, for the moment, less user-friendly than centrally administered platforms.
Any legislative reform effort should recognize that the internet is a dynamic ecosystem.
Dominant firms compete with one another and face numerous startup challengers. Regulation imposes costs more easily borne by incumbent firms. Attempts to alter the status quo may inadvertently cement it.