Journal of Free Speech Law: My "The Future of Government Pressure on Social Media Platforms"

The article is here; the Introduction:

Throughout the mid-twentieth century, many commentators sharply criticized the perceived oligarchy of mass communications. “Freedom of the press,” journalist A. J. Liebling famously said in 1960, “is guaranteed only to those who own one.” For a while in the early 2000s, thanks to the “cheap speech” made possible by the internet, everyone seemed to own a printing press capable of producing and distributing thousands (sometimes millions) of copies of one’s electronic leaflets. Many thought that the future of free speech was therefore one with broad freedom for speakers.

But now, we see it was too good to be true—for certain values of the variable “good.” It turns out that, today, we’re just borrowing printing presses: Facebook’s, X’s (formerly Twitter), YouTube’s. Even those of us who have our own blogs rely on hosting services such as WordPress, GoDaddy, and the like. And while most of the time these services are happy to let us use them, some of the time they say no. This platform interest in restricting speech has surged in the last ten years, and it seems likely to grow further.

What to do about this is one of the main free speech questions likely to occupy courts and legislatures in at least the near future. It arises in various contexts. For instance, are state laws that ban viewpoint discrimination by private platforms wise and consistent with the First Amendment, Section 230 of Title 47 of the U.S. Code (which gives internet service providers and platforms certain immunities from state regulation), and the Dormant Commerce Clause (which limits state authority to regulate interstate transactions)? What should we think about calls for greater “responsibility” on the part of platforms and other intermediaries? And, especially important, when may the government encourage or pressure social media platforms and other intermediaries to restrict speech on their property?

We can expect greater and more organized government pressure of this sort. Some of the most important future free speech debates will be about whether courts and legislatures should step in to stop such pressure. The social media revolution has turned social media platforms into tremendously powerful political actors, capable of swaying close elections. But it has also made them relatively susceptible to pressure from foreign and domestic governments, advocacy groups, large commercial entities, and collaborations between these forces (for instance, when advocacy groups encourage both government action and advertiser boycotts).

It’s difficult for the government to control debate in thousands of newspapers or on millions of user sites, whether it tries to exert control through the threat of regulation, through the threat of congressional investigation or condemnation, or just through noncoercive attempts at persuasion. And even were it an easier task, controlling each publisher would yield only limited benefits to the government.

Some publishers may also resist regulation out of conviction—especially because it is their own speech the government is trying to control—or a business interest in continuing to cover what their competitors have stopped covering. Publishers also often have a tradition of adversarial relations with the government, so when the government asks them to remove content (or not publish it in the first place) such requests are viewed skeptically by default.

But social media platforms are more tempting targets than traditional print publishers, and they and their heirs will likely continue to be so. From the mid-2010s until today, social media entities have been persuaded to implement a range of restrictions on supposed “hate speech,” on supposed “misinformation” about medicine or elections, and even for a time on allegations that COVID-19 leaked from a Chinese government lab. Some of that persuasion (or perhaps pressure) has come from the U.S. federal government. The Supreme Court recently heard a case involving such government action, Murthy v. Missouri (2024), but dismissed it on procedural grounds.

Such government action may have substantial costs and benefits. I don’t know with any confidence what, if anything, ought to be done about it. But I want to lay out some observations that I hope might help others to explore the matter.

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