The Constitutionality of Mandating Editorial Transparency

Abstract

Federal and state regulators around the country have made it a high priority to “fix” user-generated content (UGC) on the Internet. Many regulators would simply prefer to tell Internet services what UGC they must, can, or cannot publish. However, that option isn’t constitutional; plus, there’s a deep partisan divide over what content should be published online.

To bypass these obstacles, requiring Internet services to provide more “transparency” has emerged as an attractive plan B for regulators. For example, in 2021, Florida and Texas imposed wide-ranging disclosure obligations on “social media platforms.” Mandatory transparency laws are generally popular, and they are widely viewed as less Constitutionally problematic than outright censorship. After all, mandatory disclosure laws are prevalent in our society, and they often survive constitutional scrutiny.

This Article explores the underappreciated Constitutional problems that arise when regulators compel Internet services to disclose information about their editorial operations and decisions (what the Article calls “mandatory editorial transparency”). In particular, this Article highlights the inevitable problems caused by regulators’ attempts to confirm the accuracy of Internet services’ disclosures. The prospect of such enforcements will motivate Internet services to change their decisions to please regulators—thus having the same effect on speech as more direct, and obviously unconstitutional, speech regulations. This makes mandatory editorial transparency regulations another policy dead-end in regulators’ quest to control online speech.

Keywords: Big Tech, social media, Internet, transparency, disclosures, platform, governance, censorship, free speech, publisher, First Amendment

JEL Classification: D82, K2, K4, K42, L15, L86, L96, O38