Silicon Valley's Speech: Technology Giants and the Deregulatory First Amendment

1 Journal of Free Speech Law 337 (2021)

40 Pages Posted: 23 Sep 2021

Date Written: August 25, 2021


The technology giants that dominate Silicon Valley are facing unprecedented calls for regulation across a wide range of policy areas, ranging from content moderation and surveillance to competition, privacy, and consumer protection. But, as this Article explains, the First Amendment may stymie such efforts in ways that go far beyond the much-discussed “First Amendment Lochnerism.” Because technology companies’ core business activity is the facilitation of communication through computer code, they are particularly well suited to wield a deregulatory First Amendment.

To avoid the First Amendment becoming a new, digital Lochner, this Article argues that First Amendment doctrine must sharply distinguish between arguments made on behalf of the First Amendment rights of users, which should be embraced, and those made on behalf of the companies themselves, which should be credited only if they advance the First Amendment interests of society, not merely those of the companies themselves. This Article concludes by using the recently enacted Florida law limiting social-media content moderation as a case study for how courts and other legal actors can determine what degree of First Amendment protections is appropriate for Silicon Valley’s speech.

Keywords: First Amendment, free speech, Silicon Valley, content moderation, digital Lochner

Suggested Citation

Rozenshtein, Alan Z., Silicon Valley's Speech: Technology Giants and the Deregulatory First Amendment (August 25, 2021). 1 Journal of Free Speech Law 337 (2021), Available at SSRN:

Alan Z. Rozenshtein (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics