I Filed an Amicus Brief Against New York’s Editorial Transparency Law

September 27, 2023 · by · in Content Regulation, Internet History

Earlier this week, TechFreedom (led by Corbin Barthold and Andy Jung) and I filed an amicus brief with the Second Circuit against N.Y. General Business Law Section 394-ccc, the 2022 law that requires social media platforms to disclose their editorial policies towards “hateful conduct.” A New York federal district court preliminarily enjoined the law on constitutional grounds, and the case is now on appeal to the Second Circuit.

Our brief’s main point is to confirm with the court that we cannot find any examples of government-compelled editorial transparency in the non-Internet world, other than some broadcaster requirements that are not analogous due to the reduced First Amendment protections for broadcasters. We canvassed dozens of media law experts to see if they were aware of some historical regulations that we couldn’t find any other way; that canvassing yielded nothing new. If you think we’ve missed something, I would really appreciate the tip.

It’s impossible to prove the negative, but I grow increasingly convinced that imposing compelled editorial transparency on print publishers is a novel regulatory “innovation” of the Internet era–and, in my opinion, an extremely unwelcome one because of the mischief caused by government transparency dictates and, even more importantly, by any enforcement efforts of those dictates. It is definitely counterintuitive to oppose transparency requirements due to our strong regulatory and social norms in favor of transparency. However, every policy tool has its limits, and we need to be more forthcoming about those limits when it comes to compelled transparency into editorial functions.

For more on these topics, see my pieces:

No matter what it says, the Second Circuit ruling will not be the final word on this topic. I’m hoping the Supreme Court will hear the challenges to the transparency pieces of the Florida and Texas social media censorship laws. Even if they decline to do so, the issue will reappear on their docket quickly and frequently.

Many thanks to Corbin, Andy, and the TechFreedom team for their important work on this project and for giving me the opportunity to collaborate with them.