The Censorship Constraint and Rulemaker State Action: Are Section 230's Immunity Provisions Unconstitutional Content-Based Regulations?
Even casual watchers of T.V. crime dramas understand the Fourth Amendment’s exclusionary rule. Under this rule, evidence obtained by the police in a search of a criminal suspect’s premises that exceeds the scope of a judicial warrant is almost always inadmissible in the suspect’s criminal trial. The rule is designed to deter unreasonable governmental intrusion into private affairs and applies without regard for the suspect’s guilt or innocence. This Article proposes that the First Amendment includes an analogous rule against governmental censorship. Under this rule, content-based speech regulations exceed the legislature’s speech rulemaking warrant and are almost always invalid. This rule is designed to deter governmental distortion of public discourse and applies without regard for whether the speech of the party challenging the regulation has been abridged in a specific instance. This Article further proposes that since the constitutional focus in a facial challenge to a content-based regulation is impermissible governmental rulemaking, rather than the speech acts of the party challenging the regulation, the Constitution’s state action requirement is met inherently in such a challenge by the rulemaking acts of the legislature and any party whose speech may reasonably be abridged by such a regulation has Article III standing to challenge it. Finally, this Article proposes that the speech blocking immunity provisions of Section 230 of the Communications Decency Act are content-based regulations. As such, Congress is the relevant state actor in any facial challenge to these provisions, any party whose speech may reasonably be abridged by these provisions has Article III standing to challenge them, and these provisions are invalid for exceeding Congress’s speech rulemaking warrant despite their noncompulsory administration by private operators of social media platforms.
Scot A. Reader, The Censorship Constraint and Rulemaker State Action: Are Section 230's Immunity Provisions Unconstitutional Content-Based Regulations?, 125 W. Va. L. Rev. 591 (2023).