New Article: “The United States’ Approach to ‘Platform’ Regulation”

This paper summarizes the United States’ legal framework governing Internet “platforms” that publish third-party content. It highlights three key features of U.S. law: the constitutional protections for free speech and press, the statutory immunity provided by 47 U.S.C. § 230 (“Section 230”), and the limits on state regulation of the Internet. It also discusses U.S. efforts to impose mandatory transparency obligations on Internet “platforms.”

I was asked to write this article last summer as part of a multi-author global survey of “platform” law (I put the word “platform” in quotes for reasons I explain in the article), and it navigates a lengthy questionnaire that was posed to all contributing authors. While I have written Section 230 explainers before (this is my flagship), this piece is broader because it surveys the First Amendment in addition to 230 and other topics. For that reason, I think this piece may be even more helpful than my prior explainers as a reader-friendly one-stop overview of online speech law in the US.

Unfortunately, the piece could have a relatively short shelf life–perhaps as early as the Supreme Court’s Gonzalez and Taamneh decisions in a couple of months. If not then, it will quickly grow out of date due to the tsunami of state censorship laws being enacted this year and ensuing judicial opinions on their constitutionality. So enjoy this explainer now, while it still reflects prevailing law, and before it turns into a historical snapshot of a less censorial era.