Journal of Free Speech Law: “Carriage and Removal Requirements for Internet Platforms: What Taamneh Tells Us,” by Daphne Keller
This just-published article is here; the Abstract:
The Supreme Court’s 2023 Twitter v. Taamneh ruling arrived at a moment of potentially great change in the laws governing Internet platforms. The ruling, including Justice Thomas’s factually dubious descriptions of platforms as passive and agnostic toward user content, will have major influence in two categories of future cases.
- Most obviously, Taamneh will affect cases in which plaintiffs seek to hold platforms liable for unlawful material posted by users.
- Less obviously, Taamneh is sure to affect “must-carry” claims or mandates for platforms to carry content against their will—including major cases on the Supreme Court’s 2023–24 docket about laws in Texas and Florida.
This piece explains how Taamneh may be invoked in both kinds of cases, and explores the strengths and limitations of parties’ likely arguments—in particular, arguments based on platforms’ putative passivity. It also examines important intersections between must-carry claims and claims seeking to hold platforms liable for unlawful user content. It argues that ignoring those connections may cause cases in one area of law to distort outcomes in the other. Taamneh itself may already have done just that.
And an excerpt from the Introduction:
Efforts to regulate platforms in the U.S. are often stymied by a fundamental disagreement. Some voters and leaders—mostly Democratic—want platforms to remove more content, including “lawful but awful” material like medical misinformation or hate speech. Some—mostly Republicans—want platforms to remove less content. These same competing impulses appear in litigation. Some plaintiffs sue to prevent platforms from removing content, and others to hold them liable for failing to do so. Court
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