Platforms: The First Amendment Misfits

20 Pages Posted: 25 Oct 2021 Last revised: 28 Oct 2021

See all articles by Jane R. Bambauer

Jane R. Bambauer

University of Florida Levin College of Law; University of Florida - College of Journalism & Communication

Vincent Yesue

University of Arizona, James E. Rogers College of Law

James Rollins

University of Arizona, James E. Rogers College of Law

Date Written: October 24, 2021

Abstract

In this essay (coauthored with James Rollins and Vincent Yesue), we explain the practical and doctrinal limits to analogizing social media content moderation practices to other contexts with more established First Amendment precedent. We identify the similarities between social media platforms and more traditional venues for speech (like mail, malls, and television) as well as their critical differences. Next, we compare the role of social media platforms to basic Internet service providers to better understand how the line between speech participants and mere conduits should be drawn in an online context. We find that First Amendment caselaw and the reasoning that flows through it would categorize platforms like Twitter and Facebook as speech participants. We also consider whether public perception of platforms standing in the role of a “public square” should significantly alter the First Amendment protections afforded to platforms, arguing that it should not (for similar reasons as the critical differences between Facebook and a shopping mall—namely, that online forums cannot lock in participants to the exclusion of other venues.) Finally, we argue that online platforms are their own free speech creature that deserve strong protection from government intervention in hosting and curation choices, but they may be good targets for transparency requirements.

Keywords: Social media, online platforms, First Amendment, internet service providers, cyberspace, speech

Suggested Citation

Yakowitz Bambauer, Jane R. and Yesue, Vincent and Rollins, James, Platforms: The First Amendment Misfits (October 24, 2021). Indiana Law Journal, Forthcoming, Arizona Legal Studies Discussion Paper No. 21-24, Available at SSRN: https://ssrn.com/abstract=3948967 or http://dx.doi.org/10.2139/ssrn.3948967

Jane R. Yakowitz Bambauer (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

University of Florida - College of Journalism & Communication ( email )

United States

Vincent Yesue

University of Arizona, James E. Rogers College of Law ( email )

Tucson, AZ
United States

James Rollins

University of Arizona, James E. Rogers College of Law ( email )

Tucson, AZ
United States

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