Hannibal Travis (FIU Law) has posted “The Freedom of Influencing” (77 Miami L. Rev. 388 (2023)) on SSRN. Here is the abstract:

Social media stars and the Federal Trade Commission (“FTC”) Act are clashing. Influencer marketing is a preferred way for entertainers, pundits, and everyday people to monetize their audiences and popularity. Manufacturers, service providers, retailers, and advertising agencies leverage influencers to reach into millions or even billions of consumer devices, capturing minutes or seconds of the market’s fleeting attention. FTC enforcement actions and private lawsuits have targeted influencers for failing to dis￾close the nature of a sponsorship relationship with a manufacturer, marketer, or service provider. Such a failure to disclose payments prominently is very common in Hollywood films and on radio and television, however. The Code of Federal Regulations, FTC notices, and press releases contain exemptions tailored to such legacy media. This Article addresses whether the disparate treatment of social media influencers and certain legacy media formats may amount to a content-based regulation of speech that violates the freedom of speech. Drawing on intellectual property law, consumer law, and securities law precedents, it argues that the more intense focus on disclosures by social media influencers infringes the freedom of influencing. It is irrational and discriminatory to impose greater obligations on influencers who are paid to mention or use products or services than on legacy media formats whose actors or directors mention or use similar products or services.

Sari Mazzurco (Yale ISP; SMU Dedman) has posted “Content Moderation Regulation as Legal Role-Scripting” (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:

Lawmakers and scholars concerned with content moderation regulation typically appeal to “analogies” to justify or undermine different forms of regulation. The logic goes, law should afford individuals due process rights against speech platforms because speech platforms are “like” speech governors as a matter of objective reality. Other common analogies include common carriers, publishers, distributors, shopping malls, and book stores.

Commentators attempt to invoke social roles to understand what the content moderation relationship is, what behaviors are “right” and “wrong” within it, and how law should police behavioral deviations. But they do so without relying on foundational sociology theory that explains what social roles are, what they do, and how they come to be. Without this theoretical foundation, the discourse incompletely portrays the project of content moderation regulation. Content moderation regulations do not simply “take” speech platforms’ role as it currently exists. They will also “make” speech platforms’ role, by expressing that speech platforms should be speech governors, common carriers, publishers, or something else, based on how lawmakers choose to regulate.

This Article is the first to introduce role theory into the content moderation discourse. Content moderation regulations are poised to define the basic contours of what it means to be a “speech platform” because the role remains unsettled. Earlier, the Communications Decency Act failed to articulate coherent roles within the content moderation relationship. But current content moderation regulatory reforms — including the PACT Act in Congress, state platform-common carriage laws, and the Supreme Court’s decision in Gonzalez v. Google — have a renewed opportunity to script social roles for speech platforms and individuals. Foregrounding these reforms’ role scripts directs attention to urgent questions about whether they are likely to produce a desirable content moderation relationship and an online speech ecosystem that meets the public’s needs.

Amy Cyphert (West Virginia University – College of Law) and Jena Martin (same) have posted “‘A Change is Gonna Come:’ Developing a Liability Framework for Social Media Algorithmic Amplification” (U.C. Irvine Law Review, Vol. 13 (2022)) on SSRN. Here is the abstract:

From the moment social media companies like Facebook were created, they have been largely immune to suit for the actions they take with respect to user content. This is thanks to Section 230 of the Communications Decency Act, 47 U.S.C. § 230, which offers broad immunity to sites for content posted by users. But seemingly the only thing a deeply divided legislature can agree on is that Section 230 must be amended, and soon. Once that immunity is altered, either by Congress or the courts, these companies may be liable for the decisions and actions of their algorithmic recommendation systems, artificial intelligence models that sometimes amplify the worst in our society, as Facebook whistleblower Frances Haugen explained to Congress in her testimony.

But what, exactly, will it look like to sue a company for the actions of an algorithm?

Whether through torts like defamation or under certain statutes, such as those aimed at curbing terrorism, the mechanics of bringing such a claim will surely occupy academics and practitioners in the wake of changes to Section 230. To that end, this Article is the first to examine how the issue of algorithmic amplification might be addressed by agency principles of direct and vicarious liability, specifically within the context of holding social media companies accountable. As such, this Article covers the basics of algorithmic recommendation systems, discussing them in layman’s terms and explaining why Section 230 reform may spur claims that have a profound impact on traditional tort law. The Article looks to sex trafficking claims made against social media companies—an area already exempted from Section 230’s shield—as an early model of how courts might address other claims against these companies. It also examines the potential hurdles, such as causation, that will remain even when Section 230 is amended. It concludes by offering certain policy considerations for both lawmakers and jurists.

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Jack M. Balkin (Yale Law School) has posted “Free Speech Versus the First Amendment” (UCLA Law Review, Forthcoming) on SSRN. Here is the abstract:

The digital age has widened the gap between the judge-made doctrines of the First Amendment and the practical exercise of freedom of speech. Today speech is regulated not only by territorial governments but also by the owners of digital infrastructure — for example, broadband and cellular providers, caching services, app stores, search engines, and social media companies. This has made First Amendment law less central and the private governance of speech more central.

When the free speech interests of digital companies and their end-users conflict, the major beneficiaries of First Amendment rights are likely to be the former and not the latter. Digital companies will try to use the First Amendment to avoid government regulation, including regulation designed to protect the free speech and privacy interests of end-users.

In response, internet reformers on both the left and the right will attempt to de-constitutionalize internet regulation: They will offer legal theories designed to transform conflicts over online speech from First Amendment questions into technical, statutory and administrative questions. In the U.S., at least, de-constitutionalization is the most likely strategy for imposing public obligations on privately-owned digital companies. If successful, it will make the First Amendment even less important to online expression.

The speed and scale of digital speech have also transformed how speech is governed. To handle the enormous traffic, social media companies have developed algorithmic and administrative systems that do not view speech in terms of rights. Accompanying these changes in governance is a different way of thinking about speech. In place of the civil liberties model of individual speech rights that developed in the twentieth century, the emerging model views speech in hygienic, epidemiological, environmental, and probabilistic terms.

The rise of algorithmic decisionmaking and data science also affect how people think about free expression. Speech becomes less the circulation of ideas and opinions among autonomous individuals and more a collection of measurable data and network connections that companies and governments use to predict social behavior and nudge end-users. Conceived as a collection of data, speech is no longer special; it gets lumped together with other sources of measurable and analyzable data about human behavior that can be used to make predictions for influence and profit.

Meanwhile, the speed and scale of digital expression, the scarcity of audience attention, and social media’s facilitation of online propaganda and conspiracy theories have placed increasing pressure on the standard justifications for freedom of speech, including the pursuit of truth and the promotion of democracy. The gap between the values that justify freedom of speech and what the First Amendment actually protects grows ever wider.

In response, some scholars have argued that courts should change basic First Amendment doctrines about incitement, defamation, and false speech. But it is far more important to focus on regulating the new forms of informational capitalism that drive private speech governance and have had harmful effects on democracy around the globe.

The digital age has also undermined many professions and institutions for producing and disseminating knowledge. These professions and institutions are crucial to the health and vitality of the public sphere. Changing First Amendment doctrines will do little to fix them. Instead, the task of the next generation is to revive, reestablish and recreate professional and public-regarding institutions for knowledge production and dissemination that are appropriate to the digital age. That task will take many years to accomplish.

Recommended.

Eric Goldman (Santa Clara University – School of Law) has posted “The United States’ Approach to ‘Platform’ Regulation” on SSRN. Here is the abstract:

This paper summarizes the United States’ legal framework governing Internet “platforms” that publish third-party content. It highlights three key features of U.S. law: the constitutional protections for free speech and press, the statutory immunity provided by 47 U.S.C. § 230 (“Section 230”), and the limits on state regulation of the Internet. It also discusses U.S. efforts to impose mandatory transparency obligations on Internet “platforms.”

Florence G’sell (Sciences Po; University of Lorraine) has posted “The Digital Services Act (DSA): A General Assessment” (in Antje von Ungern-Sternberg (ed.), Content Regulation in the European Union – The Digital Services Act (Trier 2023)) on SSRN. Here is the abstract:

Effective since November 16, 2022, the Digital Services Act (DSA) introduces an innovative and pragmatic regulatory approach, utilizing novel and ingenious mechanisms to update and complement the current rules governing online platforms while adapting to their present characteristics. This article presents and comments the main features of the DSA, while highlighting the potential challenges that could arise during its implementation. The first section outlines the five key aspects of the DSA, including the asymmetric nature of the Regulation, which adjusts rules and obligations to suit the size and activities of regulated entities; the preservation of the exemption from liability established by the E-Commerce Directive, along with the inclusion of a new Good Samaritan clause; the creation of new obligations in content moderation to ensure the effective combating of objectionable content and the protection of users’ rights; the establishment of specific obligations to protect users and consumers and respond to crisis situations; and finally, the original provisions concerning the enforcement of the DSA. The second part of the article concentrates on identifying the potential challenges of implementing the DSA, focusing specifically on obstacles that could hinder the text’s effective application, potential difficulties arising from provisions related to managing systemic risks, and the complex adaptation of the DSA to emerging technologies. Ultimately, while the DSA is undoubtedly an innovative, necessary, and commendable initiative, its ability to address the most pressing issues of the contemporary internet will only become clear upon its practical implementation.

Nathan Cortez (SMU – Dedman School of Law) and William M. Sage (Texas A&M University School of Law) have posted “The Disembodied First Amendment” (100 Washington University Law Review 707 (2023)) on SSRN. Here is the abstract:

First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” – dubious precedents, doctrines, assumptions, and theoretical grounds that have elevated corporate and commercial speech rights over the last century. This Article offers several ways to deconstruct these artifices, re-tether the First Amendment to natural speakers and listeners, and thus reclaim the individual, political, and social objectives of the First Amendment.

Andrew Keane Woods (University of Arizona Law) has posted “Public Law, Private Platforms” (107 Minnesota Law Review 124 (2023)) on SSRN. Here is the abstract:

Our law—both our constitutional law and much of our statutory law—has long drawn a fraught distinction between public and private domains. Indeed, debates about the public/private distinction date as far back as liberalism itself. But today’s private digital platforms strain that distinction to a new degree. Platforms have become our public spaces, but because they are privately owned and “merely” coordinate private ordering, they operate without the guardrails of many of our most important laws.

For example, anti-discrimination law once covered nearly all short-term bookings at inns and hotels; today, nearly a quarter of the hospitality market is controlled by Airbnb, where the majority of bookings are in owner-occupied homes that are exempt from anti-discrimination law’s reach. The First Amendment once protected against the gravest threats to free speech; today, scholars question whether it is fit to handle the novel speech problems presented by social media. The Fourth Amendment once prevented the police from gaining warrantless access to our most private information; today, the police simply buy that data on the open market. The list goes on. While criminal law and speech scholars have noticed the state action problem in constitutional law, and civil rights scholars have discussed the private carveouts in anti-discrimination law, there is little scholarship moving beyond these silos to explore how these different regulatory puzzles stem from the same fundamental problem.

Recognizing that the public/private distinction is the core of the platform problem has a number of implications. It helps explain the platforms’ persistent ability to evade meaningful regulation and it suggests a new way forward—a more suitable remedy than using blunt antitrust tools to address our biggest social ills. Specifically, courts and legislators should revive and expand the legal doctrines that recognize the imperfect nature of our law’s distinction between public and private. These private-but-public doctrines—like public accommodations, the public policy doctrine in contract, the public trust doctrine in property, and more—have long recognized the limits to private ordering in the public interest. It is time to update them for the digital age.

F. E. Guerra-Pujol (Pontifical Catholic University of Puerto Rico; University of Central Florida) has posted “Truth Markets” on SSRN. Here is the abstract:

A growing chorus of legal scholars and policy makers have decried the proliferation of false information on the Internet–e.g. fake news, conspiracy theories, and the like–while at the same time downplaying the dangers of Internet censorship, including shadow bans, arbitrary or selective enforcement of content moderation policies, and other forms of Internet speech suppression. This Article proposes a simple alternative to censorship: a truth market.

Nicholas Nugent (University of Virginia School of Law) has posted “The Five Internet Rights” (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

Since the dawn of the commercial internet, content moderation has operated under an implicit social contract that website operators could accept or reject users and content as they saw fit, but users in turn could self-publish their views on their own websites if no one else would have them. However, as online service providers and activists have become ever more innovative and aggressive in their efforts to deplatform controversial speakers, content moderation has progressively moved down into the core infrastructure of the internet, targeting critical resources, such as networks, domain names, and IP addresses, on which all websites depend. These innovations point to a world in which it may soon be possible for private gatekeepers to exclude unpopular users, groups, or viewpoints from the internet altogether, a phenomenon I call viewpoint foreclosure.

For more than three decades, internet scholars have searched, in vain, for a unifying theory of interventionism—a set of principles to guide when the law should intervene in the private moderation of lawful online content and what that intervention should look like. These efforts have failed precisely because they have focused on the wrong gatekeepers, scrutinizing the actions of social media companies, search engines, and other third-party websites—entities that directly publish, block, or link to user-generated content—while ignoring the core resources and providers that make internet speech possible in the first place. This Article is the first to articulate a workable theory of interventionism by focusing on the far more fundamental question of whether users should have any right to express themselves on the now fully privatized internet. By articulating a new theory premised on viewpoint access—the right to express one’s views on the internet itself (rather than on any individual website)—I argue that the law need take account of only five basic non-discrimination rights to protect online expression from private interference—namely, the rights of connectivity, addressability, nameability, routability, and accessibility. Looking to property theory, internet architecture, and economic concepts around market entry barriers, it becomes clear that as long as these five fundamental internet rights are respected, users are never truly prevented from competing in the online marketplace of ideas, no matter the actions of any would-be deplatformer.