Let the Sunshine In: Crafting Constitutional Transparency Regulations for Content Moderation

In response to public concern about the impact of social media, legislators in some U.S. states have developed laws to regulate the process of content moderation. Many include mandatory transparency and disclosure requirements, some of which courts have already deemed an unconstitutional infringement on social media platforms’ right to free expression. This article explores the parameters for crafting constitutional social media transparency regulations using existing U.S. media policy and insights from recent legal challenges. The resulting analysis identifies content neutral transparency requirements that mandate the disclosure of purely factual, non-controversial information as those most likely to withstand judicial scrutiny.

Specifically, the article advocates for laws that require social media companies to publish acceptable use policies and produce transparency reports using aggregate data. This approach is best suited to increasing transparency and minimizing consumer deception while preventing government overreach.