The Challenge of Regulating Social Platforms

From the abstract for Kyle Langvardt, A New Deal for the Online Public Sphere, 26 George Mason Law Review ___ (2019):

Social media platforms have emerged as formidable regulators of online discourse, and their influence only grows as more speech activity migrates to online spaces. The platforms have come under heavy criticism, however, after revelations about Facebook’s role in amplifying disinformation and polarization during the 2016 presidential election. Policymakers have begun to discuss an official response, but what they envision – namely, a set of rules for online political ads – addresses only a small corner of a much wider set of problems. Their hesitancy to go deeper is understandable. How would government even go about regulating a social platform, and if it did, how would it do so without intruding too far on the freedom of speech?

This Article takes an early, panoramic view of the challenge. It begins with a conceptual overview of the problem: what kinds of risks do online platforms present, and what makes these risks novel compared to traditional First Amendment concerns? The Article then outlines the eclectic and sometimes exotic policies regulators might someday apply to problems including false news, private censorship, ideological polarization, and online addiction. Finally, the Article suggests some high-level directions for First Amendment jurisprudence as it adapts to online platforms’ new and radically disruptive presence in the marketplace of ideas.

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