My New Article Drops a Truth Bomb on Zauderer and Censorial Efforts to Mandate Editorial Transparency

The battle over online free speech has drifted away from direct Section 230 reform and towards a variety of other regulatory ideas that would instead undermine Section 230’s core principles. One such ancillary battleground involves the regulatory push for “editorial transparency,” such as the laws adopted in Florida, Texas, New York, and California. These disclosure obligations are typically framed as a standard consumer protection measure, but they are really a powerful censorship tool that tells online publishers what editorial decisions they should make, backed up with a threat of investigations and enforcement if the publishers make decisions the regulators don’t like. Even if you are a fan of voluntary transparency disclosures by publishers (both online and off), you should be very nervous about how partisan and bad-faith actors will weaponize compelled editorial transparency to effectuate censorship.

Because of the obvious censorial effects of compelled editorial transparency, it seems like the First Amendment should have a lot to say about them. To sidestep those concerns, compelled editorial transparency proponents invoke the 1985 Zauderer Supreme Court precedent, which effectively provides a fast-lane around Constitutional scrutiny. Given how much regulatory energy has shifted to editorial transparency requirements,  the 37 year old Zauderer precedent has become the possible keystone for the future of free speech online.

For reasons that aren’t entirely clear to me, Zauderer baffles virtually everyone. Some of this reflects the court’s inadequate description of the test (about 150 words); some of it reflects that Zauderer is being invoked to justify an extremely diverse range of disclosure obligations. Whatever the reason, I’ve seen many smart people misquote or misread Zauderer, and bad-faith actors love to invoke Zauderer because it normalizes their censorship.

To cut through the cruft, I took a fresh look at the Supreme Court’s Zauderer jurisprudence, such that it is, and report my findings in my new paper, Zauderer and Compelled Editorial Transparency. In the paper, I define the Zauderer test, show how it’s been misinterpreted, and explain why Zauderer doesn’t come close to justifying compelled editorial transparency. That doesn’t mean the compelled editorial transparency laws are automatically unconstitutional; it just means we need to get Zauderer out of the way so we can have the real discussion.

This paper supplements my paper from earlier this year, The Constitutionality of Mandatory Editorial Transparency. That paper had a few sentences on compelled speech, basically saying it was a mess. It was an obvious corner-cut driven by my lack of time to complete the project and the journal’s strict word count (which I ended up exceeding anyway). This paper comes back and blows out that short discussion into the fuller treatment it deserved. So I consider the papers to be two halves of a whole.

If podcasts are your sort of thing, check out this podcast I did with Mike Masnick. It’s a great conversation that will get you up to speed.