The article, which is directly relevant to the Netchoice cases that the Court will consider this Term, is here; here's the Introduction:
Major U.S. platforms can powerfully influence public discourse by removing, promoting, and otherwise moderating users' online speech. Better information about their content moderation would help policymakers enact better laws. It would also serve Internet users' interests as readers, speakers, and participants in democracy.
A recent wave of "platform transparency laws" around the world now require such disclosures. The EU, for example, adopted transparency laws following extensive consultation with experts, and continues to take public comments on implementation issues. The U.S. approach has instead followed an increasingly familiar and depressing pattern: State lawmakers enact hastily-drafted laws, and platforms try to get those laws struck down as First Amendment violations. The Supreme Court recently agreed to hear cases about two such state laws, from Texas and Florida. Its review will encompass only portions of those states' sweeping transparency mandates: the provisions concerning notice and appeal for individual users affected by content moderation. Its ruling on those questions, however, may effectively determine the constitutionality of the states' other transparency mandates.
Judicial analysis of Texas's and Florida's transparency mandates has, to date, been quite superficial. We should hope for better from the Supreme Court. Precedent does not provide clear answers to important constitutional questions about platform transparency, though. Platforms' and states' legal arguments both rely on flawed analogies: Platforms compare themselves to newspapers, and states compare them to food vendors or hospitals. Both analogies give short shrift to the rights and interests of Internet users.
Advocates and courts in platform transparency cases can find plenty of loose analogies, and few or no precise ones. They can also find precedent to support almost any standard of First Amendment review, which leaves them free to be as outcome-oriented as they wish in advancing their preferred policies. With the Supreme Court having granted review in the NetChoice cases, now is the time to think much harder about what those preferred policies should actually be, and what doctrinal framework will best achieve it.
This Article discusses First Amendment concerns with platform transparency laws generally, and the Texas and Florida laws in particular. I will argue that the laws have major problems that were scarcely addressed in the rulings so far—and that there are arguments and framings in favor of transparency that have also been insufficiently considered. I will also identify concrete ways in which the laws might be improved.
