First Amendment

The “techlash” of the past few years represents a moment of quasi-constitutional upheaval for the internet. The way a few private companies have been “governing” large parts of the digital world has suffered a crisis of legitimacy. Calls to find mechanisms to limit the arbitrary exercise of power online have gained new urgency. This task of “digital constitutionalism” is one of the great projects of the coming decades. It is especially pressing in the context of content moderation – platforms’ practice of designing and enforcing rules for what they allow to be posted on their services.

This essay closely examines the effect on free-expression rights when platforms such as Facebook or YouTube silence their users’ speech. The first part describes the often messy blend of government and private power behind many content removals, and discusses how the combination undermines users’ rights to challenge state action. The second part explores the legal minefield for users—or potentially, legislators—claiming a right to speak on major platforms.

The ongoing publicity tour by former senior White House staffer Omarosa Manigault-Newman, once designated as one of the “nastiest TV villains of all time,” is the culmination of the questionable hiring choices made during the early days of the Trump White House.

President Trump’s alleged blocking of members of the public on Twitter on what appear to be viewpoint-based considerations, preventing them from reading his tweets and responding to them, raises serious constitutional issues.