Daphne Keller has posted this draft on SSRN. Here is the abstract:

In its coming term, the Supreme Court will likely consider whether “platform transparency laws” – laws compelling Internet companies like Facebook and YouTube to disclose more about how they moderate their users’ speech – violate the First Amendment. The question arises as part of the NetChoice cases, in which platforms are challenging new social media laws in Texas and Florida. Both the parties’ arguments and the courts’ rulings have, to date, been quite superficial. This Paper examines in depth the First Amendment concerns that arise when lawmakers require transparency about platforms’ moderation of online speech. It argues that the rulings so far have disregarded the key issue: the risk that transparency laws will become a mechanism for governments to quietly reshape platforms’ editorial policies, and thus assume new state control over ordinary people’s online speech. It surfaces important precedent, practical issues, and policy considerations that have been unexamined in the literature to date. As a doctrinal matter, it concludes that applicable First Amendment law is highly indeterminate. Advocates — and justices — can effectively pick the outcomes they want, and find arguments to support them. That makes the development of better theories and constitutional analysis of the NetChoice platform transparency laws a matter of some urgency.

The Paper describes the specific transparency mandates in at issue in the NetChoice cases, and the concrete ways in which poorly-tailored transparency mandates may cause platforms to change the editorial policies that they apply to Internet users’ speech. This burden on speech is fundamentally different from the burdens assessed in cases about disclosure mandates in areas like food safety. Yet courts in the NetChoice cases to date have relied solely on such precedent, treating speech like any other commercial good or service. As a result, they have disregarded important alternate strains of case law, from both the regulatory context and the speech law context. This approach has left the analysis in the NetChoice cases blind to several major looming issues, including the cases’ implications for businesses’ increasing, “weaponized” use of the First Amendment as a legal tool against the regulatory state. It has also left transparency advocates unable to rely on an important alternate grounding for future platform transparency mandates, as a means of advancing democratic self-governance goals.