Free Speech and Private Power: Uncertainty About Disclosure Rules

[I am serializing my short Harvard Law Review Forum essay titled "Free Speech and Private Power", responding to the Harvard Law Review's publication of Evelyn Douek & Genevieve Lakier's excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter, mostly asking what the Court's recent cases mean going forward, rather than trying to critique them.]

Sometimes, private power can be constrained by transparency requirements rather than outright hosting mandates. The Moody Court suggested that such requirements, as applied to social media moderation policies and decisions, must be judged under Zauderer v. Office of Disciplinary Counsel, a case that dealt with compelled disclosures in lawyer advertising. In this regard, the Court echoed the Fifth Circuit’s decision in NetChoice, LLC v. Paxton, which said that the “control[ ling]” Zauderer precedent “established that States may require commercial enterprises to disclose ‘purely factual and uncontroversial information’ about their services.”

Yet the quoted material in Zauderer comes from a sentence that relies on the disclosure being within “commercial advertising”—and the Moody disclosure rules weren’t limited to compelling disclosures in social media platform ads, or even more broadly compelling disclosures as part of commercial transactions that the platforms entered into with their users. They would apply even in the typical relationship between social media platforms and users, where no money changes hands.

To be sure, the relationship does involve services by a profit-seeking business (albeit one that chiefly profits through advertising rather than direct payment). And indeed, in National Institute of Family and Life Advocates v. Becerra, the dissenters would have applied Zauderer to compelled speech by entirely noncommercial entities—the clinics in that case were generally nonprofits that provided free services to their clients, for ideological reasons rather than for profitmaking. It thus appears that many Justices are open to applying Zauderer to at least some mandated disclosures in relationships between service providers and clients, including disclosures (1) in speech that does not “propose a commercial transaction” (the commercial speech definition used in Zauderer), (2) in relationships in which the client does not pay, and (3) in relationships in which the speaker is not commercially motivated.

Perhaps this is sound. Perhaps there should be more room for compelled disclosure in such relationships, so long as the compulsion doesn’t change the speaker’s other speech (as it would have in, say, Hurley or Miami Herald Publishing Co. v. Tornillo or Riley v. National Federation of the Blind of North Carolina, Inc.). But it does appear to be a shift from an earlier understanding of Zauderer, and it seems likely that many lower courts may not notice the shift—consider, for instance, the recent NetChoice, LLC v. Bonta, which held that Zauderer didn’t apply to certain platform reporting requirements because they “regulate [] far more than mere commercial speech”—or perhaps notice it but push back against it.

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