Balkinization: Moody v. NetChoice - The Supreme Court Meets the Free Speech Triangle

Moody v. NetChoice - The Supreme Court Meets the Free Speech Triangle

I've posted my latest essay, Moody v. NetChoice - The Supreme Court Meets the Free Speech Triangle, on SSRN. Here is the abstract.

Moody v. NetChoice is the Supreme Court's first attempt at applying the First Amendment to social media content regulation. Private infrastructure owners can act both as speakers and as the governors of other people's speech. This requires a shift from the traditional dyadic model of speech regulation--government versus citizen-- to a pluralist or triangular model in which both states and owners of private infrastructure govern end user speech.

Traditional First Amendment doctrine has problems dealing with this shift. The free speech triangle generates perpetual conflicts between the free speech interests of infrastructure companies and end users. Because First Amendment doctrine assumes that only governments regulate (and censor) speech, it has difficulty dealing with these conflicts, and it tends to conflate speech rights with property rights. As a result, to the extent that existing doctrine recognizes First Amendment rights, they will usually be the rights of large digital companies and not of end users.

Moody exemplifies these tendencies, granting social media companies a First Amendment right to govern their end users' speech. The free speech interests of end users play little to no role in the Court's analysis.

The best approach is to read Moody narrowly to apply to applications resembling social media feeds, but not to other kinds of digital platforms or to other services lower in the "tech stack." This would allow governments to impose non-discrimination or common-carriage rules on other parts of the digital infrastructure, especially when their primary job is to ensure that digital traffic flows smoothly and efficiently.

Moody leaves untouched content-neutral structural regulations to ensure fair competition. For example, governments could require social media platforms to permit end users to subscribe to middleware services that would offer alternative content moderation and recommendation systems. Governments could also require interoperability between social media platforms. These kinds of reforms would allow end users to benefit from the network effects of global platforms but also offer them greater choice in how their speech is governed and regulated. They would lower barriers to entry for new companies that could provide competing content moderation and recommendation services. This would help counter the dominance of a tiny number of powerful global companies that decide who speaks online.

The Court assumed without deciding that states might impose disclosure and transparency rules on social media companies under compelled commercial speech doctrine. This is in tension with its holding that content moderation and recommendation systems involve editorial judgments like those in newspapers. Newspapers are normally free to make editorial judgments without having to justify themselves to the state. In fact, commercial speech doctrine is an imperfect proxy for the real issues of procedural fairness. What is really at stake is not whether end users are well informed; it is whether they are being governed arbitrarily.

Finally, Moody begins thinking about whether content produced by algorithms and artificial intelligence is protected by the First Amendment. The Court's brief discussion shows that it understands the problem is important but that it currently lacks the tools to resolve it in a satisfactory way.

Posted 1:05 PM by JB [link]