The First Amendment and the Regulation of Speech Intermediaries
71 Pages Posted: 21 Jun 2022 Last revised: 5 Dec 2022
Date Written: December 2, 2022
Calls to regulate social media platforms abound on both sides of the political spectrum. Some want to prevent platforms from deplatforming users or moderating content, while others want them to deplatform more users and moderate more content. Both types of regulation will draw First Amendment challenges. As Justices Thomas and Alito have observed, applying settled First Amendment doctrine to emerging regulation of social media platforms presents significant analytical challenges.
This Article aims to alleviate at least some of those challenges by isolating the role of the speech intermediary in First Amendment jurisprudence. Speech intermediaries complicate the analysis because they introduce speech interests that may conflict with the traditional speaker and listener interests that First Amendment doctrine evolved to protect. Clarifying the under-examined role of the speech intermediary can help inform the application of existing doctrine in the digital age. The goal of this Article is to articulate a taxonomy of speech intermediary functions that will help courts (1) focus on which intermediary functions are implicated by a given regulation and (2) evaluate how the mix of speaker, listener, and intermediary interests should affect whether that regulation survives a First Amendment challenge.
This Article proceeds as follows. First, it provides a taxonomy of the speech intermediary functions—conduit, curator, commentator, and collaborator—and identifies for each function the potential conflict or alignment between the intermediary’s speech interest and the speech interests of the speakers and listeners the intermediary serves. Next, it maps past First Amendment cases onto the taxonomy and describes how each intermediary’s function influenced the application of First Amendment doctrine. Finally, it illustrates how the taxonomy can help analyze First Amendment challenges to emerging regulation of contemporary speech intermediaries.
Keywords: First Amendment, freedom of speech, freedom of expression, social media, content moderation, censorship
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