A case for ideological coherence in regulating online speech: going back to basics to manage the (not so) difficult interplay between free speech and economic freedoms

ABSTRACT

The article draws an updated picture of the regulation and case-law on online speech, with a particular focus on the United States. It considers the most important regulatory innovations, several significant cases, and the main positions in the public debate, not only academic. The perspective offered is different from the most popular approaches to the regulation of the subject, and includes a reflection about whether the large platforms hosting user-generated content remain exclusively private entities, or if they should be subject to certain rules provided for the public administration. The conclusion reflects on the intersections that occur online between freedom of expression, ‘economic speech’ and freedom of economic initiative.

KEYWORDS:

• Online speech
• user-generated content
• Section 230

Acknowledgments

I would like to thank IREF for its generous support in the research required for this article, Carlo Lottieri for his valuable discussion of a topic greatly important to him, Giovanni Boggero for some valuable suggestions on an earlier version, Marco Giraudo and Massimiliano Trovato for some very useful reading recommendations, as well as all the participants to IREF workshop 2022, organised in Naples on 8 October 2022, for their helpful feedback. IREF also published a previous version of this article on their website, as a working paper. A previous version in Italian was also published by the law review Il diritto dell’economia.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 It is beyond the scope of this work to attempt to provide a synthetic, and inevitably incomplete, bibliography: the scholarship on the field is by now immense and, moreover, continuously growing, and it encompasses monographs, scientific journals (including relatively new entries such as the Journal of Free Speech Law, whose first issue contains a particularly noteworthy text: Balkin 2021; by the same author see also, among many others, Balkin 2004), as well as popular publications, research by think tanks and interest groups, studies by institutions, articles in newspapers and magazines, and so on. Of course, I will give an accurate account of the main works that I have considered in addressing specific issues, without making any claim to comprehensiveness given the enormous publishing landscape that exists on the subject. I would also like to point out that I will not deal here with other relevant topics connected to online speech that are different from the one that I will specifically focus on here, such as the consequences in school or job relations of online manifestations of thought (that was recently the subject for instance of the U.S. Supreme Court case Mahanoy Area School District v. B.L., 594 U.S. ___ (2021). https://supreme.justia.com/cases/federal/us/594/20-255/).

2 In this landscape, two proposals that are notable for their originality are Giraudo’s one, although avowedly in the line of classical liberalism, to adapt ‘decentralized regulatory models’ developed in areas such as polluting emissions to freedom of expression is notable for its originality (Giraudo 2021, 108), and that of Frischmann and Benesch (2023) to adopt deliberate slowdowns to the otherwise unstoppable flow of opinions expressed in digital environments; see also several older articles on the topic by Frischmann (in particular 2008).

3 de Caria 2019. On this topic, see several Chapters of Brison and Gelber (2019).

4 This Russian neologism is very appropriate because it literally means self-publication.

5 I owe this idea to Michele Graziadei; I also expressed it in de Caria 2022.

6 See Felton 2014. An interesting historical account is the one recently published by Mchangama (2022).

7 Reno v. ACLU, 521 U.S. 844, 870 (1997). https://supreme.justia.com/cases/federal/us/521/844/.

8 See the interesting multi-voice reflection promoted by the online newspaper Politico (2022).

9 Among many studies on the subject, a reference point, although already dating back more than ten years, is Berger and Milkman (2012).

10 Reno v. ACLU, 521 U.S. 844, 870 (1997). https://supreme.justia.com/cases/federal/us/521/844/.

11 According to data from Statista, the global digital population as of October 2023 was 5,3 billion; of which around 93%, or 4,95 billion, were social media users (Statista n.d.). Cf. also the figures cited by Giovanni De Gregorio (2022, 157–158): ‘More than two billion users are today governed by Facebook’s community guidelines, and YouTube decides how to host and distribute billions of hours of video each week’; Chapter 5, ‘Digital Constitutionalism and Freedom of Expression’ is a treasure trove of bibliographical information on the subject. Among many other works, see the recent Celeste, Heldt, and Iglesias Keller (2022) and also Celeste (2022).

12 Ligue contre le racisme et l’antisémitisme et Union des étudiants juifs de France v. Yahoo! Inc. et Société Yahoo! France (LICRA v. Yahoo!), Tribunal de Grande Instance de Paris, 22 May 2000. See also, much more recently, Eva Glawischnig-Piesczek v Facebook Ireland Limited, Court of Justice of the EU, C-18/18, 3 October 2019, on the extraterritoriality of the right to be forgotten, as well as the lawsuit brought by a Canadian billionaire against Twitter in Canada over a series of tweets he deemed defamatory: see Proctor (2021).

13 See, e.g., the very early publication by Goldsmith (1998). On this subject, one should note the decision of the Supreme Court of British Columbia, Equustek Solutions Inc. v. Jack, 2014 BCSC 1063, which established an obligation for Google to remove search results (for infringement of intellectual property) in all jurisdictions (not only in Canada, to which Mountain View’s removal action was limited); this case was then followed up in the Supreme Court of Canada in the case Google Inc. v. Equustek Solutions Inc. (Equusteck I), 2017 SCC 34, then again in the U.S. District Court for Northern California, Google LLC v. Equustek Solutions Inc. (Equustek II), No. 5:17-cv-04207-EJD, and in the Supreme Court of British Columbia, Equustek Solutions Inc. v. Jack (Equustek III), 2018 BCSC 610. On the issue of whether Google’s search results can amount to a ‘constitutionally protected activity’ (the expression is contained in an order of the Superior Court of California, County of San Francisco, S. Louis Martin vs. Google, Inc. CGC-14-539972), and in particular to a manifestation of thought protected by the First Amendment, the ideal reference is to the well-known paper written for Google by Volokh and Falk (2012).

14 See e.g. Hao (2021); Gorwa, Binns, and Katzenbach (2020); Nahmias and Perel (2021). See also the report of the European Union Agency for Fundamental Rights (2022, in particular 49-75).

15 For a discussion of the implications for the balancing of freedom of expression and protection of privacy deriving from the raise of social media, see Barata (2023).

16 For a comparative study, see Rochefort (2020). See also Vranaki (2022); Koltay (2021); see as well the initiatives of Yale Law School (2022) and University of Oxford, Faculty of Law (n.d.).

17 47 U.S. C. § 230 – Protection for private blocking and screening of offensive material.

18 See, among many others, Kosseff (2019).

19 Consider e.g. Bollea v. Gawker, which led to the bankruptcy of the very popular gossip site: on this topic, see First Amendment Watch at New York University (n.d.).

20 I found this expression featured in Nolan Brown (2019); as well as in Fruge Corry (2021). See also Harv. L. Rev. (2018). The former in turn quotes Goldman (2019).

21 President Donald Trump, Executive Order 13925 – Preventing Online Censorship, 28 May 2020.

22 However, several proposals have been made, both in academia and in the political debate, gaining bipartisan favour, to repeal or amend this piece of legislation, or others closely connected: see Stigler Committee on Digital Platforms (2019) and Barrett (2020), both quoted in Bazelon (2020). See also Byers (2021).

23 598 U.S. ___ (2023). https://supreme.justia.com/cases/federal/us/598/21-1333/.

24 598 U.S. ___ (2023). https://supreme.justia.com/cases/federal/us/598/21-1496/.

25 Previously, the Court had also dodged the Section 230 question in a very similar case, Force v. Facebook, Inc., in which it denied certiorari, on 18 May 2020, against a ruling from the U.S. Court of Appeals for the Second Circuit (934 F.3d 53 (2nd Cir. 2019)) stating that Section 230 prevented the claim by the plaintiffs, and finding anyway that algorithms recommending personalised content to users did not make Facebook a publisher of such content. On the same day, the Court also denied certiorari in Dyroff v. Ultimate Software Group Inc., a related case from the Court of Appeals for the Ninth Circuit (934 F.3d 1093 (9th Cir. 2019)) also trying to narrow the scope of Section 230. Finally, on 13 October 2020 the Supreme Court again denied certiorari of Malwarebytes, Inc. v. Enigma Software Group USA, LLC, another case from the 9th Circuit (938 F.3d 1026 (9th Cir. 2019)) revolving around Section 230, one of the few to deny immunity.

In this latter case, Justice Thomas made a Statement (592 U. S. ___ (2020). https://news.justia.com/wp-content/uploads/2020/10/malware-enigma.pdf) encouraging the Court to hear future cases in order to consider at least narrowing the scope of this controversial piece of legislation, which had been construed too broadly in his view (the Court did eventually take up Twitter and Gonzalez, but Thomas himself in his opinion stopped short of considering their Section 230 implications).

At the end of such Statement, Thomas criticised Section 230 also for ‘giving companies immunity […] for race discrimination’ and referred in this regard to Sikhs for Justice Inc.(SFJ) v. Facebook, Inc. (No. 15-17441 (9th Cir. Sep. 13, 2017)). In this case, the Court of Appeals for the Ninth Circuit confirmed the district court judgment (N.D. Cal. Nov 13, 2015) that had dismissed a discrimination case brought under the Civil Rights Act by a Sikh group against Facebook for blocking access to their page from users located in India. The courts simply found that Section 230 shielded Facebook from liability under the CRA, while Facebook’ invocation of free speech was not considered. Two similar actions against Twitter were also dismissed on the same grounds. They had been brought by a user whose account had been suspended and then blocked, and who alleged this was due to a discrimination against him being a heterosexual Christian: the almost identical cases are Wilson v. Twitter, 3:20-cv-00054 (S.D.W.V. May 1, 2020); Wilson v. Twitter, Inc., 2020 WL 5985191 (S.D. W.V. Sept. 17, 2020). On his Technology & Marketing Law Blog, Eric Goldman mentioned many other similar cases, systematically upholding Twitter bans (https://blog.ericgoldman.org/). Mention can be found there also of one of the most recent lawsuits failed because of Section 230, concerning Gmail spam filters: Republican National Committee v. Google, Inc., 2023 WL 5487311 (E.D. Cal. Aug. 24, 2023.

26 European Court of Human Rights, Grand Chamber, Delfi AS v. Estonia, 16 June 2015, 64569/09.

27 On the contours of hosting providers’ liability, with particular reference to the type of intervention they exercise on user-generated content, see the important case RTI v. Yahoo!, decided by the Italian Supreme Court in its judgment No. 7708 of 19 March 2019; see also Pollicino, Bassini, and De Gregorio (2021, 90–91).

28 European Court of Human Rights, Sanchez v. France, 2 September 2021, 45581/15. It is also worth mentioning the Italian case where Meta was ordered to indemnify a company that had sued it for failing to promptly remove some defamatory contents, without the need for a prior finding of their libelous nature by a court (Tribunale di Milano, judgment 2 March 2023, No 1681).

29 European Court of Human Rights, Grand Chamber, Sanchez v. France, 15 May 2023, 45581/15. Delfi was instead partly distinguished in Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, issued on 2 February 2016 (22947/13). Here, the Strasbourg Court found a violation of Article 10 ECHR in the conviction imposed by the Hungarian Supreme Court on the owners of a website where some comments had been posted, allegedly defaming a business. In this case, some decisive factors were that the comments were libellous and not discriminatory, and the fact that the victim was a business, but per se the liability for user-generated content was not ruled out. The Court also found a violation in another case from Hungary, Magyar Jeti Zrt v. Hungary, 4 December 2018, 11257/16, finding unacceptable an objective liability standard imposed on a website for including hyperlinks to a YouTube video that might contain defamatory content.

30 Lakier (2021). See also the interview to this scholar by Illing (2021).

31 Most notably R.A.V. v. City of St. Paul, 505 US 377 (1992). https://supreme.justia.com/cases/federal/us/505/377/; Virginia v. Black 538 US 343 (2003). https://supreme.justia.com/cases/federal/us/538/343/; Snyder v. Phelps, 562 US 443 (2011). https://supreme.justia.com/cases/federal/us/562/443/.

32 See The Washington Post (2022).

33 Despite some partially non-concurrent cases, such as Perinçek v. Switzerland, European Court of Human Rights, Grand Chamber, 15 October 2015, 27510/08. See on this topic Mchangama and Alkiviadou (2021).

34 See the factsheet by the European Commission (n.d.). It was followed by the Commission Communication on Tackling Illegal Content Online. Towards an enhanced responsibility of online platforms, COM(2017) 555 final, 28 September 2017, and by the Commission Recommendation of 1.3.2018 on measures to effectively tackle illegal content online, C/2018/1177, OJ L 63, 6.3.2018, 50-61.

35 See Pollicino (2018), 63. By the same author, see also Pollicino (ed., 2023).

36 Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (cf. Pollicino 2018).

37 Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). Admittedly, the Commission presented the initiative as aimed at promoting a ‘co-regulatory framework’, but as such the DSA appears to be rather the result of traditional top-down regulation. The DSA combines with the Digital Markets Act (Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act)), which is specifically aimed at counteracting the strong position of large platforms, as well as with Regulation (EU) 2021/784 of the European Parliament and of the Council of 29 April 2021 on countering the dissemination of terrorist content online. See also the Commission Recommendation of 20.10.2023 on coordinating responses to incidents in particular arising from the dissemination of illegal content, ahead of the full entry into application of Regulation (EU) 2022/2065 (the ‘Digital Services Act’), C(2023) 7170 final.

With reference to the DSA, the following writings are particularly relevant to the topics covered by the present work (including disinformation, cited immediately below in the text), and therefore should be noted among many: Frosio and Geiger (2023); Buiten (2021); Morais Carvalho, Arga e Lima, and Farinha (2021); Mazgal (2021); Savin (2021); Brussels Report (2022).

38 ‘A Bill to make provision for and in connection with the regulation by OFCOM of certain internet services; for and in connection with communications offences; and for connected purposes’.

39 Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz, NetzDG, in English Network Enforcement Act), also known as Facebook-Gesetz, in English Facebook Act, entered into force in 2018 and amended in 2021.

40 Loi n° 2018-1202 du 22 décembre 2018 relative à la lutte contre la manipulation de l’information.

41 Pollicino (2022, 3–4), who acted as an ‘honest broker’ on behalf of the European Commission in reaching this agreement to update the previous version, explained: the ‘members of the EU Commission’s high level expert group on disinformation […] took the view that the issue of fake news needs to be addressed by a self-regulation mechanism only. I was part of that group but I had (and still have) another view […]. [The] new Code […] after the entry into force of the Digital Services Act, will introduce a co-regulatory mechanism and not only a self-regulatory one. The new Code is just a starting point of a new season of co-regulation in the field of disinformation’.

It is beyond the geographical scope of this work, but it is at least worth mentioning Brazil’s activism in the field of disinformation: at first, the federal police decided to increase its surveillance during 2018 electoral campaign, and recently, in the new elections of 2022, the Superior Electoral Court decided to entrust the head of the electoral process the power to remove online content that he deemed a source of disinformation (such decision was found legitimate by a federal judge and then by the Supreme Federal Court). Still in Brazil, between 2019 and 2021 there had been a high-profile criminal investigation ordered by the President of the Federal Supreme Court to fight the spread of fake news on the Court itself: see Global Freedom of Expression (n.d.). See also a brief but useful picture of the situation in South-East Asia: Schuldt (2019).

42 Some critical remarks on how the Commission is handling the DSA systemic risk, with regard to the impact of freedom of expression, were made by Barata and Calvet-Bademunt (2023).

43 Two further well-known books in this vein are Alegre (2023) Zuboff (2019).

44 Cf. the picture resulting from my already mentioned de Caria (2022).

45 See among others Sanchez and McCollum (2022).

46 Cf. the insightful reflections on the subject by Bassini (2019, 237).

47 It is worth clarifying that the proper meaning of ‘censorship’ only refers to actions by government officials: more broadly see again (de Caria 2022).

48 Such interactions tend to take place with others of similar opinions, mutually reinforcing their convictions, and progressively isolating them from contact with others with different opinions: cf. Cinelli et al. (2021). The consideration of platforms’ incentive to maximise, for advertising purposes, time spent on-line by users is made with reference to political disinformation and its possible effects on the democratic process by Jones (2019). While there have been widespread warnings from the progressive side about how online disinformation has facilitated conservative successes, most notably Trump’s victory in 2016, there are also more recent investigations showing exactly the opposite: see Hemingway (2021) (cf. also Mark Zuckerberg’s recent allegations of FBI meddling in Facebook’s handling of the Hunter Biden laptop controversy: see Golding 2022). On this topic, see also, among others, two of the latest books by Cass R. Sunstein: Sunstein (2021 and 2017); as well as two articles by Jonathan Haidt (Haidt 2022a; 2022b).

49 Here and in the following pages, the word liberal is used with the meaning it has in the American political debate, i.e., as a synonym of progressive.

50 For an extremely critical perspective of this evolution, see Soukup (2021).

51 Cf. also the observations by Wolf (2022), who on his turn refers to observations by Mary-Rose Papandrea, as well as to the op-ed by the New York Times of 18 March 2022, America Has a Free Speech Problem (New York Times 2022).

52 Court of Rome, Order of 12 December 2019; Court of Rome, Order of 29 April 2020; Court of Rome, Judgment of 5 December 2022, no. 17909.

53 On this point, see some considerations in the final Section.

54 A similar conclusion was reached in Germany on 6 September 2018 by the Higher Regional Court of Stuttgart (Oberlandesgericht Stuttgart), which upheld the removal of discriminatory posts against immigrants and a 30-day ban that Facebook had inflicted upon one of its users (case 4 W 63/18).

55 Packingham v. North Carolina, 582 U.S. 98 (2017). https://supreme.justia.com/cases/federal/us/582/15-1194/.

56 Justice Gorsuch did not participate in the decision.

57 I have dealt at greater length in de Caria (2021) with the application of fundamental rights to inter-private relations, under the so-called Drittwirkung theory.

58 593 U.S. ___ (2021) Thomas, J., concurring, https://www.supremecourt.gov/opinions/20pdf/20-197_5ie6.pdf.

59 ‘In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at the bottom of communications networks, and they ‘carry’ information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organisations that focus on distributing the speech of the broader public. […] The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today’s dominant digital platforms derive much of their value from network size’ (593 U.S. ___ (2021) Thomas, J., concurring, https://www.supremecourt.gov/opinions/20pdf/20-197_5ie6.pdf, 6-7 of the slip opinion).

60 I limit myself here to citing Jaggi (n.d.) as well as Mark Tushnet’s classic Tushnet (2003). With regard to the many works that have reflected on the operability of this doctrine in the digital world, I would like to mention, in particular, Peters (2018), and already quite long ago Berman (2000). More recently, see Rudofsky (2017); De Gregorio (2019); Patty (2019); Zalnieriute (2019); Pollicino (2021). See also Pollicino and Romeo (2016). I will only point out that, in times long past, Posner had advanced some considerations of law and economics against the necessity of obliging the managers of public facilities to make them available, as a ‘public forum’, to all those wishing to make use of them to express their thoughts: Posner (1986). Although from different perspectives, the ‘public forum’ doctrine was also criticized, among others, by Farber (1991), and Balkin (1990).

61 The case on which this analogy is based is Marsh v. Alabama, 326 U.S. 501 (1946). https://supreme.justia.com/cases/federal/us/326/501/, which held that a city, even if privately owned by a corporation, was still a public place where the First Amendment right to distribute political propaganda leaflets applied.

62 In this case, the references are in particular to Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). https://supreme.justia.com/cases/federal/us/395/367/, in which a ‘fairness doctrine’ requiring networks to grant airtime to candidates in political elections was held to be compatible with the First Amendment on the basis of a primacy of users’ rights over those of broadcasters; and to Turner Broadcasting Systems v. FCC, 512 U.S. 622 (1994). https://supreme.justia.com/cases/federal/us/512/622/ and Turner Broadcasting v. Federal Communications Commission (II), 520 U.S. 180 (1997). https://supreme.justia.com/cases/federal/us/520/180/, two cases concerning the obligation of cable TV operators to reserve certain channels for local TV stations, which was ultimately considered legitimate, despite the premise that there is not the physical scarcity of resources that characterises traditional TV. In addition to these cases, we should mention Manhattan Community Access Corp. v. Halleck, 587 U.S. ___ (2019). https://supreme.justia.com/cases/federal/us/587/17-1702/, in which the Supreme Court ruled out the nature of state actor as regards an operator of a public access private television network, which therefore had the right to exclude whomever it wanted from its schedule (despite high expectations, however, the Court in Halleck did not address the possible implications of the principle it affirmed there in relation to social media).

63 To be sure, the Supreme Court ruled to the contrary in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 24 (1974). https://supreme.justia.com/cases/federal/us/418/241/, declaring unconstitutional a Florida law that established equal treatment obligations for political candidates, based on an instance when a politician had asked a newspaper for permission to respond to an editorial about him, only to receive a refusal. The principle was also extended to public broadcasters in Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998). https://supreme.justia.com/cases/federal/us/523/666/ and to an electricity company that published a monthly newsletter (Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986). https://supreme.justia.com/cases/federal/us/475/1/). However, other subsequent cases have narrowed its scope, ruling out the application of the Tornillo precedent, e.g. with reference to a shopping centre (PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). https://supreme.justia.com/cases/federal/us/447/74/, or to a law schools association that wanted to be able to deny without consequence (in this case, loss of federal funds) access to army recruiters (Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR), 547 U.S. 47 (2006). https://supreme.justia.com/cases/federal/us/547/47/, where the Supreme Court held that there was an obligation to allow such recruiting in order not to lose state funds).

64 Notable among them are the initiatives of Prager University against YouTube and Freedom Watch against Google.

65 Comcast v. National Association of African-American-Owned Media, 589 U.S. ___ (2020). https://supreme.justia.com/cases/federal/us/589/18-1171/.

66 In my opinion, the initiative of the Republican Attorneys General of Missouri and Louisiana to sue senior officials of the Biden administration for allegedly conspiring with Facebook and Twitter to steer their content restriction policies in a number of important matters, including information on the Covid-19 pandemic, is to be evaluated differently: in this case, in fact, the targets of the legal action are public officials, and the objective appears to be to ascertain the degree of interference and pressure exerted by them on the platforms. When I am writing, the case, Murthy v. Missouri (originally State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al.) is pending before the Supreme Court. On 4 July 2023, a preliminary injunction barred the Biden administration from pressuring social media into banning content (except if it was illegal); the scope of the injunction was only partly narrowed by the Court of Appeals for the Fifth Circuit, with an order that was then stayed by the U.S. Supreme Court, which later granted certiorari. Arguably, this criterion can be employed also to distinguish the different areas of revelations included in the so-called Twitter Files: where government officials are actively involved, the need for transparency and accountability appear undisputable.

67 I limit the analysis to regulatory measures that have passed, but the Ending Support for Internet Censorship Act, introduced unsuccessfully by Republican Senator Josh Hawley in 2019, should also be mentioned: for a critique, see Coad (2021). For the sake of information, I would like to point out that a similar initiative was also taken by the former right-wing majority in Poland, although the bill was not eventually turned into law (see Notes from Poland 2021), as well as in Hungary (cf. Nikola Đorđević 2021).

68 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). https://supreme.justia.com/cases/federal/us/558/310/.

69 Brodkin (2022). On this topic, see among many, Yoo (2021).

70 United States District Court for the Northern District of Florida, Case 4:21-cv-00220-RH-MAF.

71 Above all Tornillo, quoted above and discussed later in the text.

72 United States Court of Appeals for the Eleventh Circuit, Case: 21-12355.

73 United States District Court for the Western District of Texas, Austin Division, Case 1:21-cv-00840-RP.

74 United States Court of Appeals for the Fifth Circuit, Case: 21-51178.

75 If Thomas’ position is not surprising, considering some of his opinions referred to above, in particular the one in Knight First Amendment Institute, not surprisingly quoted by Alito, more difficult to decode is the vote of Gorsuch (who had signed the majority opinion in Comcast, quoted just above): it seems likely that his position could be in line with the one expressed in the recent important case of Bostock v. Clayton County, 590 U.S. ___ (2020). https://supreme.justia.com/cases/federal/us/590/17-1618/, where he signed the majority opinion together with Chief Justice Roberts and liberal-minded Justices Ginsburg, Breyer, Sotomayor and Kagan. In that case, the Court surprisingly recognised that the prohibition against sexual discrimination in employment relationships should be interpreted as including also the prohibition against discrimination on the basis of sexual orientation. The deep reason for the decision by Gorsuch seems to me to lie in a profound judicial deference to what he considered to be a very precise choice of the legislature.

76 For a more in-depth analysis, Alito cites the seminal Volokh (2021). On the novelty of the issues addressed, see the observation above, in section 2, as well as the following passage from Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011), https://supreme.justia.com/cases/federal/us/564/786/: ‘whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears’.

77 515 U.S. 557 (1995). https://supreme.justia.com/cases/federal/us/515/557/.

78 Note the contradiction with the aforementioned Red Lion.

79 Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). https://supreme.justia.com/cases/federal/us/447/74/.

80 It is the widely known expression of New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). https://supreme.justia.com/cases/federal/us/376/254/.

81 By this same author, cf. the recent release of Bollinger and Stone (2022). Recently, some arguments have been taken up by Zimmerman (2021) and Zimmerman (2022).

82 See the reflections on the subject by Arun (2021, chapter 12).

83 It was presented in its previous working paper version at the IREF seminar in Bendern, Liechtenstein, on 15 October 2021.

84 An early reflection on internet regulation from a free-market perspective was Morris (2000).

85 Lottieri even compared this mechanism to that of certain criminal groups that acquire enormous wealth thanks to tenders and other non-transparent procedures, which involve favoritism even when they are not blatantly illegal.

86 The subject is linked to one that has become particularly topical, namely the need to reconcile the requirements of protecting the rule of law with the pursuit of foreign policy objectives, with reference to the sanctions imposed on Russian oligarchs in the aftermath of the Russian invasion of Ukraine: see on this subject Shackleton (2022).

87 It is the case of the lawsuit brought by journalist John Stossel against Meta for an allegedly libelous fact-checking of a Facebook post of his, where Meta responded that their fact-checking, that they present as a statement of true facts, was in fact legitimate as the expression of an opinion: cf. Stossel (2021).

88 Emphasis added (the translation from the Italian original is mine). In some ways, Mark Zuckerberg himself paradoxically corroborated this perspective, in a statement often quoted, namely ‘In a lot of ways Facebook is more like a government than a traditional company. We have this large community of people, and more than other technology companies we’re really setting policies’ (it is reported, among others, by Foer (2017)).

89 As argued by Lottieri (2022, 26, again in my translation; emphasis in the original):

Those who speak of a deep state intend to evoke precisely the corrupt relationship that links the political elites, the new and old protagonists of ­industry and finance, senior bureaucrats, the major media and the ­hegemonic intellectual groups.­ We do not therefore have the classic ‘regulatory capture’ that takes place when an interest ­group steers political decisions in its favour, but instead a mutual ­appropriation, so that it is not easy to understand, also by virtue of the clear ideological-cultural convergence, who is playing in the position of the ­dominant and who is playing in the position of ­the dominated.

Admittedly, a striking example of this ‘mutual appropriation’ appears to be what occurred in the control of Covid-19-related information, as emerged in the above-mentioned lawsuit by Missouri’s and Louisiana’s AGs (see above, footnote 66), as well as in other jurisdictions such as India (cf. Lyons 2021). Yet, if the conduct of the public officials were indeed an unlawful pressure, this would be by definition against the law; but to the extent that the platforms consented to this strong government push, the argument made here still appears valid, since it would be – in this case – their freely adopted policy. Cf. also Nelson (2021). Similar observations can be made with regard to what surfaces from the periodical transparency reports by Twitter (now X) on their Removal Requests: Accessed December 22, 2023 https://transparency.twitter.com/en/reports/removal-requests.html. Even more recently, a journalist report revealed the extremely broad forms of interference (or co-operation) between the Department of Homeland Security and the main social media platforms: Klippenstein and Fang (2022).

It is still worth pointing out that this ‘mutual appropriation’ is certainly not a new phenomenon, but one can already find traces of it in analyses predating the advent of the Internet. For instance, it is interesting to note how censorship, in order not to admit its existence, prefers to hide behind ‘institutions with completely different functions, such as publishing houses’, or to take on the guise of an ‘editor (of a book, a newspaper, or an anthology), of a reporter, publisher’s reader, etc’ (Kiš 1986, 43). This short essay contains acute considerations on the risks of invisible self-censorship caused by too much governmental censorship. Its reflections are echoed with reference to online speech by Snowden (2021), according to whom

‘[f]or fear of losing a job, or of losing an admission to school, or of losing the right to live in the country of your birth, or merely of social ostracism, many of today’s best minds in so-called free, democratic states have stopped trying to say what they think and feel and have fallen silent. That, or they adopt the party-line of whatever party they would like to be invited to – whatever party their livelihoods depend on. Such is the trickle-down effect of the institutional exploitation of the internet, of corporate algorithms that thrive on controversy and division: the degradation of the soul as a source of profit – and power’.

90 See among many Lao (2013); regarding Europe, Graef (2019). More recently, with regard to app stores, see Borgogno and Colangelo (2022).

91 With regard in particular to the relationship between competition law and freedom of expression, an important ‘economic speech’ case worth mentioning is Associated Press v. United States, 326 U.S. 1 (1945). https://supreme.justia.com/cases/federal/us/326/1/, cited by Alito in his dissent in Netchoice, LLC v. Paxton, discussed above. Here, the Supreme Court ruled that the provision in Associated Press statute prohibiting its members from delivering news (whether from the group or not) to publishers who were not members of the group was unlawful. The Court here clarified the boundaries of freedom of the press in the sense that ‘[f]reedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests’ (326 U.S. 20). See also one of the main arguments in support of the law at issue in the Tornillo case (an argument, however, rejected by the Supreme Court), namely (in the Court’s own reconstruction, 418 U.S. 251): ‘The First Amendment interest of the public in being informed is said to be in peril because the ‘marketplace of ideas’ is today a monopoly controlled by the owners of the market’. Also Day (2020) argues against the enforcement of antitrust law regarding non-commercial speech (although he is broadly in favour of a broad use of antitrust law to protect commercial speech, e.g., ‘expressive, political, and social speech’). On the (unsatisfactory, but because of its insufficient outreach) application of competition law to ’digital gatekeepers’, cf Lynskey (2017). Finally, on the subject see also Greene (2010) and Greene and Yao (2019).

92 It is worth noting that this consideration remains valid even if one supports the thesis – put forward for instance by Thobani 2021 – according to which at least the main platforms could find a private-contractual (and not only or not necessarily public-constitutional) limitation in their ‘editorial’ choices. It would derive from the fact of having, at least initially, presented themselves as open to all, without sufficient prior indications in the Terms and Conditions regarding their policies of restriction of any content. The thesis appears convincing, but it remains valid in a precisely private law context and does not affect the public law argument of the alleged limits to contractual freedom deriving from immanent and pre-eminent anti-discriminatory principles, which would apply even in the presence of extremely detailed and precise Terms and Conditions, potentially even overriding them. From a different perspective, other authors raised doubts that terms and conditions are actually contracts: cf Quarta (2021).

93 This is the well-known argument at the heart of von Hayek (1944).

94 Lottieri (2016).

95 The following analysis is based on Lindqvist (2015).

96 On this point similar ideas can be found in Mill ([1870] 1909, II.I.3): ‘The social arrangements of modern Europe commenced from a distribution of property which was the result, not of just partition, or acquisition by industry, but of conquest and violence: and notwithstanding what industry has been doing for many centuries to modify the work of force, the system still retains many and large traces of its origin’; similarly, Richard Epstein (1985), 346, wrote that ‘[m]uch of the current stores of wealth were acquired by improper means, and these imperfections necessarily infect the system as it now stands’ (both quoted in Duff (2005), 38, n 128).

97 Emphasis added.

98 It is impossible to summarise it here even in short. I will just recall, among the recent news on the subject, the judgment of the Court of Justice of the Eu (Grand Chamber) in the case Telenor Magyarország Zrt. / Nemzeti Média- és Hírközlési Hatóság Elnök, 15 September 2020, joint cases C-807/18 and C-39/19, where the Court examined some data plans whereby the traffic generated by certain apps would not count towards reaching the established data threshold, and found them incompatible with Eu law. The need to maintain a non-discriminatory access to digital technologies is also very clear in the framework of the Council of Europe, particularly in the Recommendation CM/Rec(2022)13 of the Committee of Ministers to member States on the impacts of digital technologies on freedom of expression (Adopted by the Committee of Ministers on 6 April 2022 at the 1431st meeting of the Ministers’ Deputies).

99 Some scholars (Bedi 2019) have even suggested a perspective really unsustainable from my perspective, according to which even online dating sites should be treated as public accommodations, and as such subjected to clear anti-discrimination obligations.

100 Particularly notable are the writings of Walter E. Block: among many, Block (1992; 1998; 2010); Block and Portillo (2012). To the contrary, Kline (2022).

101 This has been particularly prominent with regard to electoral law restrictions, particularly in the campaign finance area: in addition to the aforementioned Citizens United, v. McCutcheon v. Federal Election Commission, 572 U.S. 185 (2014). https://supreme.justia.com/cases/federal/us/572/185/, cf American Tradition Partnership, Inc. v. Bullock, 567 U.S. 516 (2012). https://supreme.justia.com/cases/federal/us/567/516/; Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011). https://supreme.justia.com/cases/federal/us/564/721/; Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). https://supreme.justia.com/cases/federal/us/551/449/. Alongside these, several cases have also strengthened safeguards of religious freedom, which is also protected by the First Amendment. For a critique of this approach by the Supreme Court in the context of the Internet, an approach that would allegedly amount to an ‘expansion of the First Amendment for the benefit of commercial actors’, see J.G. Francis and L.P. Francis (2021); also critically, see French (2022); Britton-Purdy (2018).

102 The constant evolution of the legislative formant is in contrast to the need invoked above at the outset to limit as far as possible the use of new laws to deal with these, albeit new, phenomena.

103 Cf. recently Psychogiopoulou and de la Sierra (2022).

104 Quoted in Keller (2019), that refers the story and quotes a selection of the most significant parts of Stinnett’s op-ed are quoted.

Additional information

Funding

This work was supported by Institut de recherches économiques et fiscales.