Social Media disclosure requirements are unconstitutional compelled speech

The Supreme Court’s decision in Moody v. NetChoice and NetChoice v. Paxton may fundamentally alter free speech online. 

On Monday, the Supreme Court will consider whether state legislation can compel social media companies to leave up posts on the platforms that they would otherwise take down. One of the major points of contention is the legitimacy of disclosure requirements which, if accepted by the court, will have significant implications for the future of user-generated content online.

In 2021, Texas and Florida enacted social media laws in the hopes of quashing what the states call conservative “censorship” on major platforms such as Facebook and X (formerly Twitter). Tech companies, represented by the trade association NetChoice, contend that the laws are constitutionally unsound and tread over their right to exercise editorial discretion. They are antithetical to the First Amendment, which protects the public against government censorship, and “vests private parties with control over what speech and speakers to allow on their forums they create.” 

In both the Texas and Florida laws, content moderation restrictions work hand-in-hand with onerous disclosure requirements. Florida’s law mandates that a platform give a detailed and individualized explanation to each user whom it “deplatforms,” “censors,” or “shadow bans” within seven days. The Texas law has a similar requirement and outlines an extensive appeals process. 

Transparency is ostensibly beneficial. Like a student who receives thorough feedback from their professor after a poor exam grade, users may want to know why a platform removes a post or suspends an account, beyond the justifications that many sites already provide. But social media isn’t a lecture hall, and promising millions of users per day that they will receive a thorough and timely rationale for any adverse action is not feasible. It’s also not within the bounds of the First Amendment — and our free market principles — for the government to require disclosures from private companies absent a compelling reason.

Appellate courts were split over the constitutionality of these disclosure requirements and grappled with the precedent set by Zauderer v. Office of Disciplinary Counsel. This 1985 Supreme Court case provided a narrow First Amendment exception for compelled commercial disclosures of “purely factual and uncontroversial information” when such actions are related to a legitimate state interest and “not unjustified or unduly burdensome.” The Zaudererstandard has been used in product labeling and advertising cases, but not in the social media context. 

While the Fifth Circuit upheld Texas’ disclosure provision, the 11th Circuit found that notice and detailed justification for every content moderation decision is “substantially likely” to be unconstitutional under Zaudererbecause “it is unduly burdensome and likely to chill platforms’ protected speech.” 

Elizabeth Prelogar, the U.S. Solicitor General, agreed, describing in a brief how the individualized explanation mandates tread over the platforms’ “expressive activity” and that the states have not provided adequate justification for imposing this heavy burden. 

There are also practical hurdles to these mandates, as both Prelogar and the 11th Circuit acknowledged. Even if the state laws were constitutionally valid, it would be impossible for the companies to comply with the disclosure requirements given the vast amount of content removal. The platforms targeted by the statutes take down millions of posts per day. The 11th Circuit pointed to YouTube specifically, which removed more than a billion comments in a single quarter of 2021.

Social media companies would not only have to answer for the benign or offhanded political posts that state officials are trying to protect, but for every violent, harassing, and unwanted post that the platforms are justifiably eager to take down quickly. Platforms will thus have to leave up billions of negative posts, institute greater restrictions on all users, or expose themselves to legal liability. None of these outcomes are good for users.

The Supreme Court’s decision on these transparency provisions will have significant consequences for online speech and the technology sector at large, especially since lawmakers intend to regulate AI and emerging technologies through similar requirements. The states’ social media disclosure requirements do not fit into the Zauderer exception and thus violate the First Amendment.

Rachel Chiu is a Young Voices contributor and a Blume Scholar at the Georgetown University Law Center. She tweets @rachelhchiu.