Exporting the First Amendment through Trade: the Global 'Constitutional Moment' for Online Platform Liability

56 Pages Posted: 21 Mar 2022 Last revised: 6 Oct 2022

Date Written: 2022


The U.S. in the recent United States-Mexico-Canada Agreement and U.S.-Japan Digital Trade Agreement adopts a new clause which mirrors Section 230 of the Communications Decency Act of 1996, shielding online intermediaries from third-party contents liability. For policymakers, the seemingly innocuous “Interactive Computer Services” title creates the fundamental challenge in balancing free speech against competing interests in the digital age. This Article argues against globally normalizing this clause through its diffusion in trade deals. Internally, as the Biden Administration has offered a clean slate to discuss reforms to the controversial regime, it is unwise for U.S. trade negotiators to export the same clause in future negotiations. Externally, it is problematic for other partners to accept this clause, born from American values deeply rooted in the First Amendment. Each country is entitled to achieve the fundamental right of free speech through their own economic, social, and political pathways, towards an optimal balance—and rebalance—against other interests. The clause should be dropped from future trade negotiations while policymakers worldwide grapple with the challenges posed by online platforms and reconfigure their regulatory frameworks in the digital era.

Keywords: Communications Decency Act Section 230, content regulations; Digital Services Act; platform governance; defamation; fake news; misinformation

JEL Classification: K00, K10, K13, K20, K22, K30, K33, K40, K23, K41

Suggested Citation

Liu, Han-Wei, Exporting the First Amendment through Trade: the Global 'Constitutional Moment' for Online Platform Liability (2022). Georgetown Journal of International Law, Vol. 53, No. 1, 2022, Available at SSRN: https://ssrn.com/abstract=4059650 or http://dx.doi.org/10.2139/ssrn.4059650

Han-Wei Liu (Contact Author)

Monash University ( email )

900 Dandenong Road
Caulfield, Victoria 3145

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