Regulating Opinion Power

Infrastructures that underlie public debate have a significant role in public opinion formation and have long been regulated in multiple ways. Limiting the domination of opinion power by particular interests has been one of the stated aims of such regulation. But the approaches have also depended on the often-unstated presumption of a journalistic-editorial role being highly influential in the formation of public speech and opinion. This chapter examines how communication infrastructures have changed with the development of major platforms and resulting changes in journalism’s role within public debate. These changes raise new regulatory challenges if opinion power is to be limited, and they make the positive dimensions of freedom of expression all the more valuable for understanding what would now be required for communicatively legitimate forms of democracy. The chapter examines aspects of the Digital Services Act and the European Media Freedom Act in light of freedom of expression’s positive dimensions to consider how European law and practice might promote a pluralism of public speech that is curated in the audience’s interests.