Dawn Carla Nunziato

Volume 73, Issue 5, 1255-1304

Dominant social media platforms have been increasingly perceived as engaging in discrimination against conservative and right-wing viewpoints. Trump’s deplatforming, coupled with the platforms’ recent removal of Covid- and election-related misinformation, led to cries of censorship by conservatives and increased calls for regulation of the platforms. Supreme Court Justice Thomas took up this charge, suggesting a regulatory path forward for lawmakers seeking to hold the platforms liable for alleged viewpoint discrimination and censorship.

This Article examines the desirability and constitutionality of recent legislative initiatives that seek to provide remedies for these alleged ills and to rein in the dominant platforms’ discretion exercised in content moderation decisions by prohibiting them from engaging in viewpoint discrimination, and by imposing notice, transparency, and other due process-type obligations. This Article analyzes the proposed legislation in light of the obligations that the U.S. government historically has historically imposed on common carriers and broadcasters. This Article then examines the procedural dimensions of our free speech commitments and values and our commitments to due process, including those enshrined in the Constitution and in International Covenant on Civil and Political Rights.

This Article concludes with a favorable assessment of the desirability and constitutionality of proposed legislation that would require platforms to comport with principles of nondiscrimination and due process. This Article contends that, while the platforms should continue to enjoy the discretion to regulate many categories of speech that are protected by the First Amendment and to restrict speakers in clear and blatant violation of their terms of service, the dominant platforms should generally be prohibited from engaging in blatant viewpoint or speaker-based discrimination and should be required to accord their users certain due process type protections.