The intersection of technology governance and the First Amendment is a complex area that requires careful navigation by policymakers. A new guide, titled "First Amendment Tech Transparency Roadmap," aims to assist lawmakers in crafting legislation that mandates transparency in technology while respecting constitutional rights.
The guide addresses the concept of compelled speech, which occurs when the government requires individuals or entities to express a particular message. This form of speech is typically subject to strict scrutiny under the First Amendment, although some types, such as product disclosures, are held to a lower standard.
Transparency mandates fall into three categories with varying levels of First Amendment review:
1. Disclosures about regulated conduct involve providing information on compliance with regulatory requirements, like SEC filings. The Supreme Court views these as part of broader regulatory systems not primarily focused on speech, thus subjecting them to lenient review.
2. Factual and uncontroversial commercial disclosures pertain to commercial speech related solely to economic interests, such as advertising and product labels. These are reviewed under an intermediate standard unless they compel factual information about service terms, which receive even less stringent scrutiny.
3. Speech about speech involves transparency requirements that affect protected expression, particularly in tech policy concerning editorial decision-making by social media platforms and AI developers. Such mandates are likely subjected to strict scrutiny due to their potential burden on fully protected expression.
This roadmap seeks to provide guidance for effectively navigating the legal complexities surrounding transparency in technology governance.
