NetChoice, Regulatory Competition, and the Real Battle Behind Social Media Regulations
Tao Huang | 27 Vand. J. Ent. & Tech. L. 157 (2025)
Regulating online social media platforms has been a fiercely debated issue for years. The NetChoice case decided by the US Supreme Court 2023 Term arises from a circuit split regarding Florida and Texas laws that regulate social media content moderation. Most discussions on regulation of social media content moderation have focused on whether social media platforms are speakers (editors) or carriers (conduits), and whether their moderation practice constitutes editorial judgment (i.e., protected speech). This Article argues that this framing of the debate ignores another more important role of social media platforms—as regulators. Platforms, when they enact and enforce their content rules, are regulating the speech of users. When the government prescribes how platforms should moderate content, it is using its public regulatory power to preempt the platforms’ private regulatory power.
In the social media context, regulatory competition and preemption among state or national governments are common. Different powers are trying to shape the platforms according to their own normative visions of free speech. However, there exist multiple and competing visions, the two most prominent of which are the US vision and the European Union vision. Hence, the real concern of the Texas and Florida laws is not that they are content-based, but that they have imposed one particular vision of free speech values upon the global “public square,” a place that is characterized by legal and cultural pluralism. Accommodating such value heterogeneity and conflict is not easy. This Article proposes three possible ways forward: (1) a judicial approach that embraces open-ended balancing instead of strict categoricalism; (2) an administrative approach that nudges procedural governance by platforms and democratic participation by users; and (3) a technological approach that aims to decentralize the structure of social media.