The Constitutional Dimension of Free Speech Under the Biden Administration

Abstract

The Biden administration has been confronted throughout its tenure with a major political-constitutional conflict over freedom of speech in the digital space as guaranteed by the First Amendment. The conflict is to be ascribed to the political-constitutional datum because, on the one hand, it seems to reflect a self-proclaimed ability of conservative political forces to set themselves up as supposed bastions of freedom of speech on the digital place as the ‘marketplace of ideas’. On the other hand, the political forces represented in the Biden administration 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 which are allegedly continuing in the current presidential election campaign. In the topic under discussion, as a result, the U.S. debate struggles to separate the legal datum from the political one, according to a dichotomous mainstream narrative. This consideration leads to leads to questions about the role played by the judiciary, and especially the Supreme Court, as an actor capable of standing or not in the role of synthesis (and if so, to what degree of neutrality) that it has often played in U.S. constitutionalism.

Keywords: Freedom of speech; First amendment; Supreme court of the United States; Judiciary; Social media platforms