[I am serializing my short Harvard Law Review Forum essay titled "Free Speech and Private Power", responding to the Harvard Law Review's publication of Evelyn Douek & Genevieve Lakier's excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter, mostly asking what the Court's recent cases mean going forward, rather than trying to critique them.]
Sometimes, private power can be constrained by transparency requirements rather than outright hosting mandates. The Moody Court suggested that such requirements, as applied to social media moderation policies and decisions, must be judged under Zauderer v. Office of Disciplinary Counsel, a case that dealt with compelled disclosures in lawyer advertising. In this regard, the Court echoed the Fifth Circuit's decision in NetChoice, LLC v. Paxton, which said that the "control[ ling]" Zauderer precedent "established that States may require commercial enterprises to disclose 'purely factual and uncontroversial information' about their services."
Yet the quoted material in Zauderer comes from a sentence that relies on the disclosure being within "commercial advertising"—and the Moody disclosure rules weren't limited to compelling disclosures in social media platform ads, or even more broadly compelling disclosures as part of commercial transactions that the platforms entered into with their users. They would apply even in the typical relationship between social media platforms and users, where no money changes hands.
