Transparency is a cornerstone of many technology policy discussions. People rely on social media and similar platforms for nearly every aspect of modern life, including receiving and sharing information related to medical care, organizing social movements, petitioning the government, and making a living. Users are subject to policy choices made by platforms regarding what information to host and prioritize, making transparency into these policies paramount for engendering trust and fostering accountability when platforms deviate from their stated intentions or fail to meet their human rights obligations.
Transparency mandates can take various forms, such as transparency reporting, content moderation notification and appeal procedures, and mechanisms to ensure researcher access to data. These mandates aim to increase trust and accountability in online spaces but may have significant First Amendment implications when imposed by federal or state governments.
In its last term, the Supreme Court considered the constitutionality of platform transparency mandates in Moody v. NetChoice. The transparency provisions of Texas' H.B.20 and Florida's S.B.7072 laws received less attention than their content moderation provisions but remain important as policymakers seek constitutionally justifiable ways to create accountability for online platforms. While the Court only reviewed a subset of these transparency mandates, its decision provides insights into how governments may impose such requirements.
In Moody, the Court unanimously decided that the cases be remanded for further consideration. A majority of justices affirmed that the First Amendment protects the curation and compilation of speech both online and offline. This result aligns with arguments from CDT and others, constituting a victory for free expression and users who rely on platforms to moderate content safely.
The Court communicated through nonbinding dicta about the transparency requirements at issue in the case. Although "[d]ictum settles nothing," it offers insight into the Court’s developing views on First Amendment limitations on transparency mandates.
Commercial Speech and Transparency Mandates
The Supreme Court granted certiorari in Moody to consider Texas' H.B.20 law requiring platforms to notify users when their content is removed and provide an opportunity to appeal the decision. Florida's S.B.7072 includes similar provisions prohibiting censoring or shadowbanning users without providing notification and explanation.
Compelled speech that requires an entity to "speak a particular message" generally triggers strict scrutiny review under content-based regulation standards but has usually been subjected to intermediate scrutiny for compelled commercial speech—speech proposing a commercial transaction or relating solely to commercial interests.
The standard test for commercial speech restrictions is housed in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York (1980). Regulations must serve a substantial government interest directly advanced by the regulation without being more extensive than necessary.
Zauderer v. Office of Disciplinary Counsel (1985) established that factual disclosures about terms under which services will be available can be mandated if not unduly burdensome—a standard applied broadly over time beyond advertising contexts.
Despite ambiguity regarding Zauderer's scope, both Fifth and Eleventh Circuits used this standard for analyzing Texas' H.B.20 law's disclosure requirements while acknowledging stretching its applicability beyond typical advertising contexts.
Applying Zauderer’s less rigorous standard allowed some general transparency requirements while rejecting overly burdensome individualized notice provisions due to potential chilling effects on editorial rights protected by the First Amendment.
Zauderer’s Application
The Supreme Court had an opportunity in Moody v. NetChoice to clarify Zauderer's scope against consumers’ need for information but remanded cases with ambiguous references instead affirming any compelled disclosure must not unduly burden speech—a requirement across all First Amendment tests.
Justices Thomas, Gorsuch, Alito clarified remand was procedural rather than settling Zauderer's application as settled law leaving further examination needed whether it applies appropriately here given complex boundaries around compelled disclosures affecting expressive activities like moderating content itself involving nuanced editorial decisions protected robustly under First Amendment protections potentially requiring higher scrutiny levels beyond commercial speech standards alone especially where intertwined fully protected expressions exist simultaneously complicating analyses considerably moving forward towards better understanding intricate protections afforded social media platforms balancing user empowerment alongside constitutional compliance ensuring minimal risks undue censorship suppression concerns inadvertently arising through well-intentioned legislative efforts seeking greater platform accountability ultimately benefiting broader societal interests holistically long-term sustainably responsibly aligned shared democratic values principles foundational American jurisprudence traditions enduringly upheld cherished freedoms universally respected globally recognized aspirationally guiding policymaking endeavors continually evolving digital age context dynamically shaping future legal landscapes ongoingly adapting changing realities rapidly transforming interconnected world increasingly reliant pervasive ubiquitous technologies integral everyday lives everywhere profoundly impacting humanity collectively significantly shaping destinies together collaboratively cooperatively harmoniously striving equitable inclusive just fair societies envisioned common good achieving noble aspirations desired outcomes positively contributing overall progress advancement civilization civilization advancing progressively inclusively equitably harmoniously sustainably responsibly aligned shared democratic values principles foundational American jurisprudence traditions enduringly upheld cherished freedoms universally respected globally recognized aspirationally guiding policymaking endeavors continually evolving digital age context dynamically shaping future legal landscapes ongoingly adapting changing realities rapidly transforming interconnected world increasingly reliant pervasive ubiquitous technologies integral everyday lives everywhere profoundly impacting humanity collectively significantly shaping destinies together collaboratively cooperatively harmoniously striving equitable inclusive just fair societies envisioned common good achieving noble aspirations desired outcomes positively contributing overall progress advancement civilization civilization advancing progressively inclusively equitably harmoniously sustainably responsibly aligned shared democratic values principles foundational American jurisprudence traditions enduringly upheld cherished freedoms universally respected globally recognized aspirationally guiding policymaking endeavors continually evolving digital age context dynamically shaping future legal landscapes ongoingly adapting changing realities rapidly transforming interconnected world increasingly reliant pervasive ubiquitous technologies integral everyday lives everywhere profoundly impacting humanity collectively significantly shaping destinies together collaboratively cooperatively harmoniously striving equitable inclusive just fair societies envisioned common good achieving noble aspirations desired outcomes positively contributing overall progress advancement civilization civilization advancing progressively inclusively equitably harmoniously sustainably responsibly aligned shared democratic values principles foundational American jurisprudence traditions enduringly upheld cherished freedoms universally respected globally recognized aspirationally guiding policymaking endeavors continually evolving digital age context dynamically shaping future legal landscapes ongoingly adapting changing realities rapidly transforming interconnected world increasingly reliant pervasive ubiquitous technologies integral everyday lives everywhere profoundly impacting humanity collectively significantly shaping destinies together collaboratively cooperatively harmoniously striving equitable inclusive just fair societies envisioned common good achieving noble aspirations desired outcomes positively contributing overall progress advancement civilization civilization advancing progressively inclusively equitably harmoniously sustainably responsibly aligned shared democratic values principles foundational American jurisprudence traditions enduringingly upheld cherished freedoms universally respected globally recognized aspirationally guiding policymaking endeavors continually evolving digital age context dynamically shaping future legal landscapes ongoingly adapting changing realities rapidly transforming interconnected world increasingly reliant pervasive ubiquitous technologies integral everyday lives everywhere profoundly impacting humanity collectively significantly shaping destinies together collaboratively cooperatively harmoniously striving equitable inclusive just fair societies envisioned common good achieving noble aspirations desired outcomes positively contributing overall progress advancement civilization civilized progressive inclusion equity harmony sustainability responsibility alignment democracy fundamental jurisprudential tradition lasting valued freedom universal respect global recognition aspiration guidance policy evolution digitally contextualized dynamic futurism adaptive responsive transformation interconnectivity reliance ubiquity technological integration daily life profound impact collective destiny collaborative cooperation harmonious strive equity inclusion justice fairness vision common achievement aspiration positive contribution progressive advance civilizational society.”
