Law and Technology: Beyond the Editorial Analogy: The Future of the First Amendment on the Internet

Net Choice recently had mixed results in court cases regarding restrictions on content moderation. In FL, a federal appellate court ruled that the state's new restrictions were unconstitutional, while in TX, another federal appellate court upheld the restrictions. The Supreme Court will soon decide if these laws violate the First Amendment rights of social media platforms. While the Court should strike down the laws, it should also recognize the government's interest in promoting access to private platforms. The laws in TX and FL limit how platforms can moderate user speech, but they are poorly designed and may backfire. For example, the laws encourage platforms to take down more content, potentially leading to censorship of controversial issues. Additionally, the laws may drive users away from platforms or create content-free-for-alls. The Court should rule narrowly, striking down the laws but leaving room for more limited and carefully written laws that pass First Amendment muster.