Download This PaperTailoring Election Regulation: The Platform Is the Frame
4 Geo. Tech. L. Rev. (2020 Forthcoming)
17 Pages Posted: 23 Apr 2020
Date Written: April 10, 2020
Abstract
According to conventional wisdom, legislative efforts to limit platform-based electoral manipulation—including especially laws that go beyond simply mandating additional disclosure about advertising expenditures—are most likely doomed to swift judicial invalidation. In this Essay, I bracket questions about baseline First Amendment coverage and focus on the prediction of inevitable fatality following strict scrutiny. Legislation aimed at electoral manipulation rightly confronts serious concerns about censorship and chilling effects, but the ways that both legislators and courts approach such legislation will also be powerfully influenced by framing choices that inform assessment of whether challenged legislation is responsive to claimed harms and appropriately tailored to the interests it assertedly serves. I identify three frames conventionally employed in evaluating the design of speech regulation—the distribution bottleneck, the rational listener, and the intentional facilitator—and explain why each is ill-suited to the platform-based information environment, which presents different incentives and failure modes. In their place, I offer the platform itself as a new frame. I identify the harms and interests that frame brings into focus and offer some preliminary thoughts on the kinds of legislation it might permit.
Keywords: platform, intermediation, First Amendment, election regulation, electioneering, manipulation, autonomy, factionalism, authoritarianism
JEL Classification: K29, K39
Suggested Citation: Suggested Citation
Julie E. Cohen (Contact Author)
Georgetown University Law Center ( email )
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United States
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HOME PAGE: http://www.law.georgetown.edu/faculty/jec/