First Amendment Commons^™

Unfriending The Kids: The Problematic Race To Childproof Social Media, Randolph A. Robinson Ii

Cleveland State Law Review

A growing number of states have recently enacted new laws with the goal of protecting young people from potential harm allegedly caused by social media use. These laws are diverse in their approaches but broadly seek to limit youth access to social media platforms by imposing age verification and parental consent requirements. These laws directly implicate the First Amendment rights of both young users who will no longer be able to access speech or speak on social media platforms as well as adult users who must now submit to age verification to access these quintessential forums for political discourse.

These …

A Constitutional Black Box: Critically Assessing The Constitutional And Algorithmic Implications Of The Netchoice Cases, Sam Merkatz

Bates College Undergraduate Law Review

In 2024, the Supreme Court of the United States jointly heard Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, cases challenging Florida and Texas statutes that restricted the capacity of social media platforms to moderate content. While remanding the cases, the Court reaffirmed that content moderation and curation qualify as protected expression under the First Amendment. This paper critically assesses the Court's majority opinion and its nonbinding dicta regarding the expressive nature of algorithmic moderation.

Specifically, drawing on Justice Alito’s concurrence in judgement only, this paper argues that the Court fails to account for fundamental differences between traditional …

Platforms, Power, And The Public Square: The Debate On Editorial Rights In The Age Of Social Media, Donovan Smith

St. Thomas Law Review

Social media has taken a hold on society and continues to tighten its grip; its influence is undeniable. Today, billions of people all over the world use social media for news, weather updates, communication, commerce, and self-expression every day. With the increasing dependence on social media, it is essential that the civil liberties and fundamental rights of social media users remain protected. Over the last decade, censorship of users and content on social media has become a key political talking point, especially when coupled with concurring events like elections and global pandemics. But is any of this censorship even allowed? …

Tiktok, The First Amendment, And Regulating Speech On The Internet, Marriah Binek

Roger Williams University Law Review

No abstract provided.

Body Of Law: When Content Moderation Becomes Gender Oppression And Triggers Legal Consequences, Sarah E. Bahrenburg

Journal of Race, Gender, and Ethnicity

For as long as the Internet has existed, it has been used as a tool for good and as a tool for malice. However, there is a discrepancy between punishment for those maliciously invading individuals’ personal space and those posting consensual images of themselves for art or entertainment purposes (not to mention for work). Over the years, while attempting to create safe spaces for people to express themselves, the Internet has also created barriers to individuals doing just that. The Internet and the laws surrounding exposure therein have become increasingly misogynistic and anti-women’s sexual freedom. The laws encompassing safety on …

Disclosures, Disclaimers, And Disinformation Advertising, Areeb Asif

Northwestern Journal of Law & Social Policy

Every regular internet user in the United States has been exposed to fake news at some point. Most of them, if not all, would agree that this problem needs a solution. Nevertheless, even as fake news has taken on unforeseen prominence in recent years, very little concrete action has been taken to curb its impact on American society. Some scholars have chalked this up to the Supreme Court’s expansive conception of the First Amendment, which makes it incredibly challenging to regulate political speech. Others posit that the problem is Section 230, which allows platforms to profit from fake news without …

From The Bench To The Feed: Conflict Between Public Official Accounts And The First Amendment, Betty Yu

Washington Law Review

Imagine one day waking up, opening Facebook, and discovering that the official White House account blocked you because you left a comment expressing a viewpoint. In this case, your First Amendment right to free speech would most likely be violated. However, what happens if your local official blocks you or deletes your comments? Are your First Amendment rights violated? Well, it depends.

Historically, public officials have used public forums such as town halls to meet with citizens and answer questions. However, as social media platforms like X and Facebook have become increasingly crucial tools for communication, the distinction between personal …

Control As A Constitutional Threshold: Moody V. Netchoice And The Case For Human Authorship, Giselle Goad

Northwestern University Law Review

The Supreme Court’s 2024 decision in Moody v. NetChoice, LLC left a critical question unanswered: when do algorithmic outputs on social media platforms, such as recommended posts and videos, constitute the platform’s protected speech under the First Amendment? This Note contends that courts and litigants should borrow from the First Amendment’s speech-promoting partner, copyright law, and its authorship framework when answering that question. Copyright doctrine has already begun to grapple with how much human control is required over expressive outputs generated with the aid of technology, including AI, in order for an author to receive copyright protection over those outputs. …

Time’S Up: Limiting Employer Retaliation Over K-12 Teachers’ Speech In An Internet That Never Forgets, Megan Listenbee

University of Arkansas at Little Rock Law Review

No abstract provided.

Tort Liability For Failure To Age Gate: A Promising Regulatory Response To Digital Public Health Hazards, Matthew B. Lawrence, Brett Frischmann, Avi Sholkoff

Faculty Publications

Tort liability for failure to “age gate” is a promising legal response to the public health hazards of AI, social media, sports gambling, and other digital spaces. Tort liability for failure to “age gate” hinges liability for harms to minors on an app’s failure to take reasonable steps to prevent minors from gaining access or otherwise to apply appropriate governance rules, such as privacy-protective default settings or ensuring genuine parental consent. While no one legal response is a panacea, tort liability for failure to age gate carries several distinctive advantages that make it a particularly promising option at this stage …

Applying The Public Forum Doctrine To Public Official And Campaign Social Media Accounts, Jonathan Peters, Skylar Bandoly

Vanderbilt Journal of Entertainment & Technology Law

The US Court of Appeals for the Second Circuit ruled in the 2019 case Knight First Amendment Institute at Columbia University v. Trump that the @realDonaldTrump Twitter account was a designated public forum, making it a First Amendment violation for President Trump to block users from it on the basis of their viewpoints. A few years later, in the 2024 case Lindke v. Freed, the US Supreme Court established a two-part test to determine whether a public official’s social media activity constituted state action under 42 U.S.C. § 1983. This Article reviews these and related cases to explore—in the context …

The Next Generation Of Free Expression Scholarship: A Very Short Manifesto (In Memory Of Fred Schauer), Mark Tushnet

William & Mary Bill of Rights Journal

This Manifesto begins with a discussion of the accomplishments of the prior generation of free expression scholarship. The core of the Manifesto starts with a description of the idea of epistemic authority and draws upon Leiter’s analysis to show its importance in free expression theory. It emphasizes, with Leiter, that epistemic authority is relational: between and among epistemic authorities, and between such authorities and “ordinary” citizens (that is, those who aren’t near the core of an epistemic community that, as a collective, defines the community’s core and boundaries).

That discussion is followed by a description of challenges to the idea …

Censorship As A Cure For The Youth Mental Health Crisis In The United States: Utah's Social Media Ban For Minors, Lora M. Singh

William & Mary Journal of Race, Gender, and Social Justice

On October 1, 2024, Utah’s Social Media Regulation Act was scheduled to go into effect, regulating minors’ access and relationship to social media platforms. The Act will, in part, require minor account holders to obtain parent or guardian consent to maintain a social media account, limit the hours minors can be on social media, and prohibit social media platforms from using “addictive” features with minors’ social media accounts. Utah’s Legislature enacted the Social Media Regulation Act in response to the current mental health crisis among Utah minors, which is part of a larger mental health crisis among youth across the …

Let The Sunshine In: Crafting Constitutional Transparency Regulations For Content Moderation, Caitlin Ring Carlson

Seattle University Law Review

In response to public concern about the impact of social media, legislators in some U.S. states have developed laws to regulate the process of content moderation. Many include mandatory transparency and disclosure requirements, some of which courts have already deemed an unconstitutional infringement on social media platforms’ right to free expression. This article explores the parameters for crafting constitutional social media transparency regulations using existing U.S. media policy and insights from recent legal challenges. The resulting analysis identifies content neutral transparency requirements that mandate the disclosure of purely factual, non-controversial information as those most likely to withstand judicial scrutiny. Specifically, …

Protecting The Presumption Of Innocence: Tiktok Detectives, Misinformation And Private Content Moderation, Paige Sanders

Utah Law Review

The presumption of innocence is a fundamental component of the American legal system, but modern media platforms undermine its effectiveness. Platforms like TikTok have become popular sites for true crime content, allowing online detectives to spin their own narratives about high-profile crimes, often with little regard for the truth. This trend undermines the integrity of the legal system and causes irreversible harm to those being baselessly accused on social media. While TikTok and other social media platforms employ guidelines to moderate users’ content, they consistently fall short in preventing the spread of unverified true crime content. This Note explores TikTok’s …

From Likes To Legislation: How The Internet Has Facilitated Hate Speech, Anti-Dei Discourse And Policy, And Threatens Our Democracy, Carmen Lynn Benavides-Garb

Undergraduate Scholarship

I argue that the way hate speech, and Anti-DEI rhetoric spreads online, through social media and algorithms, has impacted real-world Anti-DEI policies, attitudes, and overall backlash. In this essay I will begin by discussing the four themes found in my literature review, 1) Online Hate Speech, 2) Social Media and Algorithms, 3) Diversity, Equity, and Inclusion (DEI), and 4) Anti-DEI Movements. From there, I will discuss the historical background of DEI movements in America to provide context about what makes this moment in history unique. I will then discuss the role of the Trump Presidency in relation to Anti-DEI work. …

The First Amendment, Global Corporate Responsibility Standards, & The Quest For Online "Speech Nirvana", Evelyn Aswad

Faculty Articles

With large and powerful social media companies operating as worldwide speech regulators, it is unsurprising that governments have attempted to not only regulate how these companies address platform speech but also pressure them to deliver preferred speech outcomes. In 2024, the Supreme Court decided two cases addressing both themes in the U.S. context. In Moody v. NetChoice, the Court explained how legislation regulating private platform curation of usergenerated content runs afoul of First Amendment protections. And, in Murthy v. Missouri, the Court appeared to erect significant hurdles to challenging alleged governmental coercion of such platforms. These cases have left many …

If It Was Good Enough To Work Against The Nazis . . . : Revitalizing The Foreign Agents Registration Act To Regulate Modern Foreign Electioneering, Troy Mccurry

Catholic University Law Review

News headlines from the 2016 election to the present have described an ongoing political scandal that is unmatched in modern history: continued attempts of foreign interference in U.S. elections. It is fairly obvious that the United States lacks adequate restrictions to prevent foreign interference in U.S. elections. It therefore needs a law that—while passing constitutional scrutiny—prohibits more foreign political activity than what is currently covered, especially in relation to social media. This should be a simple and effective legislative fix, a return to the core aspects of the original Foreign Agents Registration Act (FARA) that focuses on potential electioneering of …

Stitch Incoming: Lindke V. Freed’S Impact On Social-Media-Blocking Litigation, Clare R. Norins, Mark L. Bailey

Washington and Lee Law Review Online

Since at least 2016, social-media-blocking litigation against government officials who censor their online critics has been an evolving battleground for First Amendment rights of free speech and petition. In 2024, the United States Supreme Court issued its first substantive opinion on social media blocking, holding that government officials’ social media activity, even on a personal account, constitutes state action triggering constitutional scrutiny if (1) the official possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when she spoke on social media.

In this Article, we explain the Court’s novel two-part test for determining …

Chilling Victims’ Rights: The Supreme Court Creates A “Pride Of Place” For True Threats, Ana Maria Matovic

Dickinson Law Review (2017-Present)

Living in the Information Age means that information is literally always at our fingertips. This also means that keeping tabs on one another is as easy as a tap on a screen. The effortless ability to follow another’s life on the internet has led to a sinister phenomenon: cyberstalking. Prosecuting cyberstalking cases poses complex constitutional challenges. Specifically, prosecuting these cases may clash with a perpetrator’s First Amendment right to free speech. However, the First Amendment does not protect all categories of speech. One of those unprotected categories is the category of “true threats.” If a perpetrator’s conduct constitutes a “true …

Minor Exploitation And Regulatory Shortfalls: Safeguarding Children’S Data In The Age Of Modern Technology, Kaylee Lahti

Theses/Capstones/Creative Projects

This paper looks into the issue of minors in the era of social media and seeks to answer the question: how can regulations help to protect children’s privacy in the age of social networks? To do this, this paper will start by exploring the privacy issues that have arisen amongst minors in the modern age and the lack of accountability for social networking companies. It will then look at the current regulations related to this issue and see where these regulations have fallen short. Next, possible regulatory solutions to this issue will be explored, including looking at current laws that …

Anti-Antisemitism Now, Lili Levi

University of Miami Law Review

On May 25, 2023, the Biden Administration released The U.S. National Strategy to Counter Antisemitism—America’s first national strategy of this kind. In early November 2023, the White House announced the establishment of the first-ever U.S. National Strategy to Counter Islamophobia. These historic commitments respond to increases in identity-based bias incidents and expression against Jews and Muslims. Antisemitic incidents, which were already rising even before the pandemic, increased by almost 400% since the start of the Israel-Hamas war. The war also triggered a sharp upturn in Islamophobic incidents in the U.S., including the shooting of three college students and …

The Twenty-Six Words That Created The Internet… And Then Maybe, Kind Of, Destroyed Society: Understanding And Reforming Section 230 Of The Communications Decency Act, Nandor F. R. Kiss

Michigan Technology Law Review

In 1996, Congress passed Section 230 of the Communications Decency Act, a twenty-six-word law that immunized early internet companies from civil immunity arising from hosted, third-party content. At the time, the law was necessary to allow fledging companies to innovate without fear of bankruptcy-inducing lawsuits and ultimately helped to create the internet as we know it. To the extent this civil immunity has contributed to the vast technological advances over the past three decades, it should be lauded. However, the internet has dramatically changed in the past thirty years, and the law has been relied upon to protect companies in …

Social Media, The Modern Public Forum: The State Action Doctrine And Resurrection Of Marsh, Erika L. Andersen

Mitchell Hamline Law Review

No abstract provided.

Virtual Justice: Criminalizing Avatar Sexual Assault In Metaverse Spaces, Olivia Bellini

Mitchell Hamline Law Review

No abstract provided.

Machine Manipulation: Why An Ai Editor Does Not Serve First Amendment Values, Alec Peters

University of Colorado Law Review

The past few years have seen increasing calls for regulation of large social media platforms, and several states have recently enacted laws regulating their content moderation, promotion, and recommendation practices. But if those platforms are exercising editorial discretion when carrying out these tasks, many of the regulations will run into constitutional concerns: the First Amendment protects the “exercise of editorial control and judgment” by publishers over their choice of content and how it is presented. However, the editorial operation of social media platforms differs significantly from traditional media, most importantly in the use of artificial intelligence (AI) for editorial decision-making. …

The Public’S Companies, Andrew K. Jennings

Fordham Journal of Corporate & Financial Law

This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?

The studies’ results are consistent with understandings that both public and private companies have greater public …

The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier

University of Miami Law Review

Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media. …

For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen

University of Miami Law Review

Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …

Disrupting The Narrative: Diving Deeper Into Section 230 Political Discourse, Koustubh “K.J.” Bagchi, Elizabeth Banker, Ife Ogunleye

Pepperdine Law Review

Online spaces have undoubtedly played a significant role in facilitating discourse and the exchange of information. With this increased discourse, however, digital platforms have also seen a rise in harmful or problematic content shared online––including health misinformation, hate speech, and child sex abuse material, among others. Many commentators have put the blame for this trend on Section 230, arguing that Section 230 has enabled the spread of harmful content and suggesting that Section 230 ought to be amended or replaced. This Essay, by contrast, argues that the current narrative about Section 230 gets it wrong. In reality, Section 230 has …