The Fight Over the Legal Status of Digital Platforms

In April 2021, Justice Thomas wrote his concurring opinion in Biden v. Knight First Amendment Institute (opinion at the link), concurring in the decision to vacate as moot the case in which the Second Circuit found a First Amendment violation in President Trump’s blocking some users from his Twitter account. The concurrence provides somewhat of a roadmap for future regulation of digital platforms that at least potentially could pass future court muster.

Law Professor Eugene Volokh at The Volokh Conspiracy: “As I read it, Justice Thomas is not arguing that platforms are already generally common carriers or government actors under existing legal principles; that argument is quite a stretch, and his analysis seems to me to largely reject that argument, except perhaps when the platforms are restricting speech in response to government threats. Rather, he is anticipating what might be done through legislation, and whether new state laws that do treat platforms as common carriers (more or less) are going to be seen as blocked by the First Amendment or 47 U.S.C. § 230. (His analysis of the interests involved may also be relevant to whether such state laws violate the Dormant Commerce Clause.) That’s an issue the Court will likely have to deal with in coming years.”

Professor Volokh published a July 5, 2021 draft (pdf; 79 pages) of his law review article “Social Media Platforms as Common Carriers“. He also has written a series of interesting posts at Reason.com (collected here) discussing the topic.

Recommended:

Law, Tech and Policy

U.S. Supreme Court Upholds Fair Use in Google-Oracle Software Battle (April 8, 2021) – Santa Clara law professor Tyler Ochoa with a lengthy blog post (8,000 words) explaining the decision.

Why It’s Easier to Move Country than Switch Social Media (April 12, 2021) – Activist and author, Cory Doctorow, on the importance of dealing with switching costs, in addition to a renewed emphasis on antitrust and interoperability.

Token Safe Harbor Proposal 2.0 (April 13, 2021) – SEC Commissioner Hester Pierce, with an update to her earlier proposal for a token safe harbor that would provide network developers with a three-year grace period within which, under certain conditions, they could facilitate participation in and development of a functional or decentralized network, exempted from federal securities registration requirements.

Final Report on Facial Recognition Technology (FRT) – (96-page pdf at the link: “New Surveillance Technologies in Public Spaces – Challenges and Perspectives for European Law at the Example of Facial Recognition” (April 2021)).

President Biden’s Executive Order on Improving the Nation’s Cybersecurity – (May 12, 2021), along with accompanying White House Fact Sheet and Politico’s press coverage