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
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