David McGowan (University of San Diego School of Law) has posted “The Internet and the Limping Truth” on SSRN. Here is the abstract:
Constitutional doctrine protects false speech and even lies in certain circumstances. The doctrine also endorses non-literal interpretation of speech that can cause statements implying factual assertions to be treated as non-factual, non-actionable opinion. These doctrines limit the degree to which laws may counteract falsity. Historically publishers exercised discretion, through ex ante review, that limited the dissemination of false statements, including those that would have been protected speech had they been published.
Political dissatisfaction with the exercise of such discretion has led to calls to treat social media outlets either as state actors or common carriers. Neither option is desirable. Social media outlets do not satisfy the legal criteria for state action, and misguided claims that Section 230 gives them a subsidy provides no logical basis for treating them as state actors. Nor is common carrier treatment warranted. If the relevant market is publicly available expression, as critics seem to assert, then even the largest outlets have no plausible claim to market power. Normatively, to treat social media outlets as either state actors or common carriers would subject them to falsity-protecting constitutional rules and thus lead to a net increase in harmful conduct–lies, among other things. Public discourse would be better served by allowing media outlets to continue to refine their content moderation practices, as private speech outlets historically have done.