Ships still passing in the night? The deepening European–US divide on regulating the online public sphere

This chapter argues that long-standing doctrinal, conceptual and constitutional divides between European and US approaches to free speech law have only been deepened by the emerging, sharply-divergent approaches to regulating the online public sphere. It expounds this thesis via comparative analysis of constitutional design, influence of 'the marketplace of ideas' theory, privacy and the right to be forgotten, defamation and disinformation, hate speech, terrorism-related material and regulation of social media. It argues that Europe has taken important steps to empower individuals against corporate media power, in stark contrast to the US, which continues to place enormous faith in the marketplace to restrain corporate abuses and neglect. It concludes that US and European scholars can nevertheless fruitfully engage with each other: recent European experience can inform current US debates about Sullivan and reforming CDA 230; European scrutiny of its regulations on offensive and hate speech should be influenced by the US constitutional prohibition against viewpoint discrimination.