New Article: “The Constitutionality of Mandating Editorial Transparency” – Technology & Marketing Law Blog

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New Article:

I’ve posted a draft of my latest article, “The Constitutionality of Mandating Editorial Transparency,” forthcoming in the Hastings Law Journal later this year. As always, I hope you will check it out.

Congress, state legislatures, and federal and state enforcement agencies are endeavoring to compel UGC services to disclose information about their editorial practices. The article highlights two such laws, the Florida and Texas social media censorship laws, but the phenomenon is pervasive. As just one recent example, Congress’ January 6 Insurrection committee has submitted subpoenas to the major Internet services demanding details about their editorial decisions.

The desire for greater transparency from “Big Tech” is so strong that many proponents sidestep or ignore the obvious constitutionality concerns. However, their efforts are qualitatively different from the thousands of existing consumer protection-focused mandatory disclosure laws, many of which have survived constitutional challenges. By demanding that Internet services disclose information about editorial decisions or operations, the transparency requirements intrude into publication processes–which standard disclosure laws don’t do. Further, enforcement of these requirements creates numerous vectors of attack for censorship-minded regulators, and services will distort their editorial decisions to reduce their entanglements with regulators. The Constitution doesn’t permit these consequences.

The paper’s conclusion (that mandatory editorial transparency laws aren’t constitutional) will not be popular in many circles, including some civil society and academic communities I normally ally with. However, if my paper is right, it has important implications for all “platform transparency” efforts. In particular, it’s a red flag for the dozens/hundreds of bills and enforcement efforts that regulators are spending your tax dollars on right now.

I’ve submitted the article to the journal for editing, but I can still make some minor changes, so I welcome your thoughts.

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The 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.