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Platforms: The First Amendment Misfits

Focus Areas: Free speech
Discourse Type: Scholarship

Forthcoming in the Indiana Law Journal

In this essay, we explain the practical and doctrinal limits to analogizing social media content moderation practices to other contexts with more established First Amendment precedent. We identify the similarities between social media platforms and more traditional venues for speech (like mail, malls, and television) as well as their critical differences. Next, we compare the role of social media platforms to basic Internet service providers to better understand how the line between speech participants and mere conduits should be drawn in an online context. We find that First Amendment caselaw and the reasoning that flows through it would categorize platforms like Twitter and Facebook as speech participants. We also consider whether public perception of platforms standing in the role of a “public square” should significantly alter the First Amendment protections afforded to platforms, arguing that it should not (for similar reasons as the critical differences between Facebook and a shopping mall—namely, that online forums cannot lock in participants to the exclusion of other venues.) Finally, we argue that online platforms are their own free speech creature that deserve strong protection from government intervention in hosting and curation choices, but they may be good targets for transparency requirements.

Author(s): Jane Bambauer, Vincent Yesue (TechLaw Fellow ‘22), and James Rollins (TechLaw Fellow ‘22)

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