ISSUE BRIEF: Speech and Its Relationship to Equality: Constitutional Values in the Digital Age

Understanding the constitutional duty to strike a balance between speech and equality can help inform efforts to address the immensely complicated and difficult problems of platform governance.

Summary

Our Constitution promises both free speech and equality. The First Amendment’s guarantee of freedom of speech ensures the structural role of free speech in a democracy. It safeguards democratic deliberation, protects individual autonomy, and prevents the government from silencing speakers it disagrees with. The Fourteenth Amendment’s guarantee of the equal protection of the laws promises equality under the law for all persons. This means that the government must respect the equality and dignity of every person residing in the United States and may not single out disfavored groups of people for discriminatory treatment. How should we reconcile these two co-equal constitutional values of speech and equality when they come into conflict? All too often, courts privilege speech over equality, pretending there is only a single constitutional value, rather than multiple values, at play. These are pressing issues both in the courts, where conservative activists are insisting that the First Amendment confers a license to discriminate, and outside the courts, where there is a robust debate over what free expression means in the digital age and how and whether to regulate hateful content on social media platforms and how to protect individuals from cyber harassment.
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Research on constitutional values in a digital era was in part supported by funding from Google.

CAC’s David H. Gans and Praveen Fernandes discuss the issue brief on #PurpleChairChat