Examining Internet Platform Carriage and Removal Requirements through Taamneh: Insights from Daphne Keller

This just-published article is here; the Abstract:

The Supreme Court’s 2023 Twitter v. Taamneh ruling 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. 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. Courts, unlike Congress, may soon be forced to resolve the tensions between these competing imperatives. Their decisions will almost certainly be shaped by a 2023 Supreme Court ruling, Twitter v. Taamneh.

Legal disputes like the one in Taamneh are relatively common in litigation. But academic and public policy discussion tends not to focus on these issues about the merits of plaintiffs’ underlying claims. Instead, academics and policymakers often focus on the other two major sources of law governing platforms and speech: immunity statutes and the Constitution. It is clear that the First Amendment sets real limits on the laws that govern platforms. But it is less clear exactly what those limits are.

The Supreme Court’s handling of claims like the one in Taamneh can shape both platforms’ editorial policies and users’ opportunities to speak. As a result, free expression considerations can in turn play a structuring role when courts interpret the elements of such tort claims.

The post Journal of Free Speech Law: “Carriage and Removal Requirements for Internet Platforms: What Taamneh Tells Us,” by Daphne Keller appeared first on Reason.com.