Platforms: The First Amendment Misfits

This Essay explains why previous First Amendment precedents that allowed government to require a private entity to host the speech of others have limited applicability to online platforms like Twitter and Facebook. Moreover, the backdrop of an open internet makes platforms sufficiently vulnerable to competition and responsive to listener preferences that the dominance of some firms like Facebook and Google is not really a chokepoint: aggressive changes to content curation will lead to user dissatisfaction and defection, whether those changes are made by the government or the companies themselves. As a result, there are no close analogies in First Amendment precedent for internet platforms. We identify the similarities between social media platforms and more traditional venues for speech (like mail, malls, and television) but ultimately conclude there are critical differences that break the analogies. We then 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. Next, we 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. Finally, we argue that online platforms are their own free speech creature that deserve strong protection from government intervention in hosting and curation choices. However, they may be good targets for transparency requirements.

Automated summary

This Essay explains why previous First Amendment precedents that allowed government to require a private entity to host the speech of others have limited applicability to online platforms like Twitter and Facebook. It argues that the competitive nature of the open internet and user preferences make these platforms responsive to changes in content curation, whether imposed by the government or chosen by the companies themselves. The Essay also compares social media platforms to traditional venues for speech, identifies critical differences, and concludes that online platforms should be considered speech participants. It further argues that the First Amendment protections afforded to platforms should not be significantly altered based on public perception of them as public squares, but transparency requirements may be necessary.