Beyond positive and negative: Developing a reflexive framework for first amendment theory

Abstract

Tracing back to the work of Isaiah Berlin and the debates of the Hutchins Commission, discussions of First Amendment theory have long been divided into interpretations of “negative” rights protecting speakers from interference and “positive” rights ensuring that the public has the right to a quality information system. This paper explores how a First Amendment framework consisting of these two approaches breaks down in a networked communication ecosystem in which the lines between communicator and audience are increasingly blurred. The analysis explores these questions amid ongoing debates over regulating platforms and the possibility of increased public intervention in the floundering news industry. The paper builds on previous scholarship that has deemed First Amendment theory “inadequate,” incorporating the work of Mike Ananny, Joshua Braun, Victor Pickard, Phillip Napoli, and others. It argues that the current information system is too complex for a simple binary approach to First Amendment theory. Instead, it calls for a reflexive approach that embraces how these perspectives interrelate, one that calls for protecting the rights of speakers, but doing so in a way that characterizes them as members of a larger collective of listeners whose interests must be served.