Between the “original Rough draught” of the Declaration of Independence and the final draft we all know, Thomas Jefferson changed a word in the iconic line proclaiming that governments are instituted to secure rights. He originally wrote “that to secure these ends, Governments are instituted among Men” (White Reference White1978, 249; emphasis added). Although ostensibly small, this change suggests both the primacy of rights in the American imagination and the possibility that other concepts might also structure political discourse. Today, rights often serve as a starting point in American politics, as a normative foundation, and as a language of public discourse. The freedom of speech is a paradigmatic example of rights’ stature in political life. Laws that restrict particular content or viewpoints in speech are subject to the highest level of scrutiny in constitutional law. Even in more popular discourse, Americans frequently understand their freedom of speech in absolute terms (Glendon Reference Glendon1993; Greene Reference Greene2021).
Common to these trained and untrained understandings is the premise that the content of rights, such as speech, can be known by turning to the right itself. Perhaps the right may stand in competition with other interests or needs of the polity, but importantly, the right in question is the principal reference point of such inquiries. Balancing exercises may yield wider or narrower applications, but the right is deemed to be constant in the course of that balancing. Likewise, rights are often conceptualized as matters of law, in static terms, and are primarily upheld by courts.
Rights-centric understandings may be widespread in American politics.Footnote 1 However, they are but one mode by which to formulate such questions. Rapid developments in technology illustrate how other approaches to deliberation may suit such complex and elusive issues. In debates about freedom of speech and social media, the rights and interests of a wide range of actors are at stake, from the users posting content, to those people somehow implicated in or affected by their posts, and even the platforms themselves. Amid this nexus of potential rights-bearers in social media debates, nonstate actors emerge as potential duty-bearers as well (Bambrick Reference Bambrick2025; Haupt Reference Haupt2025; Pollicino Reference Pollicino2023). Simply put, an approach that proposes to understand the issues at stake primarily in terms of rights—that is, a rights-centric approach—is inadequate to the task of governing in this field. Prompted by the multifaceted nature of debates over social media, we argue for another mode, an ends-centric mode, in which to deliberate political questions, particularly rights questions.
As its name suggests, an ends-centric mode is characterized by locating ends, rather than rights, at the center of political inquiry. In this article, we argue that rights questions may be understood and deliberated through an ends-centric approach. Specifically, an ends-centric approach understands rights in terms of the ends that underlie them (For what reasons do we call something a right at all?), as well as the ends with which rights come into conflict (How do rights measure up against competing ends?). In posing these questions, an ends-centric conception of rights is more dialogic. Likewise, the ends-centric mode of inquiry requires different faculties than does a rights-centric mode. Specifically, it calls for deliberation in ways frequently associated with legislative institutions and, from a theoretical perspective, contestation associated with the republican political tradition.
Because competing ends actually bear on how rights are formulated, this mode of inquiry is also less susceptible to such pathologies as rights absolutism. Rather than beginning with the fact that the freedom of speech appears in the Bill of Rights or is prioritized in Supreme Court doctrine, an ends-centric approach to rights underscores a contingent element in rights—that rights may be shaped both by the issues in play in a given historical moment and by the enduring needs of the republic. Indeed, in the twenty-first century, new digital technologies such as social media change the conditions under which speech is exercised in the polity and the very boundary lines of the right. Thus, in constitutional cultures such as that in the United States that tend so strongly toward rights-centrism, this alternative mode of political deliberation may serve to carve out space for different kinds of actors and institutions to participate in rights reasoning.
In the next section, we explain our ends-centric approach, arguing that it opens channels of rights reasoning for other constitutional actors and serves as a corrective to such excesses as rights absolutism. It also explains how the ends-centric approach may be grounded in the republican political tradition. The following section, “Lessons in US History,” recounts debates concerning freedom of speech and the press at two points in American history, the early republic and the mid-twentieth century. Reconstructing these historical discussions shows how the interlocutors deliberated the ends connected to and competing with rights in their respective moments. Consistent with an ends-centric approach, these debates illustrate how understandings of rights emerge from a consideration of other needs of the polity. Whereas rights-centric reasoning would look for a more ahistorical understanding with greater continuity of a right’s content across eras, an ends-centric approach expects some change according to the exigencies of a particular moment in time.
Likewise, the section “Ends-Centrism in New Media” demonstrates the presence and value of the ends-centric approach in debates surrounding social media. Lawmakers and concerned citizens recognize a range of interests at stake in digital spaces today—from protecting user speech and the safety of children online to curbing misinformation and hate speech. Although we would not draw a false equivalence, old media is one of the closest analogs available to social media today; aspects of contemporary debates are even anticipated in debates over the press and free speech considered in the section “Lessons in US History.” Yet, it is the discontinuities across eras (Koltay Reference Koltay2019) that underscore our fundamental point: an ends-centric approach allows for reassessing the same rights in light of changed circumstances, thus enabling fuller consideration of the needs involved in keeping a republic.
Through our analyses of both political history and contemporary issues, we implicitly argue for a shift in what many think it means to take rights seriously (Dworkin Reference Dworkin1978), arguing that it also involves taking ends seriously. As another mode by which to engage in political reasoning, including reasoning about rights, the ends-centric approach need not and, given persisting forces of political culture and institutions, likely could not replace rights-centric understandings altogether. Ultimately, we argue the benefit of rights-centric and ends-centric modes operating alongside each other across constitutional fora as the polity continually deliberates rights questions in old and new forms. To this end, this article does the foundational work of showing the value and possibility of making discursive space for more actors to reason about rights in different ways.
Rights, Ends, and Republicanism
An Ends-Centric Approach to Rights
In On Liberty, John Stuart Mill (Reference Mill, Philp and Rosen2015, 15) writes, “The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs.” It is in this same work that Mill argues his maximal position on free expression. Although Mill’s thinking is admittedly complex, his “free marketplace of ideas” concept has often been invoked in American political discourse and even treated as an absolute principle in debates over freedom of speech and of the press.Footnote 2 In Abrams v. United States, a crucial premise of Oliver Wendell Holmes’s dissent draws from Mill’s argument that truth would prevail in market competition, even as other potentially powerful actors became more involved in public debate alongside citizens.Footnote 3 This premise was contestable at the time and remains so, given the proliferation of information, to say nothing of misinformation, in the digital realm today (Hasen Reference Hasen2022; Hook and Verdeja Reference Hook and Verdeja2022). Holmes’s rationale nevertheless became crucial in expanding protections of speech and other rights, reifying understandings of liberty that many argue are core to American politics (Hartz Reference Hartz1991; Pangle Reference Pangle1990; Schmitt and Webking Reference Schmitt and Webking1979; Storing Reference Storing and Bessette1995). US jurisprudence, particularly in the 1960s, continued to expand the bounds of rights, including free speech, under the Warren Court. The Supreme Court struck down various restrictions on speech, echoing the concept of a marketplace and Holmes’s dissent in the process.Footnote 4 Today, the United States is regarded as having some of the most ambitious speech protections, even extending this right to protect expenditures of corporations in political campaigns as speech.Footnote 5 The techno-libertarian movement advocating an entirely free internet evinces a similar rights-centric instinct (Martin Reference Martin2022).
Such developments demonstrate how rights claims can be expansive and tend toward absolutism. Indeed, writing nearly 30 years apart, Mary Ann Glendon (Reference Glendon1993) and Jamal Greene (Reference Greene2021) both observed how an unchecked rights-centrism devolves into rights absolutism and becomes deleterious to the polity. What defines rights-centrism, in both its absolutist and more mundane forms, is the way rights are conceived as fixed and apolitical. Those partaking in what Glendon (Reference Glendon1993) calls “rights talk,” for example, often proceed as if the mere assertion of their rights is the end of the inquiry. Alasdair MacIntyre went so far as to argue that underlying rights is mere emotivism, rather than any coherent moral system. On this basis, MacIntyre (Reference MacIntyre2007, 11–14, 68–74) concludes, one could employ the language of rights to support any moral claim one may choose.Footnote 6 In legal fora, rights-centrism may characterize various approaches to interpretation, from the textualism of Hugo Black to appeals to constitutional penumbras a la William O. Douglas.Footnote 7 In either case, rights are treated as a basic unit of political discourse, the moral weight of which is taken as granted: they inhere in the Constitution, one way or the other, and only require interpretation or implementation. Fallon (Reference Fallon2001) demonstrates how this is true not simply of originalism but even in Dworkin’s moral reading.Footnote 8 Recently, the Supreme Court has moved toward the adoption of bright-line rules related to text, history, and tradition, and away from means-ends scrutiny in adjudicating rights (Girgis Reference Girgis2025; Procaccini Reference Procacciniforthcoming). This instinct to “rule-ify” rights jurisprudence even more raises the question of what other modes of deliberation may be possible across governing institutions that would give rights questions a more complete treatment in constitutional politics.Footnote 9
We argue that an alternative mode of reasoning, which would probe the empirical realities and philosophical motivations behind calling something a right, can improve deliberation on rights questions and mitigate the excesses of rights-centrism. Specifically, an ends-centric mode applied to rights questions considers additional elements, opening conversations about rights to other actors—that is, actors other than courts—that are equipped to consider and weigh those additional elements. When employed in rights questions, the ends-centric mode inquires into the rationales for calling something a right at all and weighs them against other ends.Footnote 10 By putting ends at the center in this way, this mode accounts for competing ends in the very formulation of rights. This attention to varied and competing ends allows the ends-centric approach to attend to the specific circumstances of a given moment and to better resist rights absolutism. It both depends on and fosters more deliberation when applied to rights questions, understanding rights in more political terms than is often the case in American constitutionalism. An ends-centric analysis of Abrams v. United States, for example, highlights how Holmes’s understanding of speech hinges on empirical claims about the marketplace of ideas that may prove more or less accurate across time, place, and subject matter.
The aim of applying an ends-centric approach is not to demote rights always in favor of other exigencies. Rather, by acknowledging the complex fields within which rights claims are made and argued, this mode of discourse serves as a complement or a counterbalance to more typical rights-centric approaches. Some institutions may be better suited to such inquiries than others. Thus, we fully expect rights-centric arguments to persist, including in courts’ enforcement of rights. Nevertheless, we maintain that rights debates often call for other kinds of arguments. An ends-centric approach to rights questions gives other actors, beyond the usual suspects, renewed capacity and reason to take up the mantle of rights reasoning and enforcement.
To this extent, our article builds on the long and still-growing literature that aims to decenter high courts in the constitutional enterprise, both in the American context (Finn Reference Finn2014; Fisher Reference Fisher1988; Kramer Reference Kramer2004; Sager Reference Sager2006; Thomas Reference Thomas2008; Tushnet Reference Tushnet2000; Weiner Reference Weiner2019; Whittington Reference Whittington2001) and globally (Gardbaum Reference Gardbaum2013; Kavanagh Reference Kavanagh2023; Loughlin Reference Loughlin2022; Waldron Reference Waldron2006; Webber et al. Reference Webber, Yowell, Ekins, Köpcke, Miller and Urbina2018). This extant literature makes compelling theoretical and institutional arguments that constitutional questions ought not to be monopolized by courts. We follow this prior work in the conviction that constitutional conversations are impoverished when discourses presuppose that, for example, rights questions are fundamentally legal in character or fully resolvable through doctrinal tests. We maintain that legal and juridical approaches to rights questions have their merits, which may indeed include an appreciation that rights questions are somehow different from other political issues. Nevertheless, to reduce rights questions solely to these approaches, as the public discourse is sometimes wont to do (Glendon Reference Glendon1993; Greene 2001), risks minimizing their important moral and policy dimensions. Perspectives that take rights as granted in these ways leave unplumbed the full extent of these other kinds of conversations that the polity ought to be having.
This article highlights a different language, a mode of inquiry, by which other actors and institutions may indeed enter the constitutional conversation and do so in ways that better match their distinct institutional capacities. Insofar as this ends-centric mode begins with questions different from those that inform rights-centric perspectives, it also engages different kinds of reasoning, related to morality and policy, for example, and thus yields different kinds of answers. With their distinct terminologies, frameworks, and limitations, the rights-centric and ends-centric modes each have their own integrity, but from a broader constitutional point of view, each are incomplete on their own. Rather than displace rights-centrism or the courts’ role in rights enforcement, the ends-centric mode prompts other institutions to engage in rights reasoning on a more level playing field, elevating the larger conversation and process of deliberation.
One corollary of our argument, therefore, is to bring the Madisonian logic of the separation of powers (Bessette and Tulis Reference Bessette and Tulis2010; Thomas Reference Thomas2008) more fully into the realm of rights—leveraging diverse institutional perspectives and capacities in a multi-sided dialogue over rights questions. This is in contrast both with understandings of courts as the primary “forum of principle” (Dworkin Reference Dworkin1981) and with theories of political constitutionalism that would relegate the courts to the background. Indeed, our argument proposes a dialogic understanding in the double sense of calling for dialogue about the substance of rights, which in turn facilitates dialogue among institutions.Footnote 11
Ends-Centrism in American Constitutionalism
Ultimately, this argument for ends-centrism amounts to a call to reinvigorate a vital constitutional practice that has a foundation in American political thought and history. To this extent, this mode is far from novel but has precedent in American politics, as evinced by the historical episodes we recount in the next section. In foregrounding ends, the very content or boundary lines of the right are shaped by competing ends. This may seem foreign, even dangerous, from the rights-centric perspectives that dominate in American politics. However, the spirit of this ends-centric approach finds support in Federalist 84, where Hamilton argues that the protection of rights may actually be stymied by writing and adhering to a written catalog (Hamilton, Madison and Jay Reference Hamilton, Madison, Jay and Rossiter2003; see also Arkes Reference Arkes1992). In fact, important political actors and thinkers in the early republic took for granted that the Bill of Rights was merely the start of the inquiry at best and that constitutional actors would need to “determine” the content and limits of these rights, as well as other rights not codified (Campbell Reference Campbell2025). Moreover, the adoption of English common law meant that an immense body of case law already offered many presumptive determinations to shape the contours of the new rights. For example, as the next section discusses, the preexisting law of libel influenced how the framers would understand freedom of speech and its limits. Some scholars advocate approaches similar to this process of determination for understanding rights even today. Grégoire Webber (Reference Webber, Jackson and Tushnet2017, 90) explains, “The subject matter and content of any one right’s guarantee cannot responsibly be defined until one has taken into account the limitations justifiable in a free and democratic society, being a society that is free and democratic in part because everyone has rights” (see also Schmitt and Webking Reference Schmitt and Webking1979; Webber et al. Reference Webber, Yowell, Ekins, Köpcke, Miller and Urbina2018).
Understanding rights in terms of ends admits more space for values such as responsibility, sociality, and compromise, which are often underemphasized in the American imagination but arguably are crucial to the health of the polity (Glendon Reference Glendon1993; Green Reference Greene2021). One might identify various ends, beyond rights, in the principles to which a polity commits in constitutional texts; in addition to such principles as liberty and equality out of which rights tend to grow, a constitution may commit to solidarity, dignity, security, welfare, and still other principles.Footnote 12 In a lecture on social media regulation, Tarunabh Khaitan (Reference Khaitan2024) suggests adding verity to such lists of constitutional principles, a value that even Thomas Jefferson and James Madison discussed as imperative to constitutional vitality, as the next section recounts. Regardless of whether such articulations of ends in a constitution are deemed justiciable, they may bear on what political actors understand as corollary ends to pursue in legislation and policy.Footnote 13 When considering the regulation of media, for example, policy makers may view a variety of ends as important, including fostering accurate sources of knowledge and facts, quality venues for opinion formation and consensus building, and the presence of diverse outlets with tempered profit incentives.Footnote 14
In foregrounding ends, including competing ends, rather than always prioritizing codified and doctrinal expressions of rights, this mode is sensitive to the fact that, in some instances, there may be no predetermined correct answer, no fixed content of a right to ascertain (Waldron Reference Waldron2006; Webber Reference Webber2009; Reference Webber, Jackson and Tushnet2017; Webber, et al. Reference Webber, Yowell, Ekins, Köpcke, Miller and Urbina2018). Rights may be in play and may deserve protection, but how we formulate them and their boundary lines may be best understood as an open question. An inescapably political process of “determining” rights becomes necessary (Campbell Reference Campbell2025). An ends-centric approach to rights thus differs from rights-centrism in inviting politics, rather than relying on textualist or doctrinal formulations, for example.Footnote 15 By foregrounding the myriad relevant ends implicated in rights questions, the ends-centric mode admits conceptions of rights in which their boundary lines shift, creating more space for institutions with capacities different from those of courts to participate in rights reasoning. Arguably, it involves more moral reasoning than American courts often admit to and therefore does justice to the full moral claim that rights presume to make (Arkes Reference Arkes1992; Jacobsohn Reference Jacobsohn1985). In a word, the nature of these questions may be such that they require more creative or “authorial” capacities than the courts alone may contribute to the constitutional discourse (Bellamy Reference Bellamy2013, 1030; Pettit Reference Pettit, Shapiro and Macedo2000).Footnote 16
Leveraging a kind of Madisonian logic of interplay among different institutional perspectives, a la Federalist 51, may also be better from the perspective of protecting rights (see also Lincoln’s First Inaugural Address). Turning to the anti-canon of constitutional law (Greene Reference Greene2011), one finds that rights-centric approaches have resulted in injustice and the deprivation of rights. Consider how the judgments in Dred Scott v. Sandford, Plessy v. Ferguson, and Lochner v. New York all claimed to protect some right but today are recognized as egregious denials of rights and justice.Footnote 17 Some scholars attribute these kinds of episodes to the same rights-centric approaches we examine here (Storing Reference Storing and Bessette1995).
The ends-centric mode, in contrast, elevates a separation-of-powers logic in rights reasoning, opening rights questions to actors and institutions with different capacities that equip them to think about rights in different ways (Bessette and Tulis Reference Bessette and Tulis2010; Thomas Reference Thomas2008). By thus empowering other actors and offering a language that suits different institutions’ faculties, an ends-centric mode diversifies, so to speak, the sources that may protect rights and so redefines what it means to take rights seriously (Dworkin Reference Dworkin1978). Again, the courts need not be the sole forum of principle, nor should legislatures be relegated to being merely fora of policy (Dworkin Reference Dworkin1981; Fallon Reference Fallon2001). Rather, matters of principle, including the protection of rights, are often intertwined with policy considerations and, in such cases, should be treated accordingly (Sunstein Reference Sunstein2004). The ends-centric approach supports exactly this kind of deliberation.
Of course, admitting an alternative ends-centric approach to rights reasoning does not guarantee against future abuses. However, it serves to (re)empower institutions such as legislatures to engage in these questions alongside courts. Put differently, it admits a more legislative, even “authorial” (Bellamy Reference Bellamy2013, 1030; Pettit Reference Pettit, Shapiro and Macedo2000) language into rights reasoning, so that other institutions may take ownership of protecting and determining rights. Indeed, Congress has not always waited for the courts to interpret rights before taking action. In passing the Civil Rights Act of 1875, for example, the Radical Republicans argued for a particular interpretation of the Fourteenth Amendment, specifically that Congress’s power of enforcement under Section 5 allowed the legislature to extend the guarantee of equal protection against nonstate actors (see also Bambrick Reference Bambrick2025, chap. 3; Baude, Campbell, and Sachs Reference Baude, Campbell and Sachs2024, 1246). The Supreme Court proceeded to foreclose this interpretation, however, in the Civil Rights Cases (1883).Footnote 18 Eighty years later, members of Congress contemplated reviving the Section 5 argument as the basis for the Civil Rights Act of 1964 but famously chose to ground its authority in its commerce power to comply with the Supreme Court’s doctrinal status quo. In other words, Congress actively chose to eschew the language of rights out of excessive deference to the Court. Ironically, memos between the justices from the time suggest that at least two of them would have accepted Congress’s bid to reclaim broader Section 5 powers in the Civil Rights Act of 1964 had it only made the constitutional argument (Schmidt Reference Schmidt2010, 805). An ends-centric mode is not mutually exclusive with courts continuing to decide rights questions, but it would give other actors more constitutional space to reenter the dialogue in such cases as this, staking ground also to determine and protect rights.
What capacities, then, are suited to an ends-centric mode of reasoning? We conceive of ends-centrism as following insights of republican theory. Historically, this political tradition admits of the community’s needs, indeed a common good, that cannot be summed up in terms of rights or negative conceptions of liberty.Footnote 19 Moreover, although republican thinkers differ on what role courts may properly play in political life, they generally put a premium on representative institutions and deliberative processes.Footnote 20 Republicanism thus seems a plausible theoretical home for our ends-centrism: it is ultimately aimed at thawing rigid understandings of rights that neglect the variety of ends and duties that keep republics functioning vitally (Weiner Reference Weiner2019). Accountability to popular will, deliberation, and contestation in politics are all commitments associated with republicanism and features that facilitate the ends-centric mode we describe here. In much the same way that debate and contestation are crucial to republican politics (Shumer Reference Shumer1979, 14–15),Footnote 21 an ends-centric view likewise calls for full deliberation of the many, often changing, exigencies of the polity.
Republican political thought also attends to the fact that rights exist in (indeed, are protected in) particular communities, intentionally considering the community as an entity of its own that needs to be sustained.Footnote 22 Similarly, republican theory and politics are more comfortable with the idea that citizens and even corporations have duties and with the possibility that rights may sometimes run out where other ends of the community begin (Bambrick Reference Bambrick2025). That private actors may bear some responsibilities for the ends of the community is important in digital politics, for example, given the central role of nonstate actors such as social media and tech companies (Bambrick Reference Bambrick2025; Koltay Reference Koltay2019). Our ends-centric approach attempts to circumvent different possible absolutisms that may arise in such questions—from the more severe communal understandings associated with some versions of civic republicanism to those absolutist understandings of rights associated with some versions of liberalism. In this way, ends-centrism may be understood as taking a step back but, emphatically, not going all the way toward older understandings of republicanism that maintain some conception of community and a common good irreducible to individual rights.Footnote 23
The ends-centric mode thus finds validation in republican theory, insofar as this tradition privileges faculties associated with actors other than courts and elevates goods other than rights as objects of politics. American political thought maintains much space for such principles of republican theory. Jefferson may have changed the wording of his famous line in the Declaration to “rights,” but as the next section shows, even he understood rights as informed by the complexities and flux of the larger political environment. The critical point of an ends-centric approach and of the support it finds in republicanism is that rights are not the sole starting point or primary object of politics; rather, ends beyond rights ought to be articulated in the larger debate insofar as they are also fundamental to constitutional health.
Lessons from U.S. History: Rights and Duties of the Press
History offers both precedent and sight lines for mapping ends-centered, rather than rights-focused, discourses. Specifically, debates related to free speech and a free press offer preliminary insights on which to build. Although the Bill of Rights does not elaborate the meaning either of freedom of speech or of the press, constitutional interpretations have since distinguished them.Footnote 24 The former now connotes a right of individuals to express their thoughts, regardless of viewpoint. The latter has often referred to the protection of the press as the fourth estate, a public pillar of republican government with obligations that are as much expected as unwritten in law. Although as a matter of constitutional law, freedom of speech now subsumes the rights enjoyed by the press (Andersen Jones and West Reference Andersen Jones and West2022; Levy Reference Levy1963a), in past discussions, it was in freedom of the press, rather than individual freedom of speech, where duties and ends were most salient. Among the varying ends tied to securing freedom of the press, we emphasize arguments for the press as an outlet of political expression and a source of knowledge for an informed citizenry. These interrelated ends were contested and briefly settled in the founding period and later reevaluated by such figures as Walter Lippmann and John Dewey in the twentieth century amid the rise of monopolistic press industries, the growth of a complex society, and the threat of government censorship and propaganda. Despite the technological transformations of the twenty-first century and the marginalization of the traditional press, echoes of earlier concerns recur in present debates about social media and underscore the need to reassess prior settlements on freedom of speech and the press with changes in the technical and social landscape, as we discuss in the section, “Ends-Centrism in New Media.”
The Founding Period
Although the Constitution offered a basis for free speech and a free press, its notions of them were surprisingly vague (Levy Reference Levy1963a, 225): it left the particular forms that these rights would take to be determined through subsequent local debates. One of the first issues that would bring political observers and institutions to deliberate the contours of a free press was the Sedition Act in 1798. Seeking to curb threats originating from revolutionary France, a Federalist-controlled Congress passed this act prohibiting citizens from critiquing the federal government on penalty of imprisonment and a fine. In a word, it pitted the ends served by a free press against other competing ends, such as national security and veracity.
Political commentators did not presume that the First Amendment provided the answer to this question. Instead, major arguments cited particular ends served by this right, including the way a free press provided an outlet for political speech, thereby allowing citizens to critique the government, hold those in power accountable, and check government power over public opinion.Footnote 25 Moreover, the proliferation of presses across the country circulated ideas and connected fellow citizens across the vast territory.Footnote 26 Some articulated other ends, however, such as safeguarding the veracity of information and providing for national security. The Federalist Party voiced concerns about preventing intrigue and consequent divisions between the American people and their government (Halperin Reference Halperin2016, 50). To the extent that foreign misinformation might threaten the stability and survival of the nascent republic, such concerns were valid on their face.Footnote 27 Consistent with English common law, moreover, the right of the press to publish without prior restraint was not understood to protect the publishing of “false facts” and seditious libel (Levy Reference Levy1963a, xiii). Thus, the general content of the Alien and Sedition Acts was not necessarily beyond the pale at the time. Still, under the Adams administration, these laws threatened to control public opinion and potentially consolidate one-party rule.Footnote 28 Amid this ambivalence surrounding the right to press freedom, none other than James Madison and Thomas Jefferson gave voice to the different sides, indeed the different ends, at stake.
Madison’s report on the Virginia Resolutions paved the way for a new libertarian position in arguing that, particularly with respect to political expression, the press must be exempt from restraint by the executive and legislative branches, even after publishing pieces critical of the government and its officials. Madison acknowledged his opponents’ legitimate fear of a licentious press, but he wrote, “Some degree of abuse is inseparable from the proper use of every thing” (Madison Reference Madison and Ketcham2006c, 256). Behind Madison’s acceptance of those unchecked dangers was a genuine belief that reason would ultimately triumph:
And can the wisdom of this policy be doubted by any who reflect, that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity, over error and oppression; who reflect that to the same beneficent source, the United States owe much of the lights which conducted them to the rank of a free and independent nation; and which have improved their political system, into a shape so auspicious to their happiness. (Madison Reference Madison and Ketcham2006c, 256)
He did not coin the phrase “marketplace of ideas,” but he anticipated it and how its exchanges would move society toward greater truth and enlightenment. The threat of government control over public opinion proved far more dangerous for Madison than the temporary spread of falsehood, misinformation, and slander. Therefore, in his understanding, a free press would, on balance, serve the ends of providing accurate information and promoting an informed citizenry. Moreover, it might counter political consolidation that undermined the power of the statesFootnote 29 and muted the voice of the people (Madison Reference Madison and Ketcham2006b, 210).Footnote 30 In a way similar to how proponents of open access to digital spaces argue today, Madison thought that easily accessible presses could serve as a medium for public opinion, bringing citizens closer and providing a forum over the country’s vast distances.
Jefferson also opposed granting the federal government the power to punish false facts and seditious libel, but only because he thought these were prerogatives of the states (Levy Reference Levy1963b, 46). Indeed, the First Amendment did not originally constrain state governments.Footnote 31 Jefferson’s Kentucky Resolutions declare that the states or the people retain “the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use be tolerated rather than the use be destroyed” (Watkins Reference Watkins2004, 166). For a long time, Jefferson remained unconvinced that the harmful branches of the press would give way to greater truth. In 1807, he wrote,
To your request of my opinion of the manner in which a newspaper should be conducted, so as to be most useful, I should answer, “by restraining it to true facts and sound principles only.” Yet I fear such a paper would find few subscribers. It is a melancholy truth, that a suppression of the press could not more completely deprive the nation of its benefits, than is done by its abandoned prostitution to falsehood. Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle. The real extent of this state of misinformation is known only to those who are in situations to confront facts within their knowledge with the lies of the day. (Jefferson Reference Jefferson1907a, 224).
Jefferson thus weighed the benefits of a less-constrained press against the adverse effects of “misinformation” on the citizenry and republic, initially finding the latter more compelling than did Madison. Jefferson came closer to the Madisonian position over time, however, in favor of unfettering freedom of the press from even state-imposed restraint based on seditious libel and veracity. Nevertheless, he maintained a watchful eye on the dangers presented by misinformation and “false facts,” viewing these ends as still relevant to the larger inquiry of press freedom (Jefferson Reference Jefferson1907b, 489). For both Madison and Jefferson, the long-term salience of truth remained paramount.
Arguments surrounding press freedom were thus bound up with beliefs about what ends were ultimately served. Both Madison’s and Jefferson’s arguments were rooted in assessments (and assumptions) regarding the polity’s needs in that historical moment. For his part, Madison’s capacious understanding of the role of the press hinged on two premises. One involved the ease with which the press could spread across the country and operate unadulterated by other entrenched interests. What would happen, in contrast, if the press consolidated under monopolistic ownership? Would the government then have a duty to intervene to guarantee the proliferation of presses nationwide? A second assumption involved the belief that truth would triumph over falsity, deception, and self-interest or, assuming the absence of those obscurant factors, that the truth could be accurately distilled to explain complex issues. Clear and straightforward information regarding specialized topics would be needed to inform public opinion and a modern democratic citizenry, as would become even more salient in later periods of history. Different economic and technological realities would unveil both new limitations and possibilities for this right.
Twentieth-Century Debates
Debates over the contours of press freedom would continue and shift with the economic and technological transformations of the twentieth century. The press became a newspaper industry, its interests intertwined with a business elite controlling the flow of information. Rather than a marketplace of ideas, those newspapers with larger circulation and advertising revenues consolidated into monopolies. A monopolistic press, moreover, meant a decline in the diversity of the newspaper market and in the availability of political information. In addition, newspapers were prone to the standardization of opinions to guarantee a greater market share—it made little business sense to alienate half or more of your readers (Lebovic Reference Lebovic2016, 20). Even information sourcing became standardized and homogeneous by relying on the reporting of the Associated Press. This tendency toward monopolistic practices presented a new conflict between the economic interests of the press industry and the ends that figures like Madison and Jefferson envisioned the press as serving in the polity, including providing accurate political information and informing public opinion. Under this new set of circumstances, the boundaries of press freedom again came under scrutiny amid a confluence of ends.
As in the debate over the Sedition Act, political observers recognized the role that a vibrant free press might play in republican government. The press provided the medium through which information circulated in society. Citizens needed access to an expansive and diverse press and required assurances of the veracity of information to make proper decisions. The question became how to conceive of press freedom in such a way that best served these ends in that particular moment. Madison and Jefferson may have identified government censorship and propaganda as threats to self-government in the polity and so articulated a conception of press freedom that emphasized the protection of political expression against government control. Decades later, Walter Lippmann (Reference Lippmann1920; Reference Lippmann1925) and John Dewey (Reference Dewey1954) identified unregulated private enterprises as the greater threat, insofar as news companies were manufacturing consent and thereby undermining government by consent (Lebovic Reference Lebovic2016, 26).Footnote 32 The ends the press might serve were increasingly impeded by the industry’s monopolistic tendencies and alignment with business elites. On this basis, they concluded that “protecting freedom of opinion was of less importance than protecting the flow of information upon which opinions were based” (26). Lippmann and Dewey thus understood the challenges of the moment as shaping the form of the right itself.
A further challenge to self-government derived from the sheer complexity of modern democratic governance in the twentieth century. Lippmann thought that contemporaneous social issues were beyond the grasp of most citizens and accessible only to specialists. This new sociopolitical environment posed a challenge to the goal of self-government, because the private citizen was tasked with realizing a basically unattainable ideal as the sovereign and omnicompetent citizen (Lippmann Reference Lippmann1925, 21). Public opinion came to be shaped by special interest groups as a result, which conducted “a continual electioneering campaign upon the unformed, exploitable mass of public opinion” (Lippmann Reference Lippmann1920, 28). Congress was sometimes moved by the appeal of such groups, rather than by the demands of citizens.
With these various sources of private power increasing, Lippmann (Reference Lippmann1920, 71) concluded that truth could only prevail over falsehood if individual citizens knew the facts: “If they are not known, false ideas are just as effective as true ones, if not a little more effective.”Footnote 33 A marketplace of ideas was thus insufficient to achieving the same end of an informed citizenry articulated decades earlier. Lippmann thought it was impossible to meaningfully protect democratic public opinion by “imitating the early champions of liberty” (20).Footnote 34 Like Madison, he saw the importance of well-informed public opinion to democratic self-rule. However, Madison could not have foreseen the consolidation of newspapers across the country under large corporations nor the complexity of modern governance that would amplify special interest groups in politics. Likewise, in Lippmann’s telling, the increasing judicial protection of classical formulations of such rights as the freedoms of speech and press ultimately failed to guarantee a free and democratic public opinion (Lebovic Reference Lebovic2016, 32). These rights would need to take different form, Lippmann concluded, which encompassed the intervention necessary to protect diverse sources of opinion and information (27), ultimately in service to self-government.
John Dewey shared these concerns, arguing that modernity had “created vast, distended, and complicated chains of interconnection that outstripped political ideas and practices that were anachronistic holdovers from an earlier era of small-town democracy” (Lebovic Reference Lebovic2016, 31). Corruption and elite business interests, as well as the distorting influence of advertising and propaganda, threatened the formation of public opinion. Moreover, he asserted that citizens could not be expected to master the specialized and technical information underlying the functioning of the modern state. In Dewey’s understanding, however, the expectation that a citizen could have ever been omnicompetent was a relic of a misguided belief in individual autonomy that downplayed the importance of community and associations. Instead, knowledge was social, a function of association and communication (Dewey Reference Dewey1954, 158). For him, the public was like a social organism that could not think critically about complex subjects but could choose between the assessments of specialists if all the information was clear and readily available. He believed that the open results of free inquiry and transparency would allow for a greater transmission of knowledge, thereby informing public opinion on all matters needed for self-government (Lebovic Reference Lebovic2016, 32). Dewey (Reference Dewey1954, 167) maintained, “Whatever obstructs and restricts publicity, limits and distorts public opinion and checks and distorts thinking on social affairs. Without freedom of expression, not even methods of social inquiry can be developed.”
Although he did not provide practical proposals, Dewey intimated the need for government action to ensure this free flow of information and resulting public knowledge. Unlike Lippmann who believed in a permanent need for technocratic experts, Dewey remained optimistic that education and access to information would gradually prepare people for greater participation in self-governance. Ultimately, Dewey put his trust in government to foster this public enlightenment, whereas Lippmann relied on both government and private actors with expertise to provide accurate and reliable information for the public.
These ideas informed policy discussions about the vital functions of the press. While monied interests and the strength of advertising led many to accuse the press of serving undemocratic interests in the 1930s, a proactive New Deal administration recalled the old criticisms of excessive government interference in controlling public opinion. Rather than use prohibitions or censorship, the administration contributed to shaping public opinion by circulating information to promote its policies (Lebovic Reference Lebovic2016, 56). However, these initiatives were still met with accusations of spreading government propaganda. The New Deal reformers also sought to regulate newspaper economics. These regulations, they argued, were appropriate for the press not only because they were an industry but also because state action might be necessary to preserve a diverse and vibrant press (Lebovic Reference Lebovic2016, 65). Advertising was viewed as irrationally distorting the market, sapping consumer power, and misleading the public (72). Franklin D. Roosevelt even argued for a “freedom of the news,” seeking an active role for the state in ensuring access to information from monopolistic media ownership, as opposed to a “freedom of the press,” which involved a classic liberal approach of eliminating government censorship (1). In response, newspaper publishers made rights-centric arguments for libertarian formulations of press freedom to avert the government’s proposed regulation: they argued that economic concentration was the necessary cost of a press free from state intervention (72).
Similar arguments anchored by rights-centrism continue to be deployed today, including by big tech and social media companies eager to avoid regulation.Footnote 35 At the same time, policy makers and concerned citizens seem conscious of the role of media, old and new, in the functioning of the polity. Thus, ends-centric arguments also appear in contemporary debates, as we discuss in the next section.
Ends-Centrism in New Media
The previous section demonstrated how various political actors and commentators debated press freedom in a way that acknowledged the relationship of this right to other interrelated ends, such as securing an outlet for political expression and providing access to sources of knowledge and facts for an informed citizenry. The point of reconstructing these historical discussions is to show how interlocutors deliberated various ends connected to and competing with rights in their respective moments. These histories further demonstrate how the ends-centric mode tends toward an openness to reassessing rights and ends across time and issues.
These historical debates and the ends they discuss resonate with the current digital era in many ways. Old media is as close to a predecessor as we might find for new media. Far from predefining the path forward in contemporary times and circumstances, however, the debates over press freedom recounted in the previous section underscore the need for periodic reassessment of rights, such as free speech and press freedom, given social, economic, technological, and other transformations. Although some of the same factors identified by previous thinkers may persist in the realm of new media, they likely occur in altered form and alongside new considerations. Thus, ends-centric discussions of speech and competing ends in the contemporary digital landscape hinge on the particulars of the issue at hand in this political moment. This section presents preliminary applications of an ends-centric approach in digital politics, animated by the understanding that rights may need to be reassessed in the light of full deliberation of pertinent ends.
A wide range of political considerations figure into debates over new media that did not necessarily characterize prior debates over old media. For one thing, many entities maintain interests in the outcome of these debates—from government, citizens, and corporations to the press, organizations, noncitizens, and foreign governments. The actions taken by any one of these parties often bear on the interests of others in complex ways. For instance, even though US lawmakers have been stymied in many of their regulatory efforts, active foreign powers like the European Union have managed to pass legislation regulating digital contexts, thus, stamping their standards on online and social media practices more broadly (Bradford Reference Bradford2020).Footnote 36 Intense political polarization does not make deliberation any easier in the United States, with parties viewing each other in terms of friends and enemies (Greene Reference Greene2021, xvii) as they compete to set the rules of engagement in new media. Absolutist positions on free speech rights that persist in some of the discourse obscure the recognition of other ends. The result is that even natural occasions for bipartisanism, such as pursuing child safety online, have been threatened by rights-centric invocations of speech.
Beyond these larger political forces, additional factors arise from characteristics particular to new media. Digital spaces integrate not only traditional media outlets but also user-generated content from within and outside the country’s borders. Conglomerate press industries have given way to big tech. Although both achieved monopolistic control in their respective heydays, the strategies for ensuring high profits have changed. Rather than homogenize opinions, some big tech companies have kept blinders on users by tailoring algorithms to their tastes and creating ready-made echo chambers. Directing users to familiar content may provide steady revenue streams, but it prevents the free flow of diverse views. Even specific features of platform design have been shown to influence the behavior of users and, by extension, the health of the polity (Schirch Reference Schirch2023). Insofar as both these platforms and their users claim rights of their own, questions similar to those examined in the previous section about the extent and contours of free speech or a free press recur in this new context. However, although those historical debates focused on examining the interrelated ends of securing political expression and providing access to information, the particulars of this moment and of digital spaces introduce other objectives as well, including curbing hate speech, exposing false information, and diminishing the malign influence of foreign actors (Bond Reference Bond2022; Department of Homeland Security 2022). The ability of misinformation and disinformation to spread so quickly and even “shapeshift” in digital fora renders this threat uniquely destructive (Hook and Verdeja Reference Hook and Verdeja2022).
Amid the competing ends in play, a techno-libertarian streak persists, at least rhetorically, in figures like Elon Musk, a self-proclaimed free speech absolutist (Martin Reference Martin2022; see also Thai Reference Thai2018). Techno-libertarian arguments, in favor of wide latitude for online speech and minimal regulation, arguably echo similar rights absolutist discourse in other corners of American politics, as discussed earlier (Glendon Reference Glendon1993; Greene Reference Greene2021). This political discourse dovetails with a juristic understanding, prioritizing and absolutizing rights in a way that crowds out space necessary for deliberating other ends (Finn Reference Finn2014). Techno-libertarian arguments do not necessarily invoke John Stuart Mill by name but adapt the same kind of Mill-inspired arguments so influential in American politics and law.Footnote 37
Specific debates, such as related to child safety online, bring into sharp relief the difficulties of securing other ends in a generally rights-centric political environment. In particular, the health of children and adolescents is an end that has come to the forefront of public concern. Vivek Murthy, the US Surgeon General, released an advisory on social media’s effects on youth mental health and how it exacerbates anxiety and depression. Murthy even recommended placing a warning label on social media platforms, similar to those on tobacco products, to better inform the public of the risks. Despite political polarization, these and other serious concerns led 91 senators to pass bipartisan legislation to promote safety and privacy requirements for children and teens online (Miller Reference Miller2024). The Kids Online Safety Act (KOSA) required social media platforms to follow a “duty of care” to prevent harm to minors.Footnote 38 Tech firms would need to mitigate or prevent cyber “bullying and violence, the promotion of suicide, eating disorders, substance abuse, sexual exploitation and advertisements for illegal products such as narcotics, tobacco or alcohol.” In addition, the platforms would need to provide options for minors to “protect their information, disable addictive product features, and opt out of personalized algorithmic recommendations” (Ortutay Reference Ortutay2024).
Before being reintroduced in May 2025, the bill met growing opposition from both the left and the right, each side articulating its objections in rights-centric terms. Opponents to this proposed legislation fear curtailing rights to free speech, with the ACLU noting that marginalized LGBTQ communities would not have access to important conversations and online communities. Patriot Voices, a conservative group founded by former Republican senator Rick Santorum, views the bill as threatening to undermine the online privacy of children, as well as institutionalizing federal censorship standards related to medical information (Kang Reference Kang2024). Such rights-centric objections thus emerge from diverse corners of the polity and touch on the myriad subjects on which social media may bear. In a similar vein, Kang (Reference Kang2024) explains, “Liberals worry about censorship of transgender care, while conservatives are concerned about the same with anti-abortion efforts.”
For their part, big tech and social media companies are divided on the issue. Microsoft, X, and Snapchat support the measure, whereas TikTok and Meta call it unconstitutional (Johnston Reference Johnston2024). Meta and Alphabet, Google’s parent company, have both engaged in a lobbying campaign to dilute the “duty of care” provisions, with their lobbyists encouraging skepticism of the act as a potential vehicle for government censorship of both liberal and conservative causes (Wells, Peterson, and Andrews Reference Wells, Peterson and Andrews2024). These companies have sought to address child safety recently but primarily on their own terms, without government regulation.Footnote 39 Much like the press industry in the early twentieth century, tech and social media companies extol free speech rights to avoid increased regulatory scrutiny that would lower their profit margins. In short, rights-centric arguments are continually invoked to stall legislation on a matter of public health by stoking the fears of culture-war censorship of both parties.
Although the Supreme Court has yet to rule definitively on matters related to social media, its judgments seem to conceptualize social media companies as private actors with constitutional rights but not necessarily corresponding duties (Bambrick Reference Bambrick2025; Koltay Reference Koltay2019, chap. 2).Footnote 40 This may foreshadow a continuation of rights-centric understandings, at least for now. However, most of the Court’s judgments on social media to date have been relatively circumscribed, perhaps signaling some appreciation for the fact that other kinds of arguments on this issue may be made, and made better, by other actors.Footnote 41 Indeed, both political parties have shown some motivation to secure other ends alongside free speech rights, even despite extreme political polarization. Some scholars perceive an emerging consensus around curbing hate speech online, for example (Solomon et al. Reference Solomon, Matthew, Hemmen and Druckman2024). Likewise, members from both major parties have voiced concern surrounding the Chinese-owned platform TikTok. CongressFootnote 42 and the Supreme CourtFootnote 43 have underscored how TikTok makes available broad swaths of information to foreign actors, thus implicating competing ends related to national security. Nonetheless, large sectors of the public and even Donald Trump reiterate rights-centric positions, arguing that Congress’s “TikTok ban” entails inroads on freedom of expression not to be tolerated even amid national security risks.
Ultimately, a survey of global politics reveals myriad possibilities for deliberating and legislating on speech and competing ends in digital spaces (DeGregorio Reference DeGregorio2022; Haupt Reference Haupt2025; Koltay Reference Koltay2019; Tourkochoriti Reference Tourkochoriti2023). Efforts to reform Section 230 of the Communication Decency Act have occupied many lawmakers in the United States at both the state (most notably in Florida and Texas) and national levels.Footnote 44 In Europe, the supranational Digital Services Act has capped several earlier national initiatives, such as Germany’s NetzDG.Footnote 45 Of course, US and EU lawmakers do not face identical challenges on the subject of social media, clearly evinced by the fact that European law does not have an equivalent of the US’s Section 230. Beyond these different political-legal realities (Koltay Reference Koltay2019, chap. 2), divergent conceptions of rights on foundational and discursive levels are manifested in their different attempts to regulate social media. Absolutist understandings of speech associated with the United States are often premised on the suspicion of state power. Nevertheless, what Tourkochoriti (Reference Tourkochoriti2021) identifies as an alternative French understanding depends on the state to realize the protection of speech and other rights.Footnote 46
In sum, an array of conceptions of rights, and specifically speech rights, remain possible in this field—some may be more susceptible to neglecting competing ends and others to different failings. Given American political culture, the more likely error in the United States remains the former, hence, the need for mitigating effects of something like ends-centric deliberation over rights. Debates over social media offer policy makers a distinct opportunity to instead deliberate in an ends-centric mode. The foregoing discussion shows a mixed record thus far, with actors deploying both rights-centric and ends-centric arguments in contemporary debates; these debates would be well served if constitutional actors recognized ends-centric arguments as equally valid contributions to debates over rights. Ultimately, they may well choose to privilege rights and even prior formulations of speech in this novel digital space. However, an ends-centric approach would ensure that this is actually recognized as a choice to be made amid the confluence of other ends implicated in new media.
Conclusion
Deliberations over new media are occurring in diverse constitutional contexts, including some, such as the United States, where freedom of speech tends to hold pride of place. Nevertheless, there is good reason to approach these rights anew, bearing in mind that certain ends and exigencies are not best articulated in terms of rights (see also White Reference White1978, 249; Wood Reference Wood1998). The questions that social media raises are apt for demonstrating this larger argument, insofar as these platforms repeatedly prove their ability to influence our political life. For one thing, social media’s algorithms curate and shape debate in profound ways, so that only select positions may be heard by a given user as opposed to a multiplicity of views (or ends, as the case may be). In this respect, one might say that social media exemplifies the larger concern motivating this article—that rights-centric political discourse does not by itself accommodate a full and complete debate. The fuller consideration of ends, in social media and more generally, requires a paradigm shift from dominant rights-centric conceptions to make space for other modes of argument across different institutions in dialogue.
Acknowledgments
We wish to thank Evelyn Behling, Paolo Carozza, Kristen Drahos, Daniel Engster, John Luke Hoonhout, Vincent Phillip Muñoz, Samuel Perry, John Petrakis, Jeffrey Tulis, Elliott Visconsi, Josephine Wolff, Michael Zuckert, the participants in the Notre Dame Kellogg Institute’s Work-in-Progress Seminar Series, and the selection committee for the MPSA’s 2025 Best Paper by an Emerging Scholar Award.
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