Technology Archives – Southern California Law Review

Regulating Robotaxis

April 2026April 2026Bryant Walker Smith* & Matthew T. Wansley†

In several sunbelt cities, commercial robotaxi service has arrived. The leading robotaxi company is providing over 400,000 trips per week. The industry claims that robotaxis will save lives and provide convenient and affordable mobility. Critics counter that they will increase congestion, undermine transit, and subject the public to ubiquitous surveillance. We argue that the social impact of robotaxis depends on how they are regulated. We emphasize two points missing from the debate. First, some of the benefits of robotaxis may be political rather than technological—some longstanding public policy goals may become viable in a robotaxi world. Second, letting one private company dominate the transportation system risks monopoly abuse—and regulators can act now to prevent it.

In this Article, we offer a plan to regulate robotaxis. Carefully crafted externality regulation can address pollution, congestion, wear-and-tear on infrastructure, and privacy risks while minimizing distortions in choices between travel modes. Regulators can promote competition by permitting open entry, banning lock-in contracts, and enabling one-stop access to competing networks. And they can protect riders even if competition fails by mandating that fares be transparent and rider-neutral and requiring that robotaxi companies maintain a fleet sufficient for emergencies. Policymakers should take advantage of robotaxi deployment to reimagine the transportation system—liberate land from the tyranny of parking, refocus mass transit investments on high-throughput routes, and expand mobility for people with low incomes and people with disabilities.

Introduction

This Article is about “robotaxis”—motor vehicles without human drivers that are available on demand to paying customers. For nearly a century, the personal motor vehicle has dominated the American conception of travel. Given this, it is easy to forget that we humans have always transported ourselves, our goods, and our messages using a mix of travel modes. Even motorists, after all, become pedestrians after they park. And since the average household vehicle has an occupancy of only 1.5 persons,¹ it is also easy to overlook that many of these other modes were and are shared services—carriages, steamboats, trains, streetcars, buses, and taxis—in which the user is not the operator.²

Today, however, “automated vehicle” has become nearly synonymous with “robotaxi.” This is largely because of automated driving’s market leader in the United States, Waymo, as well as its competitors in China. Waymo currently deploys its automated vehicles only in fleets. In Atlanta, Austin, San Francisco, Phoenix, Los Angeles, and Miami, anyone with a smartphone can hail a ride in a robotaxi—and the company promises more cities are coming soon.³ In parts of these cities, Waymo’s vehicles are ubiquitous: recently, the Waymo carrying one of us was unable to change lanes because the Waymo next to it refused to let it in—and there were even more Waymos ahead and behind.

Will the robotaxi come to supplant the personal motor vehicle as the twenty-first century’s defining local travel mode? Maybe.

Automated driving has potential advantages. Automated driving might be safer than conventional driving.⁴ People who are unable to drive may be able to ride. Passengers in automated vehicles could use their time more productively than drivers of conventional vehicles.⁵ But these potential advantages apply when comparing many kinds of automated vehicles with conventional vehicles. When comparing robotaxis with personal automated vehicles,⁶ they are less relevant. The case for robotaxis isn’t just that they are automated.

Should the robotaxi eclipse the personal car’s dominance? We answer this question with a qualified yes. There are compelling reasons to welcome robotaxis.

First, robotaxis could improve road safety even more than personal automated vehicles. This is because robotaxi fleets are likely to be and remain significantly newer than motor vehicles generally. The mean age of vehicles in the United States today is over twelve years—and growing.⁷ Simply shifting trips to newer conventional vehicles could have a significant safety benefit.⁸ Shifting them to automated vehicles that are carefully maintained and regularly replaced could have an even greater benefit.

Second, robotaxis could improve accessibility—at least in some senses of the term. They could compete on time and cost, for both riders and system operators, with suburban and rural mass transit that has low ridership and long headways. They could better serve some people who are unable to drive because of income⁹ or disability.¹⁰ They might be more reliable than an old car in frequent need of repair.

Third, careful integration of robotaxis might unlock smarter uses of streets and city centers. Robotaxis might obviate the demand for much on-street parking, and that space might in turn be used not only for the much greater queuing zones that pickup and drop-off would require but also for sidewalks, bicycle lanes, and parklets. Robotaxis might also reduce demand for much off-street parking, and that space might in turn be used not only for robotaxi queues and depots but also for more parks, homes, and businesses.

Nonetheless, there are also reasons for caution—and therefore for careful and proactive regulation.

First, robotaxis are likely to compete not only with personal automobiles but also with walking, biking, and communal transit. The history of Uber and Lyft—which are often called Transportation Network Companies (“TNCs”)—is illustrative. As we discuss below, one of the biggest policy challenges is approaching automated driving in a way that appropriately reflects both any advantages it ultimately offers vis-à-vis conventional driving and any disadvantages it presents vis-à-vis more active and communal modes of travel.

Second, reducing the costs of travel, in money and time, may encourage more sprawl and more automotive travel. These could, in turn, create even more local, regional, and global pollution. It is important to remember that there is no such thing as a “zero-emission vehicle.” Even electric vehicles need to get their power from somewhere. And, although it is true that electric vehicles with no tailpipe have no “tailpipe emissions,” they are sources of other pollution. Tires, for example, wear out through contact with the road surface, and this wear is a major source of microplastics.¹¹

Third, these and other externalities are likely to be borne by people other than robotaxi developers, operators, and users. A disabled person who needs assistance boarding a conventional vehicle could be harmed if private robotaxi service replaces mass transit that is subject to more stringent accessibility requirements. People around the world could see their food become more expensive if even greater sprawl further reduces arable land. People who are conducting their lives in public may be subject to greater public and private surveillance if automated driving companies use or share their sensor data for purposes other than driving.¹² Secluded door-to-door trips may also reduce the random social interactions that are important to individual and community vitality.

What we have said about robotaxis so far should be familiar. In this Article, we emphasize two points that are new—one an underappreciated reason to welcome robotaxis, the other an underappreciated reason for concern.

Robotaxis, at least at this moment, could be a political expedient for implementing policies that are otherwise viewed as politically challenging.¹³ The problems of America’s reliance on the personal motor vehicle are well-known: crash deaths and injuries, pollution, and sprawl, among others. Policy solutions are also well-known: consistent automated enforcement of safety-relevant traffic rules, insurance minimums that reflect the true cost of injury, taxes on fueling and charging that capture the externalities of energy consumption, parking rates that account for the value of the land used, and so forth. But implementing these policies for conventional vehicles, drivers, and driving may not sit well with the ninety-two percent of American households that have a motor vehicle.¹⁴

In contrast, automated driving is not yet politically entrenched.¹⁵ Automated vehicles have so far been deployed only in fleets, which facilitates regulation. Fleet owners are better able to comply with complex rules than individual vehicle owners, and regulators may face less (or at least a different kind of) political resistance when they impose burdens on fleet owners than when they impose similar burdens on tens of millions of individual vehicle owners. This partly explains why the U.S. Department of Transportation and states such as California have demanded much more from automated driving developers than they have from ordinary noncommercial vehicle owners and drivers, such as expanded incident reporting at the federal and state levels and higher insurance minimums at the state level.¹⁶

But this moment is fleeting: if robotaxis and automated driving features become more widespread and popular, imposing new requirements will become correspondingly more difficult. This is a lesson that many cities still remember from the early and ultimately successful efforts of Uber to change the facts on the ground before governments could enforce existing rules or devise new ones.¹⁷

And that observation brings us to our new reason for concern. If robotaxis take off, a small number of corporations may come to control large parts of the transportation system. Robotaxi companies benefit from economies of scale and network effects, so the robotaxi market may be highly concentrated. That’s what we’ve seen in the TNC market.¹⁸ In most U.S. cities, Uber and Lyft have formed a duopoly.¹⁹ They cannot abuse their market power too much because they face competition from other travel modes. If they jack up their fares, many travelers can take a taxi or transit or just drive their own vehicle. But if robotaxis put other modes of transportation out of business, the risk of monopoly abuse will rise. In the absence of regulation, these companies’ interests may not be aligned with the public good.

In this Article, we propose a plan to regulate robotaxis that takes advantage of the opportunity they present to redesign mobility while protecting the public from concentrated private power.

There is a robust literature on the law of automated driving, but most of it focuses on tort liability²⁰ and safety regulation.²¹ There has been little discussion of the other regulatory issues that policymakers must confront.²² But some states are already acting. California has developed and implemented robotaxi-specific regulations, and Arizona has applied its pre-existing ridehailing regulations to robotaxis.²³ We consider both of these approaches to illuminate the choices these states have made and to propose reforms relevant to our analysis.

Our argument proceeds in four Parts.

In Part I, we explain what we know about robotaxis so far—the technologies, the economics, the prospects for wider adoption, and some of the layers of regulation that already apply to robotaxi service.

In Part II, we discuss externality regulation. The deployment of robotaxis could contribute to emissions, wear-and-tear on infrastructure, congestion, and privacy loss. But robotaxis could also reduce the social costs of transportation relative to personal motor vehicles. And it may be easier—both practically and politically—to regulate a few robotaxi companies than to regulate many drivers. Policymakers should take advantage of the ease of regulating robotaxis but take care not to create distortions that push riders to other modes of travel. We consider an electric vehicle mandate, a vehicle miles traveled (“VMT”) tax, congestion pricing, and restrictions on the use of robotaxi sensor data.

In Part III, we turn to rider protection. We start with the premise that the best way to protect riders is to encourage competition. If robotaxi companies compete in a carefully regulated market, riders could get lower fares, better service, and the fruits of more innovation. We also emphasize a less widely appreciated benefit of competition in robotaxis: more independent development of automated driving technologies could ultimately lead to the integration of redundant systems that are safer than systems developed by just one company. We argue that policymakers should promote competition by permitting open entry, banning lock-in contracts, and enabling one-stop access to competing networks.

We recognize, though, that even these policies may not prevent one company from dominating the market because the economies of scale and network effects favor concentration. And that dominance will take on additional social importance if robotaxis start to replace other modes of travel. We therefore propose a different set of policies to preserve rider autonomy even in a concentrated market. Regulators should mandate that robotaxi fares be transparent and rider-neutral. They should also require that, at some point, robotaxi companies individually or collectively are able to serve transportation demand in an emergency. We hope that by ensuring the public will be protected even in a concentrated robotaxi market policymakers can reduce the need for—and the attendant individual and social costs of—personal motor vehicle ownership.

Wide adoption of robotaxis could create the opportunity to redesign the transportation system. In Part IV, we offer some tentative suggestions on what this might look like. We envision a world where cities can reclaim space currently used for parking, giving more space to cyclists and pedestrians and liberating land for housing or other development. Cities can also refocus their investments in mass transit, replacing low-throughput routes and spending scarce dollars on high-throughput routes. The deployment of robotaxis should also create the opportunity to expand access. We think that carefully crafted subsidies can improve mobility for people with low incomes. And we explain how the National Highway Traffic Safety Administration (“NHTSA”) can use its authority over vehicle safety standards to encourage the development of automated vehicles that are accessible for people with disabilities. But we take a more skeptical approach to place-based subsidies. We don’t want robotaxis to usher in a new era of sprawl.

I. Robotaxis Today

Robotaxis are moving from R&D projects to commercial service. In this Part, we explain what is currently known about robotaxis. First, we introduce some of the technologies that make robotaxis possible. Second, we describe

the structure of the robotaxi market and the economics of operating a robotaxi service. Third, we consider the prospects for wider adoption. Fourth, we explain some of the layers of regulation that already apply to robotaxis.

A. Technologies

Robotaxis are automated vehicles deployed for commercial passenger service.²⁴ A robotaxi is equipped with an automated driving system (“ADS”)—a combination of sensors, computers, and software that can together perform the dynamic driving task.²⁵ To oversimplify: every robotaxi in a company’s fleet is equipped with a copy of the same ADS—the same kind of sensors, the same kind of computers, and the same software.²⁶ So in a sense, every robotaxi deployed by one company has the same driver.²⁷

Each ADS has a unique operational design domain (“ODD”)—a set of specific environmental, geographic, and roadway conditions in which it is intended to operate.²⁸ Most ADSs on the road in the United States today function only in geofenced regions in a small number of warm-weather cities, though Chinese cities such as Beijing have both snow and robotaxis.²⁹ Even within those geofenced regions, ADSs may be restricted from driving

on specific roads. Waymo’s robotaxis, for example, aren’t taking many paying passengers on freeways.³⁰

Unusual traffic situations—referred to as edge or corner cases—continue to challenge ADSs.³¹ Robotaxis have fallen into a construction pit,³² gotten stuck in a flooded road,³³ parked in prohibited areas,³⁴ and made an illegal U-turn at a sobriety checkpoint.³⁵

The companies developing automated driving technologies are designing their systems in different ways. Some companies use a suite of sensors that includes lidar, radar, and cameras.³⁶ Others purport to rely on cameras alone.³⁷ Some companies create high-definition digital maps to help their systems understand the data they receive from the vehicle’s sensors.³⁸ Others have designed their system to learn about their environment largely from the data they receive in real time with only a comparatively basic map.³⁹

Companies also differ in how they structure their software. Some ADSs are modular, with different subsystems performing discrete tasks. For example, a modular ADS might include subsystems for localization, perception, behavior prediction, planning, and actuation.⁴⁰ Each of these subsystems may or may not incorporate machine learning. Other ADSs, by contrast, have a “pure end-to-end” architecture. In these systems, a machine learning model takes in sensor data and puts out actuation commands.⁴¹ Some companies are combining these approaches.⁴² Many deployments are likely to involve bounded flexibility—like putting a soft duffle bag inside a hardshell suitcase.

An ADS can create a digital record of its driving.⁴³ This record can show the people, animals, and objects detected by the ADS’s sensors and the commands sent by its software, and the movement of nearby people and objects.⁴⁴ Most robotaxis are also equipped with interior and exterior video cameras, which can record both passengers and the vehicle’s surroundings.⁴⁵ An ADS generates and processes an immense amount of data, and retaining all these data in their raw form may be impractical. Companies generally decide which data to collect, transmit, and retain. In the absence of a legal requirement, they may make pragmatic or strategic decisions about data retention, especially as they scale their operations.

The data that an ADS collects can feed back into development. When a robotaxi encounters a scenario of concern, the ADS can be tweaked to handle it better next time.⁴⁶ The developer can test this update in computer simulations, on closed-course tracks, and then on public roads.⁴⁷ Progress isn’t always linear.⁴⁸ Tweaks can introduce new errors.⁴⁹ But over time, a system’s performance should improve, and its ODD should expand.

In the 2010s, the industry was focused on R&D.⁵⁰ When companies tested automated vehicles on public roads, they kept a “safety driver” behind the wheel.⁵¹ Near the end of the decade, some companies moved to testing without these safety drivers.⁵² And in the past few years, some companies have started to operate commercial services.⁵³

These deployments generally rely on support from human agents located in remote centers.⁵⁴ Developers take a variety of approaches to remote facilitation, ranging from mere remote assistance to actual remote driving.⁵⁵ Remote agents might communicate with passengers, suggest a path for the ADS when the robotaxi gets stuck, call for assistance in an emergency, or interact with first responders.⁵⁶ In practice, remote facilitation is frequent. For example, in late 2023, one company’s robotaxis required assistance every four to five miles.⁵⁷

Automated driving has the potential to improve road safety. Waymo’s researchers published a study in a peer-reviewed journal finding that its vehicles are involved in significantly fewer crashes that involve an injury or an airbag deployment than conventional vehicles in comparable ODDs.⁵⁸ The study is based on publicly available crash reports that Waymo submitted to NHTSA.⁵⁹ Although the data are self-reported and the conventional vehicle crash rate baselines are contestable, we don’t doubt the direction of the results with respect to routine driving.

An earlier study by independent researchers found that Waymo’s crash rate in San Francisco was comparable to the reported crash rates of TNC drivers in the city.⁶⁰ This is also an encouraging result because the crashes involving automated vehicles had to be reported by law while crashes involving only conventional vehicles are often not reported.⁶¹ It is too early to draw conclusions about fatal crashes, though. In the United States, there are about 1.33 fatal collisions for about every 100 million vehicle miles traveled.⁶² Waymo has only traveled about 200 million miles.⁶³

B. Economics

We are beginning to see the structure of the nascent automated driving market generally and the nascent robotaxi market specifically. And we can make educated guesses about the basic economics of a robotaxi service.

Market Structure

There are companies developing automated driving technologies in many parts of the world. These companies include automakers such as Mercedes, Tesla, and Volkswagen; automotive suppliers such as Bosch, Mobileye, and Qualcomm; informational technology companies such as Alphabet, Amazon, Baidu, and Huawei; and a variety of automated-driving-specific firms such as May Mobility, Pony.AI, Wayve, and WeRide. It is important not to discount efforts abroad, particularly from companies in

China that are active at home and could soon be competing with U.S. companies in other parts of the world.⁶⁴

“[A]utomated driving encompasses a wide range of technologies, applications of those technologies, business models for those applications, and participants in those business models.”⁶⁵ Robotaxis are just one application. Some companies are developing ADSs for personal motor vehicles or for use in low-speed shuttles. Other companies are aiming to automate trucking, delivery, mining, farming, and military vehicles.

We focus on three U.S.-based companies—Waymo, Zoox, and Tesla—that are developing robotaxis and are backed by three of the most valuable corporations in the world. Waymo is a subsidiary of Alphabet, the parent company of Google. Zoox is a subsidiary of Amazon. Tesla we expect you’ve heard of.

For now, Waymo dominates the robotaxi industry. It is providing commercial robotaxi service in Atlanta, Austin, Los Angeles, Phoenix, San Francisco, and Miami (as of February 2026).⁶⁶ And it is planning to provide commercial service in other major U.S. metropolitan areas.⁶⁷ Waymo’s robotaxis are already competing with Uber and Lyft. In late 2025, Waymo had a twenty-two percent share of the TNC market for trips with an origin and destination within the city limits of San Francisco.⁶⁸

Zoox is testing robotaxis in San Francisco, Las Vegas, and Miami.⁶⁹ The company recently started a commercial service in Las Vegas.⁷⁰

Tesla claims it is developing robotaxis.⁷¹ But all Tesla has produced is a system that it dizzyingly calls “Full Self-Driving (Supervised),”⁷² which needs a driver to keep their hands on the wheel and their eyes on the road at all times.⁷³ It is an ADS in aspiration but not in function.⁷⁴ In communications with regulators, Tesla continues to take the position that “Full Self-Driving” is just a driver assistance system.⁷⁵ In May 2025, Tesla announced the “launch” of a “robotaxi” service in Austin, Texas.⁷⁶ But each of the vehicles generally has a Tesla employee who is seated in the driver’s seat or passenger seat, monitoring the roadway and able to intervene.⁷⁷

It is important to recognize that, although each of these companies has primarily emphasized robotaxi services, their underlying technologies could be adapted for a variety of other applications, including motor vehicles that are exclusively used by their owners.

The robotaxi companies are taking different approaches to vertical integration. Each company is developing its own ADS software. But they aren’t all building vehicles. Waymo has purchased its base vehicles from third parties—Chrysler minivans, Jaguar SUVs, Zeekr minivans, and Hyundai SUVs—and then modified them extensively in its own facilities.⁷⁸ Zoox built its own distinctive, bidirectional vehicle in which passengers face each other.⁷⁹ Tesla has unveiled a more conventionally designed prototype called the Cybercab, but in Austin it uses slightly modified versions of its production vehicles.⁸⁰

The companies are also experimenting with different models for service delivery.⁸¹ In Los Angeles, San Francisco, and Miami, Waymo’s robotaxis can be hailed only on the Waymo app.⁸² In Phoenix, they can be hailed on the Waymo app or the Uber app.⁸³ And in Atlanta and Austin, they can be hailed only on the Uber app.⁸⁴ In those cities, Uber manages “vehicle cleaning, repair, and other general depot operations” while Waymo manages roadside assistance.⁸⁵ Waymo has also suggested it might license its ADS to third parties.⁸⁶

Tesla has floated the idea of selling automated vehicles to individuals who would then make them available as robotaxis on a network managed by Tesla.⁸⁷ (If those vehicles were as automated as Tesla has promised, then those individuals could presumably make them available on other networks as well.) This business model has some precedent. Uber lets personal motor vehicle owners use their vehicles to provide rides to passengers.⁸⁸ Turo lets personal motor vehicle owners rent their vehicles to drivers.⁸⁹ And Zipcar lets members have short-term use of fleet vehicles.⁹⁰

A startup recently announced that it would sell automated vehicles to individuals⁹¹—though of course it is not the first company to make this claim.⁹²

Cost Structure

The most important cost of operating a robotaxi service is the fixed, upfront cost of developing a safe and functional ADS. Each of the major robotaxi companies has already spent billions on engineering and testing over the last decade.⁹³ As an ADS stabilizes, engineering costs may decline. But a mature ADS will still need to be updated and refined.⁹⁴ The built environment and road user behavior will continue to change, and robotaxis will continue to encounter novel edge cases.

The variable costs of a robotaxi service can be divided into market, vehicle, and mile costs. For each new market a company enters, it must map the new territory, ensure sufficient remote assistance capacity, and arrange facilities for storing, charging, cleaning, and maintaining its vehicles.⁹⁵ For each new vehicle it assembles, it needs to buy the vehicle platform, the sensors, and the computers. For each new mile its robotaxis drive, it spends more on remote labor, fuel or electricity, cleaning, maintenance, and (indirectly) insurance.

Compared to traditional TNCs, one potential cost advantage of a robotaxi is labor. Much of the cost of an Uber ride is driver pay.⁹⁶ Taking the driver out of a taxi could make transportation radically cheaper. But robotaxis will compete against Uber and Lyft drivers who, at least in the United States, might earn less than minimum wage to drive and maintain rather ordinary vehicles (and, notably, to load and unload luggage that their customers may not want or be able to lift).⁹⁷

So, for now, this labor cost saving is hypothetical.⁹⁸ The robotaxi companies need humans to help with charging, cleaning, and maintenance. And they rely critically on humans who provide remote assistance to their vehicles, to their passengers, or to law enforcement—and, occasionally, to physically retrieve vehicles when they get stuck.⁹⁹ As of November 2023, one robotaxi company was employing 1.5 operations workers per vehicle.¹⁰⁰

One cost disadvantage of a robotaxi is the robotaxi itself: the vehicle platform, its sensors, and its computers. Waymo’s co-CEO has said that the equipment on its robotaxis can cost as much as $100,000.¹⁰¹ But Baidu, one of Waymo’s Chinese competitors has said that its robotaxis cost less than

$30,000 to manufacture—including both the vehicle platform and the ADS.¹⁰²

Another cost disadvantage is real estate. A robotaxi company internalizes the cost of its vehicles driving to and from its depots and service facilities, so it may want to locate them close to the center of travel demand. That’s usually a place where land isn’t cheap. In contrast, a traditional TNC’s drivers or vehicle owners bear these costs—including when they involve significant commutes at the beginning and end of a workday.

In theory, robotaxis can benefit from powerful economies of scale. Once an ADS is acceptably safe and functional, it can be deployed in similar ODDs in metropolitan areas around the country with some adaptations for local driving conditions. However, the significant costs of standing up a new market—the depots, service facilities, and local coordination—may limit early deployments to metropolitan areas with large populations.¹⁰³

The path to profitability will require changes to the cost structure. The cost of components—sensors, computers, and vehicle hardware—needs to fall. Waymo already is moving to replace its Jaguars with Zeekrs.¹⁰⁴ The ratio of operations staff to revenue-generating vehicles needs to fall too. That will mean improving the ADS’s performance to reduce the frequency of incidents where remote assistants need to intervene. And it will likely mean automating parts of robotaxi servicing—charging, cleaning, and maintenance.¹⁰⁵ How much costs can fall is an open question.

Deployment

A profit-maximizing robotaxi company will follow two principles for deployment. First, maximize revenue-generating opportunities (for which miles is an imperfect proxy). Second, minimize non-revenue-generating—or “deadheading”—miles. All else equal, a robotaxi company makes more money when a robotaxi is carrying passengers than when it is parked in a depot. And the company probably loses less money when a robotaxi is parked in a depot than when it is deadheading. A parked robotaxi takes up space in the depot. But a deadheading robotaxi increases charging, cleaning, maintenance, and insurance costs.¹⁰⁶

These two principles explain why robotaxis (and taxis and TNCs) are deployed in areas with high travel demand. In a high demand area, when one trip ends, the next rider is nearby. There is less deadheading between rides. Robotaxis benefit from network effects. A network with a higher volume of trip requests means fewer deadheading miles between rides. Network effects explain why robotaxis are deployed in large metropolitan areas.¹⁰⁷ And they explain why downtowns are generally more appealing markets than outlying areas.¹⁰⁸ Even in San Francisco—one of the densest cities in the country—Waymo’s robotaxis are still deadheading over 40% of the time.¹⁰⁹

There are other factors beyond travel demand that affect where robotaxis will be deployed. Robotaxis are limited by their ADS’s ODD. If an ADS isn’t capable of functioning at higher speeds, the robotaxis that use it might not serve neighborhoods where many trips require highway driving. Robotaxi companies may also prefer to deploy in wealthy neighborhoods simply because their wealthy residents have a higher willingness to pay. But again, the analysis is complicated. If wealthy residents are more likely to own a car, they may be less interested in a robotaxi ride. Families with young children (or simply with a lot to carry or store in a vehicle) present another potential challenge to—or possibly opportunity for—robotaxis.

The same principles that explain where robotaxis will be deployed also explain when they will be deployed. In most cities, travel demand peaks on weekdays in the morning and evening rush hours. A fleet of vehicles that can serve peak rush hour demand will leave some vehicles sitting idle in the midday hours and most vehicles sitting idle overnight. Robotaxi companies will likely try to smooth out travel demand by charging more in rush hour, as Uber and Lyft do with surge pricing.¹¹⁰ They might also use their vehicles for package delivery or other tasks in periods of low demand.¹¹¹ But a profit-maximizing company’s optimal fleet size is likely lower than a fleet that would completely serve peak demand—a point that influences our analysis below.¹¹²

Robotaxis might be able to serve more of a city’s transportation demand with a smaller fleet than traditional taxis or TNCs can.¹¹³ The effect will be amplified if some of the city’s residents decide to give up their personal motor vehicles for robotaxis. Personal motor vehicles have a very low utilization rate—they sit in driveways, on streets, or in parking facilities for most of the day. A profit-maximizing robotaxi company will aim for high utilization.¹¹⁴ A smaller fleet serving the same travel demand could mean a lower environmental impact.¹¹⁵

One open question in robotaxi deployment is how often riders will be interested in being matched with strangers to share rides.¹¹⁶ In principle, sharing all or part of a trip is a win-win. Riders pay a lower fare. Robotaxi companies serve two revenue-generating riders at the same cost. The challenge of ridesharing is it requires very high travel demand. The routing algorithm needs to find two riders traveling along similar routes at roughly the same time. TNCs have experimented with ridesharing programs such as UberPool and LyftLine. But the results have been disappointing. In 2023, Lyft—not coincidentally the company with the smaller network—mostly gave up on shared rides.¹¹⁷

Robotaxi companies may have more success with sharing rides if they push fares low enough to grow the robotaxi market beyond the size of the TNC market. Today most commuters cannot afford to use TNCs for their daily trips to and from work. But the combination of automation and sharing could change these economics. And during peak periods, there are many potential riders coming from similar origin points heading to the same destination at the same time.¹¹⁸

Companies could also encourage shared rides by introducing new vehicle forms. As we mentioned above, in Zoox’s robotaxis, passengers face each other.¹¹⁹ Another possibility is compartmentalized vehicles, which might appeal to riders looking for safety and privacy.

Unfortunately, there’s a tradeoff between market concentration and shared rides. The more robotaxi companies competing for riders, the less likely that any two riders will be on the same network requesting a ride along the same route at roughly the same time. But it might be possible for multiple companies’ robotaxis to be deployed on the same network—or so we will argue in Part III.

C. Potential for Wider Adoption

The common vision for robotaxis is that they will not merely replace human-driven taxis, but that they will dramatically expand the market for

taxi-like services in large part by replacing trips in personal motor vehicles.¹²⁰ But some companies are still committed to the traditional automotive business model.

The demise of Cruise, a robotaxi startup acquired by General Motors, is instructive. As we explain more below, after a 2023 incident in which the company misled the public by misleading reporters and regulators,¹²¹ Cruise suspended its US robotaxi service. A year later, GM folded Cruise into its internal efforts to develop driver assistance features for the conventional vehicles it produces. In other words, GM has reverted to its traditional model of principally selling cars rather than rides.

GM is hardly alone in embracing this traditional approach. Mercedes already offers an automated driving feature—for certain freeways in certain conditions—on two of its premium models.¹²² Many others are pursuing similar features. This traditional business model is understandable, especially if automakers ultimately decide to sell not only the vehicles but also subscriptions to use the automated driving features.¹²³ After all, like today’s robotaxis, these features might also depend on substantial digital and human infrastructure behind the curtain.

For the robotaxi business model to compete, automated driving technologies need to mature. As we discussed above, robotaxis need to become cheaper. And there are other obstacles.

First, vehicle ownership generally entails significant fixed costs (to purchase or lease the vehicle and to insure it) and either objectively or subjectively smaller variable costs to then operate that vehicle (to fill it or charge it).¹²⁴ Given this, those who own a car that they are unable or unwilling to part with are likely to compare the purchase price of a robotaxi trip with the marginal cost of a trip in their individually owned vehicle.

Second, for the reasons we described above, robotaxis will face competition not only from personal motor vehicles but also from personal automated vehicles. Automated driving will not be limited to robotaxis.

Third, many American car owners—and particularly families with children—use their cars as an extension of their homes. Some people literally live in their cars.¹²⁵ Many rely on them as mobile storage lockers for themselves and their families—for sports equipment, booster seats, diapers, mobility aids, and stuff that they want on hand or simply cannot keep elsewhere.¹²⁶ Many also treat their vehicles as public displays or private retreats that are decorated and provisioned for their personal functional and aesthetic sensibilities.¹²⁷

Fourth, many Americans see their personal motor vehicle as giving them autonomy. What happens if you give up your car and the robotaxi company jacks up its prices? Or what if there’s an earthquake, and you need to evacuate? We will explore these questions in Part III. For now, it suffices to say that how widely robotaxis will be adopted is an open question.

D. Regulation

There are many layers of regulation that apply to robotaxis. We consider two—automated driving safety regulation and robotaxi service regulation.

Safety Regulation

The fundamental challenge of automated driving safety regulation is that it is hard to assess the safety of an ADS without observing its long-term performance on the road.¹²⁸ An ADS that can safely navigate routine driving might still not be acceptably safe. The critical question is how it handles unanticipated edge cases. Over time, both NHTSA and state agencies have developed regulatory strategies that rely on monitoring and responding to safety incidents. We start with federal regulation.

In the absence of federal legislation specific to automated driving,¹²⁹ NHTSA is using its longstanding statutory authority to regulate vehicle safety generally. The National Traffic and Motor Vehicle Safety Act of 1966 (“the Safety Act”) authorizes NHTSA to (1) conduct investigations, (2) seek recalls of defective vehicles or equipment, and (3) set safety performance standards.¹³⁰ NHTSA has used each of these authorities to address automated driving.

NHTSA has used its investigative power to mandate crash reporting.¹³¹ In 2021, NHTSA issued a standing general order that requires companies testing automated vehicles on public roads to report crashes.¹³² Serious crashes had to be reported within twenty-four hours, and all crashes, no matter how minor, had to be reported each month.¹³³ In 2025, the agency narrowed the reporting requirement to exclude some crashes with less than $1,000 of property damage, but most other reporting requirements remain in place.¹³⁴ NHTSA has received reports of hundreds of crashes and made redacted reports available on its website, although it doesn’t provide the context that would make the reports easier to understand.¹³⁵

NHTSA has used its recall power to remedy defective technologies.¹³⁶ Unless a company immediately initiates a recall on its own, these recalls often follow a pattern. NHTSA starts by opening an investigation into the company’s technologies. The company and the agency exchange data. They negotiate over potential remedies. Then the company resolves the investigation by declaring a defect and issuing a recall, which takes the form of change to the company’s software. In some cases, a recall can be carried out through over-the-air software updates.¹³⁷ In the last few years, Tesla, Waymo, Zoox, and several other companies have each issued recalls.¹³⁸ For example, Waymo initiated a recall after one of its automated vehicles crashed into a pickup truck hanging off a tow truck and another crashed into a telephone pole.¹³⁹

NHTSA has not used its rulemaking power to affirmatively regulate automated driving.¹⁴⁰ The agency stated years ago that, given the rapid pace of technological change, it planned to regulate primarily through recalls.¹⁴¹ But NHTSA has used its power to exempt vehicles and equipment from existing Federal Motor Vehicle Safety Standards (“FMVSSs”). In general, companies that integrate their ADS into FMVSS-compliant vehicles don’t need an exemption. They can just “self-certify” that their automated vehicles are compliant.¹⁴² But companies that build vehicles with certain kinds of unconventional designs may need an exemption. For years, NHTSA was slow in considering ADS-related exemption requests.¹⁴³ But starting in 2025,

NHTSA announced that it would expedite requests.¹⁴⁴ And shortly thereafter, it granted an exemption to Zoox.¹⁴⁵

It is important to recognize that, under the Safety Act, FMVSS exemptions are limited either by purpose or by number of vehicles. But because NHTSA itself promulgates these standards, it can obviate the need for exemptions by changing the underlying standards—as it has already done in the case of certain occupant-protection standards.¹⁴⁶

There is another layer of automated driving safety regulation at the state level.¹⁴⁷ We focus on the first two states where commercial robotaxi service became available, Arizona and California. They nicely illustrate the range of options.

Arizona’s policy is relatively laissez-faire—although still arguably more stringent than the rules that apply to conventional driving. An Arizona statute expressly authorizes companies to operate automated vehicles on two conditions.¹⁴⁸ First, the company must provide the state’s Department of Public Safety with a plan for how law enforcement can effectively interact with the vehicles.¹⁴⁹ Second, the company must provide the state’s Department of Transportation (“DOT”) with a written statement “acknowledging” that its vehicles comply with federal safety standards and Arizona’s registration, licensing, and insurance requirements.¹⁵⁰ The company must also “acknowledg[e]” that its ADS can comply with the traffic law and achieve a “minimal risk condition”—which generally though

not necessarily involves pulling over to side of the road¹⁵¹—when it encounters a situation it cannot handle safely.¹⁵²

Arizona does not specifically empower regulators to set independent safety standards. But it does authorize the DOT to suspend the registration of an automated vehicle after determining it “is not in safe mechanical condition and endangers persons on the highway.”¹⁵³ And the statute makes it clear that the company that is testing or deploys the automated vehicle “may be issued a traffic citation or other applicable penalty if the vehicle fails to comply with traffic or motor vehicle laws.”¹⁵⁴

Arizona has succeeded at attracting testing to the state. But its approach may have also contributed to a fatal crash. In the late 2010s, before the enactment of Arizona’s current automated driving statute,¹⁵⁵ Uber was attempting to develop an ADS with the goal of operating a robotaxi service. It was testing automated vehicles in Arizona with safety drivers.¹⁵⁶ In March 2018, one of Uber’s vehicles struck and killed Elaine Herzberg in Tempe, Arizona.¹⁵⁷ Herzberg was walking her bike across a multi-lane boulevard in the evening.¹⁵⁸ The Uber ADS sensors detected Herzberg, but the software did not slow the vehicle until it was too late.¹⁵⁹ The safety driver didn’t react in time because she was distracted by her smartphone.¹⁶⁰

The National Transportation Safety Board (“NTSB”) investigated the crash and issued a report that criticized both the safety driver and Uber’s safety practices.¹⁶¹ Regulators might have been able to prevent the crash if they had asked Uber more questions about how it was monitoring safety drivers and preventing them from becoming complacent. After the crash, Arizona’s governor ostensibly suspended Uber’s right to operate automated vehicles in the state.¹⁶² But Arizona didn’t change its general approach to safety regulation.¹⁶³

California’s policy is more hands-on.¹⁶⁴ A California statute directs the state’s Department of Motor Vehicles (DMV) to develop an application process for the testing and deployment of automated vehicles.¹⁶⁵ The statute requires all automated vehicles to comply with federal vehicle safety standards (unless exempted).¹⁶⁶ It also provides, however, that the DMV’s application process “shall include any testing, equipment, and performance standards [that it] concludes are necessary” for safety.¹⁶⁷ This language suggests that the DMV may directly regulate ADS safety. (More generally, states already exercise broad authority over the operational safety of vehicles, including through driver regulation, rules of the road, and vehicle roadworthiness.)¹⁶⁸

California’s DMV issues three kinds of automated driving permits: testing (with a safety driver), driverless testing (without a safety driver in the vehicle), and deployment.¹⁶⁹ A company engaging in activities for which a permit is required is subject to specific reporting requirements.¹⁷⁰ The company must disclose, among other information, the number of miles its automated vehicles drove on California roads and any crashes in which they were involved.¹⁷¹ Unlike NHTSA, California doesn’t let companies redact their narrative description of the crash. The combination of miles reporting and crash reporting gives the DMV a rough sense of a company’s crash rate, though this must be understood in the context of the ADS’s ODD.

To receive a deployment permit, a company must certify, among other things, that its vehicles have a two-way communication link with a remote agent and that they meet industry standards for cybersecurity.¹⁷² It must also provide information about its testing on public roads in California and elsewhere, including the number of miles driven and any crashes during testing.¹⁷³ The DMV can use the company’s track record in driverless testing to assess the risk of deployment. If the track record raises concerns, the DMV may decline to issue the deployment permit.

California currently doesn’t require a company with a deployment permit to report miles or crashes. This is unfortunate, because although companies are still reporting crashes to NHTSA, the public is deprived of access to the crash narratives that NHTSA redacts. The DMV does, however, require a company with a deployment permit to report any recalls it issues.¹⁷⁴ And the DMV also has the power to suspend or revoke permits on several grounds, including if it determines that the company’s “vehicles are not safe for the public’s operation.”¹⁷⁵

The strengths and weaknesses of California’s permitting system are illustrated by its experience with Cruise, the now defunct robotaxi subsidiary of General Motors. Cruise jumped through all the hoops—obtaining a testing permit, a driverless testing permit, and a deployment permit.¹⁷⁶ And in 2022, Cruise started to deploy a robotaxi fleet in San Francisco.¹⁷⁷ By the summer of 2023, Cruise’s robotaxis were involved in some crashes that raised doubts about its technologies. After a crash between a Cruise robotaxi and a firetruck, the California DMV made Cruise cut its fleet in half.¹⁷⁸ Then in October 2023, a conventional vehicle (whose driver fled the scene) hit a pedestrian walking across the street, and the force of that collision propelled her into a Cruise robotaxi in an adjacent lane.¹⁷⁹ The robotaxi ran her over, stopped, and then started moving again, dragging her while she was pinned beneath the vehicle.¹⁸⁰

Cruise then misled regulators and the public about the crash by focusing on the initial collisions and failing to mention the subsequent dragging.¹⁸¹ When the California DMV learned the full story, it suspended Cruise’s deployment permit.¹⁸² The DMV said it was suspending Cruise’s permits both because it had concluded that Cruise’s ADS was not safe and because Cruise had misrepresented information related to safety.¹⁸³ The company paid a $1.5 million federal fine.¹⁸⁴ In December 2024, GM shut Cruise down while claiming that its work would be folded into GM’s efforts to develop more advanced features on its production vehicles.¹⁸⁵

Until recently, California’s automated driving law didn’t explicitly provide a way for police to enforce the traffic law when a company was operating automated vehicles with no safety driver behind the wheel. This loophole deeply concerned local officials. The City of San Francisco explained that its police and fire departments don’t know what to do when a robotaxi blocked traffic or emergency vehicles.¹⁸⁶ In 2024, California enacted a statute that authorizes police to issue a “notice of autonomous vehicle noncompliance” against a company when one of its automated vehicles violates the traffic law.¹⁸⁷

Service Regulation

Robotaxi companies may also be subject to another layer of regulation—regulation of the provision of transportation service. In Arizona and California, robotaxi regulation grew out of TNC regulation, which in a sense grew out of (or was imposed over) taxi regulation.

Taxi companies are often regulated as or akin to common carriers.¹⁸⁸ Many large municipalities restrict entry into the formal taxi market.¹⁸⁹ In some cities, taxi drivers own or lease a medallion that authorizes them to operate.¹⁹⁰ Fares are fixed by regulation, usually at a constant rate per mile.¹⁹¹ And taxi companies are required to provide universal service—they cannot discriminate among riders.¹⁹²

Municipalities justify each element of taxi regulation with different policy rationales. Entry restrictions are thought to reduce congestion, limit pollution, protect driver pay, and prevent taxi drivers from competing for riders in dangerous ways.¹⁹³ Fare regulation is seen as a remedy for imperfect information. Riders hailing taxis on the street cannot easily compare fares, so regulation ensures the fares are always the same.¹⁹⁴ The universal service requirement has distributive goals—providing mobility for all residents regardless of their race, sex, class, or neighborhood.¹⁹⁵

The combination of entry restrictions, fare regulation, and a universal service requirement is also intended to create a system of implicit cross-subsidies.¹⁹⁶ The profits that taxis make in places and times with high travel demand (and thus less deadheading) subsidize the service they provide in places and times with low travel demand.¹⁹⁷ Without these regulations, new entrants might be able to “creamskim”—serve only the high value trips and thereby erode the profits that cross-subsidize other trips.¹⁹⁸ This was an early complaint about Uber and Lyft.

It is hard to assess whether the benefits of traditional taxi regulations outweigh the costs. With entry restricted, the taxi industry had little incentive for innovation. It was startups, not incumbents, that introduced hailing by app. The system of cross-subsidies didn’t always work. Many Brooklynites have hailed a cab in Manhattan only to watch the driver pull away after they gave their destination. But as defenders of taxi regulation have pointed out, many American cities experimented with deregulating taxis in the 1960s, 70s, and 80s only to find that fares rose and service quality declined.¹⁹⁹ In fact, most large cities that deregulated ultimately decided to bring back regulation.²⁰⁰

In the 2010s, taxi regulation faced a new challenge—the rise of app-based ridehailing. Uber and Lyft offered lower fares, often shorter wait times, seamless payment, a driver rating system, and a more convenient way to hail a ride.²⁰¹ They rapidly took market share away from taxis.²⁰² Uber and Lyft were also “regulatory entrepreneurs.”²⁰³ In many jurisdictions, their service was illegal or in a legal gray area. For example, while Uber initially focused on professional drivers that might be regulated by something like NYC’s Taxi and Limousine Commission, it soon expanded to ordinary drivers who were freelancing. In some jurisdictions, legislators and regulators cracked down.²⁰⁴ Uber and Lyft fought back by encouraging their customers to lobby their state representatives to legalize—and often preempt local regulation of—the transportation service they had come to prefer.²⁰⁵

In recent years, the TNC market has stabilized. Uber and Lyft have formed a duopoly, splitting the market about three-to-one.²⁰⁶ They have both steadily raised their fares.²⁰⁷ After their respective IPOs, they could no longer rely on venture capitalists to subsidize their rides and faced investor pressure to turn a profit. In hindsight, the low fares and high driver pay of ridehailing’s early days were an unsustainable illusion—and arguably a predatory pricing scheme.²⁰⁸ But despite the increased fares, TNCs are offering a better service than taxis did, at least if you measure by consumers’ willingness to pay.

Municipalities and taxi companies should have taken the opportunity presented by app-based ridehailing to rethink taxi regulation. They should have been allowed to craft a new set of rules that apply equally to all vehicles-for-hire.²⁰⁹ But that didn’t happen. In many states, Uber and Lyft bypassed cities and went directly to state legislatures in their pursuit of a new legal category—TNCs—with a new set of rules different than the local rules that continue to apply to taxis.

Although often associated with their apps, the key feature of TNCs is their reliance on drivers using their own private vehicles.²¹⁰ TNCs are not subject to entry restrictions or to fare regulation that many municipalities still apply to taxis.²¹¹ The imperfect information rationale for fare regulation is arguably obsolete because riders can compare fares by toggling between apps.²¹² To the extent that certain rides are subsidized, it is because of strategic considerations by the companies or the drivers.

The content of TNC regulation varies by state. Arizona’s rules focus on rider and driver safety. Arizona’s TNC statute provides that the state Department of Transportation shall issue permits to TNCs that comply with the statute’s requirements.²¹³ Before each ride, TNCs must disclose to riders the identity of the driver, the vehicle’s license plate, and the fare.²¹⁴ After each ride, they must provide riders with an electronic receipt and preserve a digital record of the trip.²¹⁵ TNCs must disclose to drivers when the company’s insurance policies apply to them.²¹⁶ And they must screen drivers by conducting criminal background and driving record checks and enforcing a zero tolerance policy for drugs and alcohol.²¹⁷

California’s TNC statute goes further. It allocates regulatory authority to the state’s public utilities regulator, the California Public Utilities Commission (“CPUC”).²¹⁸ Like Arizona, California requires that TNCs disclose to riders information about the driver and vehicle, disclose to drivers when the company’s insurance policies apply, and conduct a criminal background check on drivers.²¹⁹ But California also mandates that TNCs meet specific minimum levels for insurance coverage that are higher than those that would otherwise apply to personal motor vehicles.²²⁰ And it prohibits TNCs from disclosing a rider’s personally identifiable information to third parties without consent.²²¹

California takes modest steps to address the externalities that TNCs create. TNCs must develop a “greenhouse gas emissions reduction plan” with targets for increasing the proportion of drivers using electric vehicles.²²² And the California legislature granted San Francisco the authority to tax riders of traditional TNCs and robotaxis to fund the city’s transportation operations and infrastructure.²²³ California has also tried to encourage TNCs to expand mobility. They are required to charge their riders five cents per trip to contribute to the “TNC Access for All Fund,” which supports accessible transportation.²²⁴

The development of robotaxis has long been connected with the rise of ridehailing. The leaders of the Google self-driving car program decided to pursue the robotaxi business model as they watched ridehailing take off.²²⁵ Both Uber and Lyft tried to develop their own ADS. Uber founder Travis Kalanick once called robotaxis “existential” for his company.²²⁶ But the reputation of Uber’s automated driving program was damaged by revelations following its fatal crash in Arizona in 2018. And after their IPOs, neither Uber nor Lyft had the cash to sustain their programs, so they sold them.²²⁷

The first robotaxi regulations have been strongly influenced by TNC regulations. Arizona applies its TNC regulations to robotaxis through incorporation by reference. An Arizona statute provides that: “An on-demand autonomous vehicle network may operate pursuant to [the state’s TNC statute] except that any provision of [that statute] that by its nature reasonably applies only to a human driver does not apply to a fully autonomous vehicle operating with the [ADS] engaged . . . .”²²⁸

California’s legislature has not enacted a statute specific to robotaxis (as opposed to TNCs, vehicles for hire, or automated driving more generally). Instead, the CPUC created its robotaxi regulations using its existing statutory authority over vehicles for hire.²²⁹ In 2018, the CPUC created two pilot programs for robotaxis. The first pilot let companies with a vehicle-for-hire permit and a DMV testing permit offer rides in their robotaxis with a safety driver present.²³⁰ The second pilot let companies with a vehicle-for-hire permit and a DMV driverless testing permit offer rides without a safety driver.²³¹ Companies participating in the pilots were prohibited from accepting payment from riders. And they were required to submit aggregate data on their operations.²³² Cruise, Waymo, Zoox, and three other companies obtained permits for at least one of the pilots.²³³

In 2020, the CPUC issued regulations for robotaxi deployment. Companies with a vehicle-for-hire permit and a DMV deployment permit were allowed to apply to the CPUC for a robotaxi deployment permit.²³⁴ Companies that were approved were allowed to start charging riders.²³⁵ The CPUC imposed two new obligations on applicants. First, they have to submit a “Passenger Safety Plan” that explains how they (1) minimize safety risks from other riders; (2) minimize safety risks from outside the vehicle; (3) ensure riders can safely identify the vehicle, enter, and exit; (4) enable riders to communicate with remote operators; and (5) collect and respond to rider complaints.²³⁶ Second, after a company is approved to deploy, it has to submit detailed, trip-level data on each ride request and each ride.²³⁷

Two companies—Cruise and Waymo—applied to deploy a commercial robotaxi service in San Francisco.²³⁸ In August 2023, the CPUC approved both requests.²³⁹ But as we have seen, Cruise’s robotaxi service did not last long. The CPUC suspended Cruise’s robotaxi deployment permit after the DMV suspended Cruise’s ADS deployment permit in the aftermath of its serious pedestrian crash in October 2023.²⁴⁰ Waymo’s robotaxi operations, however, have continued to grow. In March 2024, the CPUC approved Waymo’s request to expand its service area in San Francisco down to Silicon Valley and to add a new service area in Los Angeles.²⁴¹

So today, at least two states have considerable experience regulating an active commercial robotaxi service.²⁴² In the rest of this Article, we ask, how should they regulate?

II. Curbing Externalities

We start with regulating externalities. Robotaxis will emit pollutants into the environment. They will contribute to wear and tear on physical infrastructure. They will cause congestion. They will passively surveil their surroundings, which could erode privacy. But so too will many other technologies and travel modes. In this Part, we consider how policymakers should respond to the externalities of robotaxis in a way that accounts for this broader context.

A. Externalities and Mode Choice

One might think there’s an easy answer to the externalities robotaxis create: impose Pigouvian taxes, so the robotaxi companies internalize the costs. But personal motor vehicles, taxis, TNCs, and other modes of travel—whether automated or not—also create externalities. So policymakers must consider how externality regulation will affect choices among modes.

Burdening automated driving in ways that do not burden conventional driving will push people toward conventional driving. Burdening robotaxis in ways that do not burden personal automated vehicles will push people toward personal automated vehicles. If robotaxis offer net social benefits relative to those modes, these are not desirable outcomes.

But externality regulation that applies to all travel modes might not always be attainable.²⁴³ The practicality and political feasibility of regulation can vary by mode. In some cases, robotaxis might be easier to regulate, and to at least some degree policymakers should take advantage of the opportunity.

We suggest a hierarchy of action:

Internalize costs across all travel modes.
Where this is not possible, internalize costs across motor vehicle modes.
Where this is not possible, internalize costs across fleet-deployed motor vehicles.
Where this is not possible, internalize costs across automated vehicles.
Where this is not possible, internalize costs across robotaxis.

Costs can be internalized through taxation, market caps, performance requirements, or other regulatory mechanisms. If applied proportionately, the regulatory mechanisms should be automatically indexed so that the extent of a mode’s internalization of its external costs rises along with its share of the market. In addition, when choosing what and how to regulate, we suggest prioritizing action on what are likely to be significant inflection

points that could lock the public, policymakers, and companies into one long-term path or another.

Take the example of motor vehicle emissions that we discuss below. Ideally, in our view, regulators would require that all new motor vehicles²⁴⁴ achieve increasingly aggressive fuel efficiency standards. If that’s not politically realistic, then it may be appropriate to begin with fleets—government vehicles, other vehicle pools, rental cars, and the like.²⁴⁵ But imposing significant initial burdens on these fleets could significantly disadvantage them vis-à-vis private ownership models. And so, it may be appropriate to require fleet vehicles to meet a fuel efficiency standard that is somewhere between the standard for regular vehicles and the standard that would be ideal.

Or take the example of the third-party liability insurance required for motor vehicles. Countries in the European Union generally require vehicle owners and operators to have liability insurance that covers anywhere from millions of dollars of exposure to literally unlimited exposure.²⁴⁶ Even the low end of this range is a hundred to a thousand times greater than minimum insurance requirements in most U.S. states. Ideally, in our view, states would dramatically increase insurance minimums across the board and index them to inflation.²⁴⁷ States have not done so.²⁴⁸ Some states, however, have required the companies testing or deploying automated vehicles to show financial responsibility in the millions of dollars.²⁴⁹ Under our approach, the difference between the two requirements might not be so great, but this is at least useful precedent—and, in fairness, does not seem to have dampened enthusiasm for automated driving.²⁵⁰

Finally, we recognize that even when internalizing externalities provides benefits to those with less money, it can also impose disproportionate costs on them. An increase of $1,000 in the price of a new car to include an important safety feature is negligible for someone who can afford a $150,000 car but significant for someone who can afford only a $15,000 car. So too is increasing the per-mile cost of a trip (whether by private automobile or robotaxi) by fifty cents.

Fortunately, internalizing costs is only half of the policy question. The other half is how to channel the societal gains. In the easiest case of governmental revenue, a government can return to households any additional funds it receives from, say, taxing carbon or setting a floor for the price of energy. If designed carefully, these rebates can ultimately enhance rather than diminish individual choice: Someone who chooses to travel an average amount by personal automobile might well break even if their rebate covers the additional costs of fuel, tolls, and parking. Meanwhile, someone who chooses to live closer to work or bicycle may well come out ahead. Even where the benefits are societal rather than governmental and abstract rather than fiscal, smart policies can equitably capture and return some of this gain.²⁵¹

In this section, we address just some of the external costs of motor vehicle travel: pollution, wear-and-tear, congestion, and privacy. Of course, traffic injury is a national crisis, but it is beyond the scope of our present analysis.²⁵²

B. Pollution

A critical externality of motor vehicle use is air pollution. Tailpipe emissions from traditional gasoline and diesel vehicles account for about one-fifth of greenhouse gas emissions in the United States.²⁵³ And tailpipes also emit other gases and particulates harmful to human health.²⁵⁴

The gradual electrification of the vehicle fleet is reducing its per-mile carbon footprint.²⁵⁵ In the most recent quarter, almost nine percent of new vehicles sold in the United States were battery electric.²⁵⁶ And the United States lags many countries in the developed world in electric vehicle adoption. In Norway, about eighty-nine percent of new vehicles sold in 2024 were electric.²⁵⁷

The Biden administration prioritized electrification of the vehicle fleet. The Inflation Reduction Act provided tax credits for electric vehicles and charging stations.²⁵⁸ The U.S. Environmental Protection Agency issued a new tailpipe emission rule that would effectively require half the new cars sold in 2032 to be electric (or use an alternative fuel).²⁵⁹ And the U.S. Department of Transportation has set a fuel economy standard that would require the cars that each automaker sells to average sixty-five miles per

gallon.²⁶⁰ Since 2025, The Trump administration or Congress has reversed many of these steps.²⁶¹

Some states have gone further—or at least have tried to.²⁶² California law requires that all new passenger vehicles sold in the state in or after 2035 be powered by something other than gasoline or diesel.²⁶³

The robotaxi business model is well-suited to electric vehicles. Robotaxis are being deployed in dense, urban areas. They are never too far from a charging station. A robotaxi company can monitor when its vehicles need to be recharged, and its routing algorithms can plan its trips accordingly. Robotaxi riders being shuttled around a city don’t suffer “range anxiety” the way that a human driver might on a long-distance trip. Charging does currently require taking a robotaxi out of operation for potentially longer than a stop at a gas station, but this may eventually be addressed with better batteries, faster charging, charging-in-motion, and even battery swapping (which is likely more manageable within a fleet than between private vehicles).

Policymakers should mandate that all robotaxis be electric or alternative-fuel vehicles.²⁶⁴ California has already enacted a statute that requires any automated vehicle in model year 2031 or later to be electric.²⁶⁵ There’s no reason to wait that long. The large U.S. companies that are deploying or developing robotaxis are using electric vehicles today—Waymo’s Jaguar I-Pace, Zeekr minivan, and Hyundai Ioniq; Zoox’s bespoke electric vehicle; and all of Tesla’s models.²⁶⁶ And none have announced plans to use gasoline-powered vehicles in the future. An electric vehicle mandate for robotaxis would likely not face the opposition that a broader requirement could. And it would have the effect of setting a market floor that others could not subsequently undercut.

An electric vehicle mandate will not eliminate robotaxis’ contribution to air pollution. Increasing demand for electricity can increase emissions if that electricity is generated by burning fossil fuels. Tires, brake pads, and other vehicle parts exposed to heat or friction generate particles that can harm the environment and human health.²⁶⁷ Supply chains for vehicles and data centers for automated driving also have significant environmental impacts. But here mode-neutral environmental regulation is likely the best solution.

C. Wear-and-Tear

Motor vehicles also cause wear-and-tear on the roads. State and federal governments address this externality by charging excise taxes on gasoline.²⁶⁸ Revenue from gas taxes can—and in some states, must—be spent on transportation infrastructure.²⁶⁹ The rationale for a gas tax is that gas consumption roughly tracks miles driven, so the tax functions as a user fee.

As motor vehicles have become more fuel-efficient and as electric vehicles have increased in popularity, though, the connection between the gas tax and VMT is becoming attenuated. To make matters worse, the federal gas tax and some state gas taxes are not indexed to inflation.²⁷⁰ Although the gas tax today still generates revenue with the salutary effect of promoting electric vehicles, at some point it will be necessary to find other ways to finance surface transportation.

The simplest alternative to a gas tax is a VMT tax—a per mile charge to use the public roads. Four states are already implementing VMT taxes for electric vehicles.²⁷¹ These states offer electric vehicle owners the choice of paying a fixed annual fee or paying a VMT tax capped at the level of the annual fee.²⁷² Hawaii plans to take away the choice and require all electric vehicle owners to pay its VMT tax in 2028.²⁷³

A shift to electric vehicles may increase wear-and-tear on the roads because batteries make electric vehicles heavier than similar internal combustion engine vehicles.²⁷⁴ In a world where all motor vehicles were electric and an upstream carbon tax addressed the broader environmental burden of energy production, a weight-adjusted VMT tax might be the optimal solution. Short of that, tweaking traditional fuel taxes by properly indexing them to inflation, adjusting them for fleetwide fuel efficiency, and using them to provide a floor for the price of fuel could address wear-and-tear while capturing some of the larger externalities of internal combustion engines.

D. Congestion

Congestion is an externality that all motor vehicles can create. But robotaxis may exacerbate congestion by satisfying latent travel demand or creating new travel demand.²⁷⁵ Riders might find travel in a robotaxi less costly. The cost reduction could be financial: a robotaxi company might charge fewer cents per mile than a traditional TNC would. It could be about opportunity cost: a passenger in an automated vehicle might be able to sleep or do work that a driver could (and should) not. Or it could be psychological: riding may be less stressful than driving, especially during congested periods. The cost reduction might also encourage people to make different

decisions about where they live or work. In each case, the benefits could lead people to take more trips and longer trips.

How much congestion robotaxis create will depend not only on how many people take rides and how long those trips take, but also how efficient the networks are. As we mentioned in Part I, Waymo’s robotaxis in San Francisco are deadheading over 40% of the time.²⁷⁶ The robotaxi companies’ private incentives to reduce deadheading don’t capture all the social costs of congestion, so regulation can and should supplement that incentive. But it is important to remember that personal cars have their own form of deadheading: the miles they drive while cruising in search of parking.

Some U.S. cities have VMT taxes that apply only to certain modes, which function in some ways like a congestion tax. As we mentioned in Part I, the California legislature gave the City of San Francisco the authority to tax TNCs and robotaxis.²⁷⁷ In 2019, San Francisco voters approved a tax, now called the Traffic Congestion Mitigation Tax, at the ballot box.²⁷⁸ Riders in a gasoline vehicle who request to ride solo are taxed up to 3.25%.²⁷⁹ Riders in an electric vehicle and riders who request to share their ride are taxed 1.5%.²⁸⁰ In some respects, the tax is well-designed. The tax is a fixed percentage of the fare, so it should scale with VMT and travel demand. But because it only applies to TNCs and robotaxis, it distorts the market in favor of personal motor vehicles.

We are less sure of the politics of more ambitious visions of VMT taxation in which continuous monitoring facilitates dynamic—that is, demand-variable—pricing. As a general matter, Americans seem skeptical of devices that are attached to their cars for the purpose of updating “the government” on their travel. This is understandable.

Instead, we favor a mix of mechanisms that, in combination, generate revenue above an excise tax on gas or carbon, serve as a proxy for the use of valuable road space, and accordingly help to manage travel demand. These include congestion prices in urban centers, other forms of variable tolling on major roadways and bottlenecks, and market-rate parking rates. As famous photos comparing the road space used by people on foot, in a bus, on bikes,

and in cars suggest,²⁸¹ the key is to charge for road space in a way that optimizes that use.²⁸²

Congestion pricing has been implemented in London, Milan, Singapore, and Stockholm.²⁸³ In January 2025, after much drama, New York City implemented the first general purpose congestion tax in the United States.²⁸⁴ The initial results are promising. Travel times on the bridges and tunnels leading to lower Manhattan have fallen.²⁸⁵ But it is too early to predict the long-term equilibrium.

An important point here is that there is no definitive solution to congestion: like popular restaurants, popular places and routes at popular times will be crowded. But there are still important policy choices about what that crowd looks like—and who can get through. If single- or zero-occupancy motor vehicles are queued, can people in communal and active modes still move? Do emergency vehicles have a path? If automated driving increases both demand and capacity, the result could be even more vehicles but no greater mobility.²⁸⁶ Given this, it is essential to start answering these questions before automated vehicles start eclipsing conventional vehicles.

E. Privacy

Loss of privacy is a hidden externality—and one with which automated driving has a complicated relationship.²⁸⁷ We see privacy as playing a nuanced but ultimately important role in advancing the important societal values of freedom and community. Safety can preserve a person’s privacy.²⁸⁸ Surveillance can impede a person’s ability to act on their own and to form relationships with others.

An ADS aims to generate a three-dimensional, 360-degree view of its surroundings.²⁸⁹ That is why automated vehicles are outfitted with a suite of sensors. Those sensors are constantly receiving data about the objects in the vehicle’s vicinity. As a consequence, any person who passes within the range of the sensors will likely (and indeed should) be perceived by these sensors.

A high-fidelity perception system is critical to ADS safety. An ADS can choose a safe path only if it knows where people, animals, and objects are moving in real time. Indeed, one of the ways that ADSs might improve on human drivers is by detecting and tracking objects that a driver might miss.²⁹⁰ If stored, ADS perception data are also valuable for crash investigations, though more data does not necessarily mean more certainty. In addition, insights from these data might be useful to important research that has little to do with automated driving.

It might seem as though the privacy interests affected are insignificant. ADS sensors will only pick up what can be seen from a public roadway. Many of these places will also be surveilled by business or home monitoring systems. In a conventional sense, there is little reasonable expectation of privacy on a sidewalk or a front porch.²⁹¹

But we think the privacy risks are substantial. If automated driving succeeds commercially—and here we are talking not only about robotaxis—then surveillance will become pervasive.²⁹² Automated vehicles will frequently pass by your home, your workplace, and every third place you visit. Their powerful sensors in combination with onboard and offboard computing power will add considerably to existing and growing surveillance by private and public actors.

Automated driving companies might also, among others, quietly become agents of law enforcement.²⁹³ Increased monitoring could have real benefits for deterring crime or apprehending suspects. But if a city councilor proposed to have the police department build a system of pervasive surveillance, at a minimum we would have a debate about whether the public safety benefits outweighed the privacy harms.²⁹⁴ The deployment of robotaxis might bring about the same privacy loss without any public debate. Courts have already issued warrants to robotaxi companies for sensor data.²⁹⁵ And police may not always need to get a warrant. After a deliberate explosion in a Cybertruck in Las Vegas, for example, Tesla quickly made information from that vehicle and from its network available to law enforcement.²⁹⁶

Waymo and its erstwhile rival Cruise both disclosed that they have provided ADS video data to the police. Waymo claimed that it generally only shares data under a warrant or court order.²⁹⁷ The company has stated that, if the police make a request that is overbroad, “we try to narrow it, and in some cases we object to producing any information at all.”²⁹⁸ Cruise likewise stated that it “disclose[s] relevant data only in response to legal processes or exigent circumstances, where we can help a person who is in imminent danger.”²⁹⁹ Both of these statements are carefully hedged, and they have not been independently verified beyond some open records requests. These dynamics evoke past (and indeed current) debates about the relationship between telecommunications companies and federal investigators.

Companies have strong incentives to stay in the good graces of law enforcement because policing requires discretion. Every time an automated vehicle is involved in a crash or at least arguably violates a traffic law is an opportunity for the police to use their discretion to benefit the automated driving company. So companies may decide to curry favor with police by voluntarily sharing videos and other data that will be useful for their investigations.

So how can regulation reduce privacy risks while not inhibiting the development and deployment of safe automated vehicles?

We would prefer to see these risks addressed as part of a much broader privacy framework. These challenges are not limited to robotaxis or automated vehicles more generally or advanced motor vehicles even more generally. They also exist for aerial drones, sidewalk robots, smartphones, doorbell cameras, a wide range of other consumer-facing connected devices, and an even wider range of more obscure applications.³⁰⁰

In the absence of such an approach, policymakers should use their existing authority to scrutinize the data practices of companies within that authority. Unfortunately, this is likely to result in different rules for similar actors. If, for example, an agency has authority over robotaxis but not automated driving companies more generally, then rules for robotaxis might look different than rules for automated driving more generally. But these discrepancies might be useful in experimenting and ultimately incentivizing efforts to harmonize.

What might this scrutiny look like? It could focus on an admittedly nebulous category of “privacy-sensitive data” that could reveal personally identifiable information. And it could specify processes by which companies may seek to use those data for purposes other than operating and improving their automated vehicles—including sharing those data with affiliated companies (like Google or Amazon) or with law enforcement.

To be sure, these rules will impose a compliance burden. Affected companies will need to keep track of who has access to privacy-sensitive ADS data and monitor them. And like many privacy regulations that apply to a company’s internal operations, these rules will not be easy to enforce. Regulators may need to rely on whistleblowers. But if we do not take action to protect privacy before automated vehicles are widely deployed, we may be sleepwalking into a regime of pervasive surveillance.

III. Protecting Riders

The easiest way to protect riders is to give them choices—provided that those choices are not skewed. Competition can force firms to lower fares, improve service, and invest in innovation. Today, robotaxis are providing healthy intermodal competition by offering an alternative to TNCs, taxis, and personal cars. But there might not be much intramodal competition among robotaxi companies. As we explained in Part I, robotaxis create economies of scale and network effects that favor concentration. In many U.S. cities today, the TNC market is an Uber-Lyft duopoly.³⁰¹ The robotaxi market could easily become a Waymo monopoly. And if robotaxis start to replace other modes, a robotaxi monopoly could be more dangerous.

To be sure, market concentration is a possibility but not a certainty. Robotaxis may involve a variety of technologies and business cases. As technologies improve and their costs decline, automated vehicles or even ADSs that can be added to existing vehicles may become surprisingly cheap to make, buy, and even operate. This seems especially likely if the ADSs of the future are less reliant on numerous sensors, highly detailed maps, and remote human assistants. Some may even be open source. This could create competition among vehicle owners, among providers of automated driving services, and among automated travel modes. Concentrations, if they exist at all, might turn up in surprising places. If would-be passengers can simply rely on their own personal AI agent to automatically find—and even negotiate for—a ride, then public-facing platforms such as Uber or Amazon may lose some of their brand and market power.

But we think the risk of market concentration is real enough that it is worth anticipating. So in this Part, we recommend a two-step approach to rider protection. First, policymakers should put a thumb on the scale for new competitors. Second, they should take steps now to preserve rider autonomy in a concentrated market.³⁰² We hope that preventing monopoly abuse or neglect long before a monopoly arises will not just protect riders—it will give them the peace of mind to use robotaxis instead of personal motor vehicles.

A. Promoting Competition

How can robotaxi regulators promote competition and encourage innovation among robotaxi companies? We argue that they should permit open entry, ban contracts that lock in riders, and enable one-stop access to competing networks. But before we turn to these proposals, we want to emphasize a subtle reason why competition is especially important in the robotaxi market: it may create redundancy that will prove valuable for safety.

Competition and Safety

The development of a safe ADS would create tremendous social value. In 2023, there were 40,901 people killed in motor vehicle crashes in the United States and approximately 2.4 million people injured.³⁰³ NHTSA estimates that the annual social cost of crashes—including both the direct economic costs and the implied costs of death and injuries using the value of a statistical life—is about $1.37 trillion.³⁰⁴ Therefore, an ADS only needs to modestly improve on the safety performance of human drivers to be worth tens of billions in social benefits each year. If automated driving can achieve the safety gains that its developers are hoping for, the tens of billions of dollars of capital that have been invested to date may be below the socially optimal level.

If more companies invest in developing an ADS, more ideas will be pursued. Any particular corporate research lab is limited by the idiosyncrasies of its leadership and the path dependence of its development approach. But as long as competing labs exist, engineers who cannot get their managers to greenlight their ideas can take them elsewhere. And the more ideas that get pursued, the greater likelihood that they will make a real difference for safety—individually or in combination.

There is a special reason to care about independent development in this context. In safety engineering, redundancy is a virtue. Many safety-critical systems, like commercial airplanes, are designed to be redundant.³⁰⁵ If one subsystem fails, a backup system not vulnerable to the same failure mode can step in. This may be why some companies are developing ADSs that combine modular and pure end-to-end approaches.³⁰⁶ It is possible that an even more robust system could be developed by combining two systems developed by independent companies into one redundant system—if competition is not cut off prematurely.

Similarly, different companies might develop different—and ultimately complementary—approaches not only to design but also to safety validation and verification. Multiple approaches to simulation, for example, could help to increase both the accuracy of and confidence in methods for demonstrating and monitoring the safety of automated vehicles.

We recognize the irony in advocating for competition on the ground that it could produce an outcome where two competitors eventually merge their technologies. But that is largely the path that the aviation industry followed—a period of competition on safety followed by cooperation on safety. And even if robotaxi companies ultimately converge on ADS design, they can still compete on service quality, wait times, and price.

Competition in the robotaxi industry may also improve the transportation system’s resilience to cyberattack. If one robotaxi company’s system is hacked and has to ground its fleet, a competitor could serve the riders who might otherwise have been stranded. If competing robotaxi companies use different cybersecurity strategies, it may be more difficult for hackers to disrupt them both simultaneously.

Open Entry

Now we turn to our proposals for promoting competition—starting with open entry. The term “open entry” has three meanings in this context. It means that any company can enter the market. It means that any company can deploy as many vehicles as it chooses. And it means that companies can, through APIs and common data specifications, market the services of their competitors.³⁰⁷

All three senses of open entry are relevant to competition. As we have seen, the robotaxi business model relies on economies of scale. Robotaxi companies will need to deploy large fleets in many cities to overcome the fixed costs of developing an ADS. A company raising capital to challenge Waymo needs to be able to reassure its investors that it will be permitted to fight for the whole market and try to grow it. Restricting entry could entrench a Waymo monopoly and reduce socially valuable safety innovation.

Open entry in service regulation is compatible with pre-deployment scrutiny in safety regulation. California illustrates this possibility. As we explained in Part I, the California DMV requires companies testing or deploying automated vehicles to apply for permits.³⁰⁸ When a company applies for a deployment permit, the DMV can consider whether the applicant’s track record during testing in California or testing or deployment elsewhere supports deployment in California. The CPUC then conditions entry to the robotaxi market on the DMV issuing a deployment permit.³⁰⁹ The combination of pre-deployment safety scrutiny and otherwise open entry protects the public without reducing competition from responsible entrants.

Open entry will create externalities—more pollution, wear-and-tear, congestion, and surveillance. It could also enable an entrenched competitor to flood a market as a defensive mechanism. But restricting entry is an overly crude tool to curb them. The proposals we provided in Part II are more targeted means to regulate externalities.

Open entry also does not mean tying the hands of government when it acts as a market participant rather than a regulator. Transit operators, for example, should be able to exclusively partner with robotaxi companies to extend the reach of their networks. In fact, Waymo has already announced plans to operate a transit service for Chandler, Arizona.³¹⁰ And certain roadways owned by government agencies—such as airport access roads—might merit special rules. San Francisco is experimenting with a pilot program that allows Waymo robotaxis to use an otherwise car-free stretch of Market Street.³¹¹

Lock-in Contracts

Policymakers should also prevent robotaxi incumbents from locking in riders. A new entrant will likely need to heavily subsidize their rides until they can get enough riders on the network to bring deadheading down to a tolerable level. This is part of why Uber and Lyft burned through billions while they were building up their networks.³¹² On the other hand, this is also how cell companies initially funded their expensive networks—and yet pay-as-you-go plans are now thriving.

A robotaxi monopolist could entrench its position by offering its service as a subscription contract. Waymo is already offering subscriptions for teenage riders.³¹³ Subscriptions would make it hard for a new entrant to get riders to switch networks. Even if the new entrant offered a better service or a lower fare, subscribers would have no reason to consider switching until it came time to renew their subscriptions. So, the new entrant would need more time and money to build up network effects.

Consider how competition would play out if an incumbent monopolist had a more extensive ODD than a new entrant. If riders buy individual rides rather than a subscription, the new entrant has a fighting chance. It could gain a foothold in the market by serving some smaller segment of travel demand. Riders could choose the new entrant for individual trips in its limited service area and the incumbent for individual trips to places the new entrant doesn’t serve. If, however, riders buy one subscription to serve all of their travel needs, a new entrant cannot compete until it can serve a comparably extensive area.

There is nothing inherently anticompetitive about subscription contracts. They can help businesses and riders plan their budgets more easily and hedge against risk that demand or fares will change. And—as we discuss more below—people might be more willing to give up their personal motor vehicles if they knew the price would be predictable.³¹⁴ But the combination of incumbents with market power, network effects, new entrants with limited ability to serve the whole market, and rider lock-in could create a formidable barrier to entry.

So, here is our proposal: instead of banning subscription contracts, policymakers can simply require that riders be allowed to cancel their subscriptions and receive a pro rata refund at any time. That approach would allow riders to gain greater certainty about fares while making it easier for new entrants to get them to switch. The competitors would not have to buy riders out of their existing contracts. A light thumb on the scale for new entrants would make it harder to maintain a monopoly.

One-Stop Access to Competing Networks

Policymakers, transit agencies, and even some companies have long recognized the potential for the integrated provision of what is often called “mobility as a service” (“MaaS”). To find the best—or the cheapest—way to get from one point to another, a traveler should not need to consult and compare multiple apps or engage in multiple transactions.

Public transit agencies have long recognized the value of a single rider interface (even if their implementation has been limited). To cite just two examples of many, New York’s Omny cards and London’s Oyster cards each work on a set of transit services that have a variety of operators. And both the New York Metropolitan Transportation Authority and Transport for London provide API access to their real-time transit data to allow independent developers to create apps and other tools for riders.³¹⁵

Others have an even broader vision for transport data. The Mobility Data Specification developed by the City of Los Angeles offers a “common language” for transport data.³¹⁶ GTFS and GTBS offer similar common frameworks for transit and bikeshare, respectively.³¹⁷ Finland mandates that both public and private providers of transportation and parking services facilitate third-party access to their schedules and prices.³¹⁸ The “multimodal digital mobility services” regulation originally envisioned—though now largely abandoned—by the European Commission would have expanded aspects of Finland’s approach to the entire European Union.³¹⁹

Many internet platform companies show offers from different providers for identical, equivalent, or comparable products and services—think Google Shopping or Amazon’s third-party sellers or, in the case of transportation, Rome2Rio and (in China) Baidu Maps.

As we noted earlier, AI agents could obviate the need for or power of some of these platforms; users could simply direct their personalized agents to find and book whatever ride suits them the best. But integrated apps, backend platforms, public APIs, and common data standards could still increase the effectiveness of—and reduce the transactions costs for—these searches.

Regulators can build on this important MaaS foundation by enabling one-stop access to competing networks of vehicular rides of all kinds. Smaller providers should have the option but not the obligation to offer their services through third-party platforms. In contrast, it may be prudent to require dominant providers to facilitate this kind of third-party access.

B. Preserving Autonomy

Even if policymakers permit open entry, limit lock-in, and enable one-stop access to competing networks, the robotaxi market may still be highly concentrated. Even with integration, the economies of scale may still tilt the market against competition. So, policymakers need to prepare for a world where one company dominates the robotaxi market. The benefits of preventing monopoly abuse are twofold. First, it protects riders should a monopoly arise. Second, it might provide people the peace of mind they need to give up their personal motor vehicles and switch to robotaxis today.

The appeal of personal motor vehicle ownership is autonomy. If you have the keys to the car in your driveway, you can at least in theory travel where you want and when you want at a price that you can anticipate. For many Americans, it is difficult to imagine living without access to their own car or truck. Yet in New York and other transit-rich cities around the world, many residents with the means to buy a personal motor vehicle choose not to own one. They have confidence that the transportation system will give them at least as much autonomy as a personal motor vehicle.

Suppose you were a New Yorker whose Texan friend was about to move to Manhattan. She has always lived in a household with a personal motor vehicle. How could you persuade her that she doesn’t need a car in her new city? You could say that the subway will take her almost everywhere she would want to go in the city, that it runs twenty-four hours a day and seven days a week, that the fare is always $3.00, and that the wait for a train is usually not long. You could say all this with confidence in part because the subway is run, and its fares and service are set, by a public agency.

This is the kind of argument that cities and robotaxi developers will need to make. Residents will need to be confident that robotaxis will take them almost everywhere they would want to go in the region, that they run twenty-four hours a day and seven days a week, that the fare is low and varies predictably with demand, and that the wait for a ride is usually not long.

But the critical difference is that robotaxis will not necessarily be run by a government. If they are profitable, then they will attract corporations—or even just one monopolist—aiming to maximize profits. How could these companies be trusted not to take advantage of riders?

One solution to this problem is to bring robotaxis under public ownership. Another solution is to regulate robotaxi companies as utilities. Either solution would provide reassurance about service coverage, fares, and wait times. But they would do so at the cost of reducing competition and innovation.

We think it is possible for regulation to protect the public from monopoly abuse while still promoting competition. We propose transparent and rider-neutral fares and proactive planning for emergencies and other contingencies.

Transparent and Rider-Neutral Fares

In a competitive market, robotaxi companies will be price takers. They will charge the fare that other robotaxi companies are charging or lose market share. But in a concentrated market, robotaxi companies may engage in price discrimination. They may offer each rider an individually tailored fare just below their willingness-to-pay, so they can extract more surplus from riders who are willing to pay higher fares. And robotaxi companies may be able to make informed predictions about what each rider would be willing to pay based on data about their past choices or the choices of similarly situated riders.

This is what has happened in the TNC market. Uber’s increasing profitability has been fueled by increasing algorithmic price discrimination—sometimes called “personalized” or “surveillance” pricing.³²⁰

Price discrimination is not necessarily undesirable. In fact, if consumers are perfectly informed and perfectly rational, it can be economically beneficial.³²¹ A company that tailors its prices to individual customers will serve more customers than a company that charges every customer the same price. In economic terms, the price discriminating company expands output. These gains, though, come with complicated distributive effects.³²² Price discrimination transfers surplus from consumers to producers (and their shareholders), which can be a regressive transfer of wealth. But if low-income riders are more price-sensitive than high-income riders, price discrimination might benefit them by providing them with an individually-tailored fare that is lower than an untailored fare might be. From a social welfare perspective, it is hard to know whether the costs of price discrimination outweigh the benefits.

In general, the law does not ban price discrimination. Companies are free to tailor their prices, and customers can accept or reject them. But there’s always been one important exception to the general tolerance of price discrimination: the monopolization of a necessary good or service. The classic example is from the transportation industry: railroads.³²³ Suppose that a farmer needs to transport perishable crops to market and that the only feasible means to transport them is a railroad controlled by one company. If the railroad knows this and can discriminate on price, it will extract almost all the value of the crop, even if it results in the farmer suffering a net loss. In the moment, the farmer will still take the deal because the losses would otherwise be greater. But a farmer who anticipates the temporary monopoly trap will not grow the crop in the first place.

Now come back to robotaxis. A robotaxi company’s pricing algorithms may be able to infer which riders have given up their personal motor vehicles. A rider with access to a personal motor vehicle will have a relatively elastic demand for robotaxi rides. When the fare rises too high, they will drive instead. A rider without access to a personal motor vehicle will have an inelastic demand. When the fare rises, they will grudgingly pay it. An individual rider’s behavior—how often they see a fare and decide not to request a ride—will indicate whether they have alternative means of travel. And a robotaxi company with market power will charge the riders with no alternatives a higher fare. Riders who anticipate this trap will not want to give up their personal motor vehicle.

Common carrier regulation responds to the problem of temporary monopolization. As we saw in Part I, taxi regulation combined universal service, fare regulation, and restricted entry.³²⁴ The idea behind universal service was that every rider should receive the same service for the same per mile fare. Transportation companies could not engage in price discrimination. The problem with common carrier regulation, however, was that companies could not compete by offering lower fares. So they had little incentive to cut costs or innovate.

Policymakers should protect riders by requiring robotaxi companies to have transparent and rider-neutral fares. By “transparent fares,” we mean that robotaxi companies must submit the fare they charge for each ride to a public regulator. In California, the CPUC is already requiring robotaxi companies to submit basic information about each ride request and each ride, including the origin and destination points, the VMT during the ride, and the deadheading VMT before the ride.³²⁵ We would have companies submit one more data point: the fare charged.

By “rider-neutral fares,” we mean that robotaxi companies may not use data about an individual rider’s past choices in setting fares. They must charge the same fare to every rider requesting a ride from the same origin to the same destination under the same demand conditions. A company’s pricing algorithms may include the distance to be traveled and the expected deadheading miles to be traveled as a result of providing the ride. But pricing algorithms should not include information about the individual rider’s willingness to pay or any information that could be used as a proxy for the individual rider’s willingness to pay.

Transparent and rider-neutral fares would prevent robotaxi companies from engaging in price discrimination. A rider who gave up their personal motor vehicle would pay the same fare as a rider who kept theirs. And regulators would be able to track compliance easily. They could analyze the fare data to verify that rides with similar origin and destination points at similar times had similar fares. Rider-neutral fares would not mean that every rider pays the same per mile fare. Fares could still vary with travel demand, so regulation wouldn’t subsidize sprawl.

Unlike common carrier regulation, transparent and rider-neutral fares wouldn’t foreclose price competition. A new entrant would be free to enter the market and undercut the incumbent’s fares. In fact, transparent pricing might facilitate entry by letting a prospective entrant know what kind of fares

it would need to offer to be viable. The possibility of entry would preserve incentives to cut costs and innovate.

We anticipate three objections. First, it might be argued that transparent fares will facilitate tacit collusion. Robotaxi companies might find it easier to coordinate on an oligopoly fare if they knew exactly what their competitors were charging for every ride. We think that is right, but we doubt it will make much of a difference. Without transparent fares, robotaxi companies could simply collude, intentionally or unintentionally, through forms of direct or indirect algorithmic coordination.

Second, what if robotaxi companies replace individualized price discrimination with microtargeted group price discrimination? A robotaxi company could, for example, take into account historical demand in small geographic areas when setting fares. Your fares might not rise because you give up your car, but because your neighbors gave up their cars. We acknowledge that there’s a difficult tradeoff between the benefits of demand-variable pricing and the psychic costs of microtargeted price discrimination. It might make sense to limit the granularity of demand-variable pricing to census tracts or neighborhoods.

Third, what if one robotaxi company monopolizes the industry and just raises its fares across the board? The simple answer is that the high fares will attract other companies to enter the market—especially since those fares will be transparent and lock-in contracts will be banned. But this is not a complete answer because the combination of network effects and the high, fixed costs to enter the market may still slow entry, and high fares could cause hardship unless and until another company enters the market.

We would have policymakers use the credible threat of utility regulation to prevent abuse. Legislators could give regulators statutory authority to set fares if they deem it necessary to ensure affordable mobility. If a robotaxi monopolist raises its fares under a system of transparent and rider-neutral fares, everyone would be able to see that fares are rising, and a large portion of the population would have a stake. Regulators could then propose fixing fares. If the robotaxi monopolist took the hint and reduced its fares, problem solved. If it didn’t take the hint, regulators could impose more aggressive utility regulation. But we think utility regulation should be a last resort if competition does not lead to adequate service at acceptable fares.

Emergency Planning

One emotionally salient advantage of personal motor vehicle ownership is the perception of mobility during emergencies. If the forecast says you are in the path of a hurricane, you can board up the windows, pack your bags and pets, and drive to safety before the storm hits (assuming you can find a place to fuel or charge your car). Even if the chance of an emergency that would require evacuation is slim, knowing that you could escape might give you peace of mind. Robotaxi regulation needs to provide the same peace of mind as personal motor vehicle ownership.

San Franciscans now have good reason to worry that robotaxis will not be available in emergencies. On December 20, 2025, a fire at a Pacific Gas & Electric substation caused a widespread blackout.³²⁶ In large parts of the city, traffic lights went dark.³²⁷ Many of Waymo robotaxis stopped in the middle of the street, and some got stranded in intersections, blocking traffic.³²⁸ Waymo suspended its service and didn’t resume operation until the following day.³²⁹

Emergencies—including ones far greater than a blackout—could create many challenges: drastic changes to road environments, loss of communications, overwhelmed remote assistants and retrieval crews, mass dependency on robotaxis, and stopped automated vehicles becoming obstructions.

In the absence of regulation, robotaxi companies will have insufficient incentives to prepare for emergencies. As we saw above, they will likely maintain fleets with fewer vehicles than would be socially desirable in an emergency.³³⁰ A profit-maximizing robotaxi company will set the number of vehicles in its fleet by calculating when the marginal revenue gained by adding another vehicle would surpass the marginal cost. A fleet large enough to serve peak demand may include many vehicles that would sit idle during periods of average demand. The cost of storing, maintaining, and cleaning the vehicles that would be used only during peak demand could outweigh the revenue that they would generate.

Demand-variable pricing partially mitigates this problem. If a company can charge a higher per mile fare in peak demand, a larger number of vehicles will generate enough peak demand revenue to offset the losses in periods of average demand. But peak demand in non-emergency situations—the Tuesday morning rush hour—may still be a fraction of peak demand in an emergency.

More importantly, robotaxi companies will not be able to set fares at market prices in some emergencies because of “price-gouging” laws. Price-gouging is a special case of demand-variable pricing. In an emergency, demand for certain goods—water, food, gasoline—can spike. Sellers can temporarily raise their prices—sometimes exponentially—and profit from the increased demand.

Most states have enacted statutes that ban price-gouging. For example, a California statute provides that, if the government declares a state of emergency, a business may not raise the price of certain essential goods and services more than ten percent above the price it was charging before the emergency.³³¹ The statute contains an exception that lets a business increase its price above that level if it can “prove that the increase in price was directly attributable to additional costs” it had to pay as a result of the emergency and the price is not more than ten percent “greater than the total of the cost to the seller plus the markup customarily applied by that seller for that good or service.”³³²

The basic intuitions behind price-gouging laws are about fairness.³³³ Sellers should not be able to take advantage of buyers in temporary monopoly situations: the gas station should not be able to charge you $100 a gallon as you are fleeing the storm. Fairness also suggests that the rich should not be able to hoard scarce necessities: in a pandemic, ventilators should be available to more than just billionaires.

Although price-gouging laws are popular with legislators, they are unpopular with economists. There are three standard criticisms. First, they reduce sellers’ incentives to stockpile inventory to prepare for emergencies and to increase production during emergencies.³³⁴ Second, they encourage consumers to hoard rather than just buying what they need.³³⁵ Third, they allocate goods and services to buyers who show up first instead of buyers with a higher willingness to pay (plus, of course, the actual ability to pay).³³⁶

Repealing price-gouging laws—or exempting robotaxi companies from those laws—would create an incentive to maintain larger fleets for emergencies. But this salutary incentive must be weighed against the cost to peace of mind: people who fear that they will be price-gouged in an emergency will be less likely to give up their personal motor vehicles.

Policymakers can instead solve the problem of robotaxi service in emergencies by ensuring that the industry as a whole maintains a fleet that is sufficient to serve the state’s emergency plans.³³⁷ Emergency management officials could determine the overall size of the fleet. Then robotaxi regulators could periodically apportion responsibility to individual companies according to their market share. The fleet would need to be “available”—ready to deploy on demand. The state could provide a subsidy to each company equivalent to the loss they incur from maintaining these additional vehicles. Alternatively, regulators could create incentives that reward dynamic expansion capacity. This extra capacity might simply include more robotaxis. But it could also include ready and reliable access to buses and, if those buses are conventional, human drivers.

In some emergencies, public authorities need to mandate evacuation. If a significant portion of the population relies on robotaxis, robotaxis need to be part of the evacuation plan. Emergency management officials should be given the authority to temporarily control how robotaxis are deployed in an evacuation. Robotaxi companies should be required to prioritize ride requests within an evacuation zone and to offer evacuation rides for free. Public authorities can reimburse the companies for the cost of providing the service.

Emergency management officials and robotaxi regulators should not wait until an emergency arises to verify if robotaxi companies can meet their obligations. They should require that robotaxi companies—as well as providers of automated driving for personal motor vehicles—participate in simulations in which they test how companies would respond to different types of emergencies. These simulations would serve as an audit to confirm that robotaxi companies maintain a sufficiently large available fleet and have robust break-the-glass operational plans that account for abnormal roadway conditions, disrupted connectivity, staffing shortages, and other logistical impediments.

These simulations should highlight details that might otherwise be overlooked. Will the kind of all-electric fleet that we encourage in this Article suffice in an evacuation? Will robotaxis still function if roadways become unidirectional, if thousands of officers are manually directing drivers at hundreds of intersections, if debris or water is covering roads, and if communications are down (or if remote assistants are overwhelmed)? If not, will these vehicles block roads in a way that further stymies evacuation and emergency response? Careful emergency planning will help build confidence that it is safe to live without owning a personal motor vehicle.

IV. Redesigning Mobility

It is easy to envision how robotaxis might fail as a business.³³⁸ They might not achieve an acceptable level of safety or a sufficiently lucrative ODD. They might not become cheap enough to compete with traditional taxis and TNCs. They might successfully compete with these modes in high demand areas but not provide a service that is convenient or reliable enough to replace personal motor vehicles. Indeed, as personal motor vehicles have generally proven more popular than taxis in many parts of the country, automated personal motor vehicles may prove to be more popular than robotaxis.

But what if robotaxis succeed as a business? What if they become sufficiently safe, convenient, reliable, and affordable that they serve the mobility needs of most of the residents of some metropolitan areas? That would create the opportunity to redesign our transportation system. This topic merits its own article. Here we just touch briefly on three issues: liberating land, refocusing transit, and expanding access.

A. Liberating Land

Most U.S. cities are oriented around the automobile. Even in the densest neighborhoods, some of the most valuable land is used for parking lots and garages. Most streets are designed to prioritize automobile use—more lanes for motor vehicles and curbside parking, less space for the cyclists and pedestrians who are relegated to both the literal and the metaphoric margins of the transportation system. And only a few U.S. cities have mass transit that serves enough of the travel demand with enough frequency, speed, and reliability to compete with personal motor vehicles.

Urban planners have long argued that cities do not have to be like this. Tokyo’s transit is so fast, frequent, extensive, and reliable that the city has about 0.32 motor vehicles per household. Copenhagen’s streets are so safe and convenient for cyclists and pedestrians that 49% of commuters travel by bike. And in New York City, despite decades of neglect, the subway is still useful enough that 56.7% of households do not own a car.³³⁹ It is important to recognize that space is a limiting factor: if cars had more space, there would be more cars.

Some urban planners are skeptical about the deployment of automated vehicles (including personal motor vehicles as well as robotaxis) precisely because they think automated driving will entrench the automobile, set back fragile gains for cyclists and pedestrians, and undermine support for transit. And some of their fears are grounded in facts. For over a decade now, pundits have been invoking a self-driving future to oppose investments in other modes of transportation.³⁴⁰

We think that robotaxis have the potential to preserve what people like about the automobile without requiring cities to revolve around the automobile.

Cities could start by changing the economics of parking. As many have explained, free parking is at the root of many urban problems, from the high cost of urban construction to suburban sprawl.³⁴¹ In recent years, some states and cities have repealed laws that mandated a minimum number of parking spaces for certain land uses. But in most cities, politicians are reluctant to abolish parking requirements or charge a market price because many of their constituents rely on personal motor vehicles. And those vehicles spend most of the day in parking.

Robotaxis will spend most of their days moving, so the companies that own them can maximize their revenue. Even overnight, robotaxis can be used to transport goods. When robotaxis stop for charging, cleaning, and maintenance, they can be compactly stored on private property.³⁴² If robotaxis succeed, much of the urban land we currently devote to parking lots and garages can be converted to apartments, stores, and parks.

If people have access to a wide range of robotaxis, they will no longer need to own a single vehicle that does everything and goes everywhere. If you need (or believe that you might at some point want to use) a pickup truck, then you might buy a pickup truck. And once you own it, especially if you own no other motor vehicles, you will expect to be able to drive it and park it everywhere. But if you have access to a robotaxi truck or can take a reliable robotaxi to reach a conventional truck located outside the city, then it may not be necessary to drive your own truck everywhere. This may give communities much more flexibility in reimagining themselves.

Redesigning streets is key.³⁴³ Robotaxis will not need to park at the curbside—though they will need space to pull over to pick up and drop off riders. Robotaxis may also be able to serve the same travel demand with a smaller fleet—especially if they become as familiar as an elevator. This could give cities an opportunity to reclaim street space for protected bike lanes or wider sidewalks. And robotaxis are likely to be friendlier to cyclists and pedestrians in a way that could facilitate living streets with mixed modes.

B. Refocusing Transit

Cities could also rethink how they invest in transit. An important advantage of transit is throughput. More people can fit on a subway car or a bus than in a set of cars that occupy the same space.³⁴⁴ Far more commuters in New York can travel from Harlem to Midtown at rush hour on the subway under Lexington Avenue than in traffic on the street above it.

Robotaxis might not change the logic of throughput. It is possible that robotaxis could increase vehicle capacity (if the vehicles have closer lateral and longitudinal spacing, smoother flows, or fewer crashes) and otherwise increase person capacity (if people share rides). They likely will not, however, compete with the Lexington Avenue subway in the foreseeable future.

But most transit in the United States is not like the Lexington Avenue subway, which runs with two-minute headways at rush hour. Some transit agencies operate buses or trains that run every half hour or less. Some run buses that are mostly empty—and that may be stuck in congestion caused primarily by single-occupant vehicles. Some of these low-throughput transit lines may be justified given the realistic alternatives, but it is possible we can do better.

If robotaxis are cheap enough to replace personal motor vehicles, they may be able to replace low-throughput transit lines—provided that policymakers continue to subsidize low-income riders who relied on those lines.

C. Expanding Access

Mobility creates positive externalities. We benefit not just when it is easier for us to travel, but when it is easier for our friends, family, and coworkers to travel—provided that the negative externalities are managed. Current transportation policy is full of subsidies, both obvious and hidden. Many of those hidden subsidies perversely encourage personal motor vehicle ownership,³⁴⁵ but some are worth keeping. If robotaxis start to replace other modes of travel, to what extent should governments subsidize robotaxi rides for those whose mobility needs would not be adequately served by the market? We consider three issues: people with low incomes, people with disabilities, and sparsely populated areas.

People with Low Incomes

The case for subsidizing the mobility of people with low incomes is straightforward. Mobility enables economic opportunity, educational advancement, and civic participation. Targeted mobility subsidies can reduce economic inequality and increase social mobility.

Existing policy subsidizes the mobility of low-income people with both implicit and explicit subsidies (while, in other ways, increasing the price of that mobility). The implicit subsidy is providing transit to the general public at fares below the cost of providing the service.³⁴⁶ Everyone can benefit from the low fares, but riders with modest incomes may benefit the most. The explicit subsidy is providing discounted fares for low-income riders.³⁴⁷ (The price increase comes in part from the land use policies, discussed above, that push low-income people far away from city centers.)

A subsidy designed to improve the living standards of low-income people raises the question: is a targeted subsidy superior to an unrestricted cash transfer? An unrestricted cash transfer respects autonomy by letting recipients decide for themselves how they want to allocate their budget. They might want to spend less on transportation than their share of a mobility subsidy would provide. A targeted subsidy would distort spending away from what some recipients would prefer.

We acknowledge the force of the critique, but we think targeted mobility subsidies to low-income people are smart politics. Unrestricted cash transfer programs are hampered by the (likely false³⁴⁸) perception that the recipients will squander the money. One critical advantage of transportation subsidies is that voters understand that transportation is a necessity, so they can trust that the money will be put to good use.³⁴⁹

Legislators should enact a means-tested subsidy for robotaxi service. The right time to adopt this subsidy is when robotaxis start to replace low-throughput transit. Low-income people who relied on those routes will need a substitute, and robotaxi fares may be higher than transit fares. A similar argument can be made for low-income people who rely on personal motor vehicle ownership at the time that on-street parking becomes less available or more expensive. They may not be able to afford the increased cost of private parking, so subsidized robotaxi service may be the only realistic replacement. Even a modest subsidy could be consequential for the mobility of people with limited means.

People with Disabilities

For people with disabilities, subsidies need to take a different form. At the outset, it is important to recognize the incredible diversity among people with disabilities. A person who is blind may have very different mobility challenges than a person who uses a wheelchair. People who use wheelchairs may also have very different mobility challenges depending on their other abilities (such as significant upper-body strength and agility) or disabilities (such as deafness or mental impairment).

So, we might start—but cannot end—this discussion with people who use electric mobility scooters or other devices that cannot easily get or fit into conventional vehicles. They need access to spacious vehicles with a ramp or a lift, sometimes called Wheelchair Accessible Vehicles (“WAVs”).

As we mentioned in Part I, California has attempted to expand mobility by requiring TNC riders to contribute five cents per trip to the TNC Access for All Fund.³⁵⁰ The CPUC is directed to distribute those funds to businesses or nonprofits that provide transportation to people with disabilities, especially people who require a WAV.³⁵¹ A TNC can avoid charging the fee if the CPUC determines that it is providing a sufficient level of WAV service.³⁵² And the CPUC can also offset the amount due by the amount a TNC invests in improving its WAV service.³⁵³

The introduction of robotaxis creates an opportunity to redesign vehicles to make them more accessible. It may be feasible to require that all robotaxis be WAVs. Then regulators would not have to monitor the level of service provided to people with disabilities, as the CPUC is doing now. They would receive the same service as everyone else—that is, unless they need the assistance that bus, paratransit, and taxi drivers often provide as an official or unofficial part of their jobs.

It is possible, though, that the cost of making every robotaxi a WAV will prove prohibitive. In that case, legislators could adopt a policy like California’s. Either taxpayers generally or robotaxi and TNC riders specifically could contribute to a public fund. Then regulators could offer those funds to companies that operate WAVs. The downside of this approach is that regulators would need to monitor service levels to make sure that riders who need WAVs aren’t enduring unreasonable waits.

NHTSA can encourage the development of accessible robotaxis today. As we saw in Part I, companies introducing automated vehicles that do not meet NHTSA’s Federal Motor Vehicle Safety Standards need an exemption from the agency.³⁵⁴ NHTSA could announce that it will prioritize exemption requests for automated vehicles that are also WAVs³⁵⁵—a small step that nonetheless may have an important signaling effect. That might persuade some ADS developers to experiment with more accessible vehicle designs. And, if and when it is clear that accessible robotaxis are financially viable, regulators should mandate them.

Sparsely Populated Areas

The case for subsidizing mobility in sparsely populated regions is more complicated. Policymakers have long sought to diminish geographic disparities in the availability and price of transportation service. In taxi regulation, the combination of entry restrictions and universal service requirements ensures that the profits taxis make in high demand areas cross-subsidize service in low demand areas.³⁵⁶ Transit budgets often work similarly. Very few transit lines manage to break even on farebox revenue alone. But that revenue plus subsidies based in part on ridership numbers support less popular routes in sparsely populated areas.³⁵⁷

In the absence of subsidies, robotaxis are more likely to be deployed—and likely to be cheaper on a per mile basis—in places with high travel demand. This dynamic plays out on two levels. On a local scale, robotaxis are likely to be cheaper in cities than in their surrounding suburbs and exurbs. On a national scale, robotaxis are more likely to be deployed in large metropolitan areas than in smaller metropolitan areas or rural areas.

The policy case for local, place-based subsidies is weak. If the deployment of robotaxis reduces the absolute per mile cost of travel, it will increase demand for longer trips. That could facilitate commutes to city centers from suburbs and exurbs and shift development to places where it will have a greater environmental impact. This is how robotaxis might encourage sprawl.³⁵⁸

But that analysis is incomplete. Even if actual and perceived travel costs were to decline overall, shorter trips in densely populated areas are still likely to cost less than longer trips in sparsely populated areas. Robotaxis might also enable “distributed density”—more dense pockets of development within already urbanized areas—if land use regulation can be liberalized to allow it.³⁵⁹ If, however, a government attempts to equalize the per mile cost of travel, it will be effectively subsidizing sprawl.

It might be argued that local, place-based subsidies will help low-income neighborhoods. In some U.S. metropolitan areas, average incomes are higher in the city than in the surrounding suburbs and exurbs. But if the policy goal is subsidizing mobility for low-income people, the most efficient intervention is means-based subsidies, not place-based subsidies.

There may, however, be a political justification for local, place-based subsidies. If cities make driving or parking more expensive, they may face opposition from suburban commuters. The opposition might be particularly intense if suburbanites pay much higher per-mile fares for robotaxis and are thus less willing to replace their personal motor vehicles. In that case, place-based subsidies could be a kind of compromise: suburbanites give up their cars, and in exchange they get cheaper robotaxi service. But the cost of the compromise is encouraging sprawl.

The case for subsidies at the national level is different. In the absence of subsidies, large metropolitan areas might switch to robotaxis while smaller metropolitan areas and rural areas remain dependent on personal motor vehicles. If the primary advantage of robotaxis is economic, this might be an acceptable outcome. Even the most zealous transit advocates do not call for subways to be built under Topeka, even though it might expand mobility. But we can see a case for subsidizing robotaxis in less dense regions if robotaxis provide other benefits and if subsidies provide an important and preferably temporary boost over a critical adoption hump.

More broadly, these risks and opportunities are also why we advocate for more holistic and whole-stream approaches, such as a carbon tax that is collected and rebated per capita, that empower people to make their own choices while simultaneously reducing the externalities that distort those choices.

Conclusion

We recognize that some advocates are skeptical about robotaxis.³⁶⁰ They have been working to build a transportation system that relies less on cars and more on walking, biking, and mass transit. They worry that the deployment of robotaxis will undermine those efforts and entrench the automobile. And they do not want the transportation system to privilege the interests of large automakers and other tech companies.

We share these concerns. We recognize what Zipcar’s founder has described as a choice between “heaven or hell”³⁶¹—and the many gradations between those two extremes. Automated driving is like the internet: a tool that opens up possible futures, some better and some worse.³⁶² Its use can and should be subjected to democratic control. With careful regulation, the introduction of robotaxis can liberate cities from the worst effects of the automobile—and thereby save lives, expand mobility, and make cities more livable.

99 S. Cal. L. Rev. 603

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Bryant Walker Smith* & Matthew T. Wansley†

* Associate Professor of Law and Engineering, University of South Carolina.
† Professor of Law, Cardozo School of Law. We thank Amitai Bin-Nun, Hannah Bloch-Wehba,
Jill Fisch, Eric Goldwyn, Phil Koopman, Mark Lemley, Jared Mayer, Gerard Magliocca, Michael Pollack,
David Schleicher, Ganesh Sitaraman, Stew Sterk, Brad Templeton, Marshall Van Allstyne, William
Widen, Katrina Wyman, Jinhua Zhao, and participants at the 2025 American Law and Economics
Association Annual Meeting and the 2025 MIT Mobility Initiative Vision Day for helpful suggestions.
We thank Camila Schaulsohn for her valuable research assistance and the editors of the Southern
California Law Review for their thoughtful editing.

Quis Custodiet Ipsos Custodes: Labor & Privacy in the Age of Kidfluencers and the Internet’s Stage Mothers

March 2026March 2026Elinor J. Haddad*

INTRODUCTION

In 2022, a group of minors sued Tiffany Smith, mother and producer of prolific child influencer Piper Rockelle, and her corporation Piper Rockelle Inc. (“PRI”), alleging nineteen claims in total, nearly all for violations of either state tort law or the California Labor Code.¹ The minors had previously appeared in monetized content on Rockelle’s YouTube channel, which then boasted over 8.5 million followers,² as part of a group of children self-nicknamed “the Squad.”³ According to their complaint, they devoted long hours—in some cases more than twelve hours a day for seven days a week⁴—over three years to producing “hundreds” of “highly lucrative” videos but were never compensated, were denied meal and rest breaks while filming, and did not receive regular on-set education.⁵ Following the suit’s initial filing, YouTube demonetized Rockelle’s channel, and venues where Rockelle had upcoming tour dates canceled her appearances.⁶ In 2023, Smith countersued for $30 million, accusing plaintiffs and their parents of defamation, fraud, and extortion; before plaintiffs responded, Smith dropped her lawsuit.⁷ In March 2024, a Los Angeles Superior Court judge denied Smith’s motion for summary judgment, thus scheduling the case for trial.⁸ By October 2024, the parties had settled for $1.85 million.⁹

The suit illustrates the potential for severe damage inherent in the world of child influencers—a world that is, as of now, largely unregulated. The plaintiffs in the suit, and Rockelle herself, represent a common demographic among child influencers (“kidfluencers”): children between ten and sixteen years of age with public, monetized accounts on large social-media platforms like YouTube, Instagram, and TikTok, and talent and training in skills like dancing and singing as well as video editing and other skills required for content creation. Between 2017 and 2020, the plaintiffs appeared in content on Rockelle’s YouTube channel and on her accounts on other platforms; while Rockelle’s early postings were relatively innocuous (videos with titles like “My trip to the Los Angeles Zoo”¹⁰ and “Getting a pet turtle!!!”¹¹), the channel’s tone quickly took a questionable turn, with videos featuring children performing skits, challenges, and pranks in various stages of undress and in suggestive situations accompanied by clickbait thumbnails and titles¹² such as “24 HOURS HANDCUFFED to my ‘BOYFRIEND’ ” (featuring a then-ten-year-old Rockelle),¹³ “11 YEAR OLD BELLY PIERCED **PRANK** (Can’t Say No 24 Hour Challenge) 🚫👌,”¹⁴ and “Asking STRANGERS To Be My BOYFRIEND Challenge **1 DATE = $100** ❤️💵” (featuring a then-twelve-year-old Rockelle).¹⁵

Using the Piper Rockelle lawsuit (“the PRI lawsuit”) as a case study,¹⁶ this Note will focus on the growing number of kidfluencers and the need for standardized, federal laws ensuring their fair labor conditions and preservation of personal privacy. In particular, this Note will discuss the inadequacy of federal and state regulation of two forms of exploitation that present concerns in the kidfluencer context: (1) labor (exploiting a child’s work without compensation, meaningful consent, or regulation) and (2) privacy (exploiting a child’s image or likeness without compensation and meaningful consent).¹⁷ Part I of this Note presents an overview of the kidfluencer phenomenon and the evolution of stage parents from vaudeville and the early motion picture industry to the Internet and social media. Part II describes kidfluencers’ vulnerability to labor exploitation, discussing how measures protecting child performers remain largely unavailable to kidfluencers and require expansion to cover this new demographic of child workers. Part III details the rampant exploitation of kidfluencers’ privacy and analyzes how the increasing legal spotlight on protecting children as social-media users has yet to acknowledge kidfluencers’ privacy and publicity interests and must do so to adequately protect them. Part IV proposes that, in addition to enacting laws to protect the labor and privacy rights of kidfluencers, Congress should empower social-media platforms as enforcers of kidfluencer laws and impose liability on platforms that host content produced in violation of these recognized kidfluencer rights. Ultimately, this Note presents a holistic set of common-sense regulations, grounded in analogous, existing law, that are designed to close the critical gaps in kidfluencer protections as quickly and effectively as possible. This all-encompassing approach—covering both privacy and labor—to regulating children in monetized content is essential given the pervasiveness of their online presence and the reality of ever-advancing online technology that is here to stay.

I. THE ARRIVAL OF KIDFLUENCERS

The influencer economy is worth over $250 billion worldwide¹⁸ and is expected to swell to $480 billion before the year 2030.¹⁹ U.S. brands spend more than $5 billion on influencers each year.²⁰ Massive content-sharing platforms like YouTube, Instagram, and TikTok host millions of influencers who then share content to millions more subscribers.²¹ On YouTube, influencers creating and sharing videos on their “channels” earn revenue based on the number of views their videos generate. When a YouTube channel is monetized, YouTube collects forty-five percent of advertising revenue from the creator’s videos, and the creator receives the remainder.²² With this formula, top creators earn tens of millions of dollars each year—and kidfluencers with at least one million followers can earn $10,000 or more for each sponsored post they share.²³ Before the onset of the PRI lawsuit, PRI made between $4.2 million and $7.5 million annually from social-media advertising alone, and the PRI plaintiffs averaged up to $28,000 per month in YouTube revenue.²⁴

And kidfluencers are a fast-growing demographic in monetized social-media content.²⁵ Social-media accounts listed in children’s names but managed by parents (typically with a moniker like “Managed by Mom” in the account biography) feature young children almost exclusively, with little to no regulations governing the children’s compensation, working conditions, or content output. Thus, children can work extensive hours, receive little to no formal schooling, and have their intimate details shared on the Internet at-large with essentially no recourse and no safeguarding of their earnings from parents or other adults controlling their accounts. Many kidfluencer accounts boast massive followings, with subscribers in the hundreds of thousands or even millions, and the financial payout is huge. Roughly a century ago, states began regulating labor conditions for child performers, many of whom were pushed into the entertainment industry by their parents and subsequently experienced extensive exploitation.²⁶ Now, social media has given stage parents a new arena—one with novel and potentially catastrophic dangers if left unchecked.

A. A Brief History of Stage Mothers

The concept of “stage parents” and “stage mothers” enjoys a long and controversial history in American culture.²⁷ Early discussion of overbearing and even abusive parents pushing their children into careers on stage and in film arose from personal anecdotes of early film stars. Legendary movie star Judy Garland often recounted growing up on a vaudeville stage in the 1920s and 1930s, and the intensity with which her mother, Ethel Gumm, pushed her to perform; in a 1967 interview, Garland, recalling her early days of performing onstage, stated, “[My mother] would sort of stand in the wings . . . and if I didn’t feel good, if I was sick to my tummy, she’d say, ‘You get out and sing, or I’ll wrap you around the bedpost and break you off short!’ So, I’d go out and sing.”²⁸ Garland, cemented in American culture by her performance as Dorothy in 1939’s The Wizard of Oz, later characterized her mother as “the real Wicked Witch of the West” and described how Ethel began giving her pills to increase energy or to promote sleep before Garland’s tenth birthday.²⁹

Nearly a century and the passage of much legislation for child performers later, stage parents like Ethel Gumm remain, motivated by many of the same interests—money, fame, power, attention—as their twentieth-century counterparts. These interests can easily collide with children’s needs, and the development of laws protecting child actors demonstrates a commitment by the traditional entertainment industry to limiting the effects of such conflict. Today, child actors in multiple states, including California and New York, and members of entertainer unions like SAG-AFTRA have protections that Judy Garland’s generation did not, such as guaranteed access to wages, adequate education, and limitations over working hours.³⁰ These regulations acknowledge both the potential conflict of interest between stage parents and child performers as well as the reality of children as a key and enduring presence within the entertainment industry. But while child actors today are more protected from parents who squander their earnings or force them to work oppressively long hours, children are still at the mercy of their parents as to whether they ultimately pursue an entertainment career in the first place and, if they do, the relentlessness of that pursuit.

In 2022, former child star Jennette McCurdy released her memoir I’m Glad My Mom Died. Chronicling her ascent from poverty to fame on the highly successful Nickelodeon show iCarly, McCurdy detailed her late mother’s longstanding obsession with McCurdy’s success as a child actor, regardless of McCurdy’s own disinterest in such a career. Recalling the initial signing meeting with her first agent, McCurdy wrote,

“It’s important that Jennette wants to act, in order for her to do well,” [the agent] says.

“Oh, she wants this more than anything,” Mom says as she signs on the next page’s dotted line.

Mom wants this more than anything, not me. [Auditioning] was stressful and not fun, and if given the choice, I would choose to never do anything like it again. On the other hand, I do want what Mom wants, so she’s kind of right.³¹

McCurdy emphasized her lack of agency and meaningful choice in embarking on her career as an actor, framing her mother’s eventual death from cancer as the catalyst that allowed McCurdy to leave behind the career she never wanted—though she could not as easily escape her fame.³²

When I was six years old, she pushed me into a career I didn’t want. I’m grateful for the financial stability that career has provided me, but not much else. I was not equipped to handle the entertainment industry and all of its competitiveness, rejection, stakes, harsh realities, fame. I needed that time, those years, to develop as a child. To form my identity. To grow. I can never get those years back.³³

B. Reality Television Bridges the Gap from Film and Television to the Internet

In 2011, the Lifetime reality series Dance Moms premiered, unwittingly marking the beginning of a new era and a new medium for twenty-first-century stage parents. Following a group of young competitive dancers and their intense and argumentative mothers, Dance Moms became an overnight sensation and launched the show’s young dancers into stardom. In the show’s early seasons, the dancers’ mothers spoke of their hopes for their children to achieve careers on a Broadway stage and in film.³⁴ In 2011, Instagram was in its infancy and the advent of TikTok was years away; a handful of hit reality shows featuring children, like Jon and Kate Plus 8 and the ill-fated 19 Kids and Counting,³⁵ existed but the children on those shows were not positioned adjacent to entertainment careers and also had not built independent followings or fanbases—the concept of kidfluencers was entirely new. Dance Moms changed the game.³⁶

Today, the original Dance Moms dancers are in their early to mid-twenties and their primary careers are as social-media influencers.³⁷ Instead of becoming “stars” in a traditional sense on stage and in film, the Dance Moms girls achieved stardom as themselves, beloved by young fans of their show who flocked to follow them on social media as Instagram and other platforms simultaneously took off.³⁸ While the first Dance Moms dancers did not begin their time on the show imagining kidfluencer fame, cast members during the show’s later seasons arguably did. In 2016, a group of younger dancers joined the now-wildly successful Dance Moms cast; entering the show in the post-Instagram and Musical.ly (TikTok’s forerunner application) world, these new dancers had social-media pages ready when the show’s global audience began following them in droves. Now teenagers, many members of Dance Moms’ second generation work as kidfluencers today³⁹—and the world of kidfluencers and reality child stars is a small one. Dance Moms’ second generation includes seventeen-year-old Lilliana Ketchman and eighteen-year-old Elliana Walmsley. Ketchman was named by the PRI plaintiffs as a perceived competitor to Rockelle, “anger[ing]” Smith; the plaintiffs believed Smith subsequently used “dirty tactics” to cause a significant decline in Ketchman’s followers, viewership, and revenue in January 2021.⁴⁰ Meanwhile, Walmsley is a former member of Rockelle’s Squad, though she was not a party to the PRI lawsuit.⁴¹

Image 1. Former Dance Moms Cast Member and Current Influencer Kendall Vertes’s Instagram⁴²

Image 2. Former Dance Moms Cast Member and Current Influencer Chloé Lukasiak’s Instagram⁴³

Barely a decade after Dance Moms’ premiere and Instagram’s launch, kidfluencing is now eclipsing the once-well-trodden paths to child stardom found on television and in film. Piper Rockelle exemplifies this phenomenon:

Paparazzi don’t wait outside Piper’s fuchsia-painted mansion in the San Fernando Valley, but among a young, YouTube-fixated demographic, the ebullient brunette is idolized. As a rising star on the most-watched video-content platform of her generation, Piper bypassed the traditional paths of Nickelodeon and Disney to become a millionaire through the monetization of her social media content.

Propelled by the force of millions of likes and heart emojis, Piper was making between $4.2 million and $7.5 million a year before the Squad’s lawsuit. Her YouTube videos had amassed over 1.87 billion views, and companies such as NBCUniversal, Disney and Amazon were paying her to promote their products on Instagram and TikTok. Super-VIP tickets on her tour—a live variety show that trades on the Squad’s online personas—went for $599.99. She was also selling merchandise on her website, offering personalized greetings via Cameo and making music. She has released seven singles.⁴⁴

The PRI “empire[],” much like many YouTube money machines, “was built at home.”⁴⁵ Smith’s live-in boyfriend, Hunter Hill, also a defendant in the PRI lawsuit, filmed and edited the Squad’s videos in the Smith home, and Smith planned video content and coordinated filming schedules for Squad members.⁴⁶ Initially, Rockelle and other members of the Squad sought success as actors on stage and in film; after her social-media channels took off, however, Rockelle narrowed her focus solely to kidfluencing, while Smith “strongly discouraged” other Squad members from continuing to pursue work beyond their growing YouTube empire.⁴⁷

And though stage parents like Smith are pursuing fame for their children in a new medium, the same conflicts of interest between parents and children that persist in film and television recur in the Internet-child-stardom era. In the early 2000s, the challenges of living in poverty colored Jennette McCurdy’s high-stress journey into the television industry; just a few years later, PRI would allegedly take advantage of children also coming from limited means in order to profit from their involvement in the Squad. Said one PRI plaintiff, “[s]ingle mothers using YouTube to support the family—there’s a lot of those in the [Squad’s families].”⁴⁸

While the PRI lawsuit is seemingly unique (as of now) in terms of its size and the breadth of the allegations at-issue, Rockelle and the Squad are in good company as part of a vast, bankable movement of kidfluencer content creators. Kidfluencer accounts are undeniably popular: a 2019 study revealed that videos featuring a child younger than thirteen-years-old receive three times the views garnered by videos without children.⁴⁹ And critics of the kidfluencer phenomenon say that platforms like YouTube, as well as brands that partner with kidfluencers for paid product placements, are deliberately skirting child labor laws because of kidfluencer accounts’ popularity and payoff; in their view, the legal gray area surrounding kidfluencers enables platforms and brands to make “billions” from kidfluencer content while avoiding the costs and coordination that film and television productions are legally required to undertake to work with child performers.⁵⁰ YouTube currently makes it fairly easy, with strategic use of algorithmic tools like hash-tagging, to achieve monetized status, requiring that channels reach just 1,000 subscribers and 4,000 viewing hours within twelve months to become monetized; as of last year, YouTube hosted roughly two million monetized accounts.⁵¹

Between YouTube, Instagram, and TikTok, opportunities for children to build a massive online presence—and for adults to make serious money off their backs—are exploding. As the last century of developing adequate legal protections for child actors demonstrates, this level of financial promise coupled with children as the key moneymakers is a recipe for exploitative disaster. Now that the recipe has found a new home on the Internet, the potential for lifelong damage to the children behind the money machines has reached devastating levels. The baby steps that some lawmakers are beginning to take toward protecting, primarily, kidfluencers’ compensation are, to be sure, essential regulatory efforts. But the reality of the kidfluencer world demands a much more all-encompassing approach—one that treats kidfluencers as the professionals they are and treats the Internet as the uniquely permanent and wide-ranging medium it is. Making parents the unchecked shot-callers over their children’s labor conditions and privacy is an untenable arrangement because of the potential conflict of interest inherent in parents choosing between substantial monetary gain and their children’s best interests. Kidfluencers and the Internet (much like child film stars and the motion picture industry as seen a century ago) are not going anywhere. So, lawmakers must get serious about how to regulate them.

II. REGULATING THE LABOR OF KIDFLUENCERS

While federal law does provide some protections for child labor, it expressly exempts child performers from those protections. Thus, to the extent that child entertainers receive protection from labor exploitation, those protections come either from state law or from unions for media professionals such as SAG-AFTRA. However, summarizing what relevant federal law is present in this area helps contextualize the gaps in child entertainer regulations that state laws and unions have had to attempt to fill. And while neither state laws (for the most part) nor unions protect kidfluencers’ labor rights, they do protect child entertainers and thus provide helpful and relevant models for what effective legal protections for kidfluencers’ labor should entail.

Only a handful of states have laws governing child entertainers, and the most stringent laws exist in California and New York; both states limit child entertainers’ working hours, regulate their education, mandate their on-set supervision and advocacy, and protect their wages. All of these regulations should be expanded to cover kidfluencers; further, because kidfluencers primarily work at home and thus are not restricted by a need to live within range of entertainment hubs like Los Angeles and New York City, these regulations should apply to kidfluencers in every state through federal legislation. Recent legislation in California, Illinois, Utah, and Minnesota protecting primarily kidfluencers’ wages, while helpful, is but one small piece of the comprehensive regulatory scheme needed to adequately protect kidfluencers’ labor.

A. Existing Labor Regulations for Child Entertainers

1. Federal Measures for Child Workers: The Fair Labor Standards Act

In 1938, the Fair Labor Standards Act (“FLSA”) marked a new era for regulation of child workers. Setting the minimum age of employment for most non-agricultural work at sixteen,⁵² the act came on the heels of the United States Supreme Court striking down laws aimed at regulating commercial goods produced by child workers in Hammer v. Dagenhart⁵³ and the Child Labor Tax Case.⁵⁴ These decisions were but one component of a long struggle by labor reformers to protect child workers—by the twentieth century, reformers heavily emphasized how child labor led to extensive health problems and the deprivation of adequate education.⁵⁵ In developing their platform regarding child labor, advocates also had to reckon with the difficult but inescapable reality that many child workers came from immense poverty. Some reformers lobbed heavy criticism at parents who they claimed were “too lazy to work” and had “become accustomed to subsist[ing] by their children’s labor.”⁵⁶

The FLSA still has multiple exemptions, some critical to child entertainers and kidfluencers alike: the FLSA exempts from regulation “a parent employing his own child”⁵⁷ and does not apply to “any child employed as an actor or performer in motion pictures or theatrical productions, or in radio or television productions.”⁵⁸ The latter exemption is known as the “Shirley Temple Act” because without it, the then-wildly popular child star would have disappeared from movie screens.⁵⁹ Further, the lawmakers behind the FLSA did not consider entertainment work especially hazardous or oppressive, unlike the dangerous factory and agricultural labor the FLSA was intended to address, and thus excluded minors in entertainment from coverage.⁶⁰ Due to this exclusion of child performers from federal regulation, labor rights for child performers fall under state law, and states have adopted a variety of protections (including, in seventeen states, no protections at all) for this demographic.⁶¹

2. SAG-AFTRA, States’ Approaches & the Coogan Law

Some of the most comprehensive protections for child entertainers come from SAG-AFTRA, the primary union for media professionals in the United States. SAG-AFTRA’s collective bargaining agreements with production companies require that companies adhere to the standards delineated in SAG-AFTRA’s contracts as well as applicable state law regarding employment of minors.⁶² Thus, SAG-AFTRA functions as the enforcer of its own standards for employing child performers; its collective bargaining agreements act as a bottleneck against potentially negligent or exploitative employment practices because production companies that are SAG-AFTRA signatories must comply with these standards in order to employ children with SAG-AFTRA membership.⁶³ SAG-AFTRA restricts the working hours of child entertainers working anywhere in the United States, stipulating that minors may not work before 5:00 a.m. or after 10:00 p.m. on days preceding a school day (and may not work after 12:30 a.m. on mornings of non-school days); SAG-AFTRA further limits total working hours per school day to four hours for children ages six to eight, five hours for children ages nine to fifteen, and six hours for children ages sixteen and seventeen.⁶⁴ School days for SAG-AFTRA contract purposes conform to the public school calendar for the district where the minor resides, and SAG-AFTRA requires that school-age minors receive an average of at least three hours of educational instruction on school days.⁶⁵ Minors between six months and two years old may work up to two hours while minors between two and five years old may work up to three hours; only preschool-age minors do not attend on-set school.⁶⁶

SAG-AFTRA’s protections for child actors’ compensation also conform to applicable state law, where present.⁶⁷ Originally passed in California in 1939, the Coogan Law now requires that fifteen percent of all minors’ earnings for entertainment work be placed in a blocked trust account (known as a “Coogan Account”) accessible only by the minor once they reach adulthood.⁶⁸ The law’s namesake, child actor Jackie Coogan, enjoyed a tremendously successful career in the 1920s after being discovered by Charlie Chaplin.⁶⁹ But despite Coogan’s millions of dollars in earnings as a child star, he only ever received a weekly allowance of $6.25 from his mother until, when Coogan turned twenty-one, she ultimately refused to ever turn over more of his earnings to him.⁷⁰ Though intended to prevent exploitation like that Coogan suffered from befalling future young actors, the first iteration of the Coogan Law had critical gaps, including merely permitting, rather than mandating, trust accounts for child performers.⁷¹ It was precisely these gaps that enabled the parents of Shirley Temple herself to devote her earnings entirely to supporting their family of twelve even after the initial passage of the Coogan Law; after her acting career slowed down in her teenage years, the generation-defining star’s “only assets were a few thousand dollars and the deed to her dollhouse in the back yard [sic] of her parents’ Beverly Hills home.”⁷² California closed the gaps in its Coogan Law in January 2000 following advocacy by SAG-AFTRA for unequivocal legal recognition that minors’ earnings from entertainment work are their own.⁷³ Currently, New York, Illinois, Louisiana, and New Mexico all have trust-account mandates for child actors comparable to California’s Coogan Law.⁷⁴

Meanwhile, some states also have laws concerning child performers’ labor conditions in addition to compensation requirements and union protections. California mandates a maximum eight-hour workday for child entertainers in addition to three hours of on-set education for each weekday that children work; California also requires that a state-licensed teacher or welfare worker be present at all times on sets where child performers are working,⁷⁵ and that adults obtain permits before employing children and ensure that a minor’s parent or guardian is within their sight and hearing range at all times that the minor is on set.⁷⁶ In New York, employers of child entertainers working three or more consecutive days must provide a credentialed on-set teacher to ensure that state educational requirements for child entertainers are met.⁷⁷

3. When Does the Home Become a Set?

State laws protecting child entertainers, however well-established, largely do not extend to kidfluencers—even in states like California, which has very strict regulations for child performers⁷⁸ (PRI is located in Los Angeles and the Squad’s videos were filmed there⁷⁹). If we apply California and SAG-AFTRA’s labor regulations for child actors to PRI and the Squad, PRI—sometimes allegedly, other times admittedly—fell far short.⁸⁰ Smith did not obtain permits to work with the minors in the Squad.⁸¹ Some PRI plaintiffs claimed they worked up to twelve hours per day, seven days a week, without rest and meal breaks and without compensation.⁸² The mother of two plaintiffs, sisters, worried that one of her daughters “was falling behind in school because she wasn’t getting enough sleep” due to Smith’s demanding filming schedule.⁸³ Some of the plaintiffs’ parents alleged that Smith “regularly forbade other adults from being on set”;⁸⁴ Smith reportedly only ever “briefly” hired an on-set teacher for Squad members and “was uninterested in the children’s education,” even though none of the minors attended traditional in-person school during their years filming.⁸⁵ After some of the plaintiffs’ parents hired a private tutor to work with the minors in Smith’s guesthouse, Smith “barged” into the guesthouse mid-lesson, “screaming” that the child currently studying needed to “report to set immediately” and that “she didn’t care whether the tutor’s hour wasn’t up.”⁸⁶ The tutor left her position teaching the Squad after the incident.⁸⁷ Plaintiffs also reported that Rockelle herself had significant educational gaps, claiming Rockelle, who has only ever been homeschooled,⁸⁸ had trouble reading and “never” did schoolwork.⁸⁹

Commenting on the allegations in the PRI lawsuit regarding failure to provide compensation as well as the maintenance of an oppressive work environment, plaintiffs’ attorney Matthew Sarelson remarked, “Imagine if these kids had been on a movie set for Lionsgate . . . . People would go to jail if this had happened at a studio.”⁹⁰ But kidfluencers occupy a legal gray area existing somewhere between professional child performers and the kids-next-door getting together to make a funny video.⁹¹ And the PRI plaintiffs assert that that legal gray area has given rise to a “Wild West atmosphere of content creation” where adults can push children into extensive, high-profile content creation with little to no oversight.⁹²

Throughout the PRI lawsuit, Smith emphasized that she “did not view her home as a workplace” nor herself as the plaintiffs’ employer; she described the Squad’s activities as “ ‘kids get[ting] together voluntarily to collaborate on making videos,’ ” a far cry, in her view, from a professional studio environment that would necessitate her compliance with state child labor laws.⁹³ Smith’s lawyer commented, “There is tremendous uncertainty about what labor laws apply in the context of filming a YouTube video at home, with an iPhone . . . . At what point is that a professional production?”⁹⁴ Meanwhile, Sarelson argued that “PRI should be treated no differently than a traditional production company” and expressed “hopes [that] the lawsuit sparks change in the social media space.”⁹⁵ Some of PRI’s activities—including using a professional camera to film content and posting audition notices for young actors to film with Rockelle—could indicate that the corporation was effectively operating as a professional production company.⁹⁶ But currently, no federal legislation exists delineating the line between making home videos and shooting professional social-media content.

B. New Efforts: Expanding Child Labor Regulations to Cover Kidfluencers

A handful of states are beginning to enact labor protections for kidfluencers, underscoring the desire and need for a comprehensive, federal approach to kidfluencer regulation.⁹⁷ In July 2025, Minnesota enacted some of the most significant kidfluencer regulations so far: not only does the state now mandate protected trust accounts to safeguard kidfluencers’ earnings, but it also prohibits children less than fourteen years old from appearing in monetized content at all.⁹⁸ Instead of designing its law solely as a means of “legitimizing” kidfluencers as akin to child entertainers, University of Minnesota Law School Dean William McGeveran said Minnesota “ ‘set [its law] up as almost a child labor law. . . . It’s about kids needing to be able to be paid for work that they do . . . . And if they’re 13 and under, kids can’t work in the ice cream shop and they can’t work in their parents’ content creation either.’ ”⁹⁹ Minnesota’s statute does not enshrine any further labor regulations for kidfluencers over fourteen beyond protecting their earnings.

For the other six states that now protect kidfluencers’ labor, their measures are limited to regulating kidfluencers’ compensation. In July 2024, Illinois became the first U.S. state to enact laws expressly protecting kidfluencers’ earnings.¹⁰⁰ Content creators in Illinois must now set aside a portion of earnings in a protected trust account for all minors age sixteen and under who appear in at least thirty percent of their monetized content.¹⁰¹ Illinois Senator Dave Koehler, who introduced the law, took action after Shreya Nallamothu, a fifteen-year-old high school student in his district, alerted him to the issue of young children being featured extensively online with no labor protections for them in place.¹⁰² “This new digital age has given us tremendous opportunities to connect with one another, but it’s also presented legal issues that have never existed before,” said Koehler.¹⁰³ “We need to work with our children to see the problems they face and tackle them head-on before any further harm is done.”¹⁰⁴

The Illinois law protects earnings for minors under the age of sixteen while stipulating that minors under sixteen who produce their own videos are not considered “vlogger[s]” subject to the compensation and record-keeping requirements established by the law.¹⁰⁵ The law explicitly includes “famil[ies]” in its definition of “vlogger[s],” thus requiring parents who produce content featuring their own children (as well as any other children) to set aside the minors’ earnings if their inclusion reaches the specified threshold. The law also amends Illinois’ Child Labor Law by allowing teenagers who are at least eighteen years old to take legal action against their parents for failing to compensate them in accordance with the new requirements.¹⁰⁶ In response to the law, University of Alabama professor of digital media Jessica Maddox called the legislation “long overdue” and pushed for other states to take similar steps as well as expand protections to allow eighteen-year-olds to petition for the removal of social-media content that features them.¹⁰⁷ Emphasizing the need for regulations that adequately measure up to the reality of the kidfluencer phenomenon, Maddox commented:

[Kidfluencing and vlogging] are actual jobs, possible ways of earning income, that need protection . . . . Since there aren’t unions, there isn’t systemic protection in terms of laws, that is why Illinois law is super important for setting the precedent that this type of labor needs to be protected, especially for minors.¹⁰⁸

Meanwhile, on September 26, 2024, California Governor Gavin Newsom signed legislation expressly expanding the state’s Coogan Law to cover kidfluencers sharing content on YouTube and similar platforms.¹⁰⁹ The bill in question, AB 1880, defines “content creator” as “an individual who creates, posts, shares, or otherwise interacts with digital content on an online platform,” including “vloggers, podcasters, social media influencers, and streamers”; “online platform” is defined as “any public-facing website, web application, or digital application.”¹¹⁰ Regarding Governor Newsom’s support for the bill, bill author Assemblymember Juan Alanis remarked:

I thank Governor Newsom for signing AB 1880 and for his commitment to addressing the unique challenges minors face as online content creators in the rapidly growing digital entertainment industry. Child content creators deserve the same protections under the Coogan Law as their counterparts in traditional entertainment. With this bill, California takes a significant step in protecting the financial rights and well-being of child online influencers by extending critical protections against exploitation and ensuring they receive a fair share of earnings from their content.¹¹¹

Former child actor and successful musician Demi Lovato championed the bill as a critical step toward “grant[ing] agency” toward kidfluencers upon reaching adulthood.¹¹²

Signed alongside AB 1880 was SB 764,¹¹³ the Child Content Creator Rights Act (“CCCRA”), authored by Senator Steve Padilla.¹¹⁴ The CCCRA stipulates that video bloggers (“vloggers”) engage a minor “in the work of vlogging” when at least thirty percent of the vlogger’s monetized visual content includes “the likeness, name, or photograph of the minor.”¹¹⁵ Vloggers engaging minors in vlogging work under the definition of the CCCRA are required to keep detailed records of the minor’s age during the vlogging period and the extent of their appearance in and compensation for monetized content.¹¹⁶ Contracts for vlogging work between a minor and their parent must be approved by a court to avoid application of the bill’s terms; “[i]n determining whether to approve such a contract, the court shall consider whether the terms of the contract are at least as beneficial to the minor as the compensation the minor would otherwise receive under [the CCCRA].”¹¹⁷

And as of May 2025, Utah now also mandates protected trust accounts for kidfluencers.¹¹⁸ With similar provisions to those in California and Illinois, Utah’s law also lays out procedures for managing kidfluencers trusts and also requires that content creators “inform a minor’s parents that the minor is featured” in their content if, as in the PRI lawsuit, the creator is not themselves the minor’s parent.¹¹⁹ In the same vein, Virginia, Arkansas, and Montana all enacted kidfluencer laws in 2025, and each state focused its labor protections for kidfluencers on compensation safeguards, mandating Coogan Account-esque trusts for kidfluencers appearing in a certain percentage of creators’ content.¹²⁰

As lawmakers in California, Minnesota, Illinois, Utah, Arkansas, Montana, and Virginia have recognized, kidfluencing is a job, plain and simple. It demands the same safeguards against labor exploitation that are accepted throughout the United States for children in traditional entertainment jobs, along with additional protections that are necessary to address issues unique to kidfluencing. Thus, while the recent legislation in these states represents important progress, much more robust protections for kidfluencers—regulations modeled after California’s existing laws for child actors—are needed. Because of the geographic flexibility inherent in kidfluencer work, such protection is needed at the federal level to be fully comprehensive; further, kidfluencer regulations must not only mandate safeguards to compensation, but also ensure limits on working hours, guaranteed access to education, on-set supervision and advocacy, and the obtainment of permits to employ minors. As it stands today, even for kidfluencers now protected from financial exploitation in a handful of states, the rest of their working conditions remain largely unregulated—as does their privacy.

III. REGULATING THE PRIVACY OF KIDFLUENCERS

Growing up in the pop culture spotlight compromises a child’s privacy and reputation in ways that can be painful and enduring. As child actor Jennette McCurdy put it, “Growing is wobbly and full of mistakes, especially as a teenager—mistakes that you certainly don’t want to make in the public eye, let alone be known for for the rest of your life. But that’s what happens when you’re a child star.”¹²¹ And for kidfluencers, the extent to which their privacy and reputations are at stake is much greater. For Shirley Temple and Judy Garland, while the laws protecting them were still woefully inadequate, the personal information they shared with the public was limited to their performances as fictional characters, filmed on a soundstage by a camera that never followed them home. But for kidfluencers, the camera lives at home. Nothing is off-limits and every experience, every mistake, every embarrassment is potential content with dollar signs attached to it.

If labor regulations for kidfluencers are largely undeveloped, laws protecting kidfluencers’ privacy seem like less than an afterthought—perhaps even conceptually oxymoronic given that the point of kidfluencer content, in general, is to share children’s personal lives online. Even as lawmakers take steps to protect children as Internet users, kidfluencers are nowhere to be found in their policies. Though states have common law rights to privacy and publicity and a 1998 federal act regulates online platforms’ collection of children’s personal data, these rights can all generally be waived with consent—and for children, the consenting parties are their parents. Meanwhile, online platforms typically limit accounts to users aged thirteen and older, but given the numerous active kidfluencer accounts heavily featuring children under thirteen, platforms do not appear to restrict accounts that overwhelmingly feature children if the accounts are set up and managed by adults. These gaping loopholes in existing rights and policies allow kidfluencer accounts to thrive unchecked,¹²² leading to severe, long-term harm to and exploitation of kidfluencers that society is likely only beginning to reckon with.¹²³

A. Privacy Regulations for Children as Users Online

Existing and Proposed Federal Regulations for Children Online

i. The Children’s Online Privacy Protection Act of 1998

The Children’s Online Privacy Protection Act of 1998 (“COPPA”) is the primary set of federal regulations concerning children’s online privacy, covering consent and notice requirements for online platforms and entities that collect personal data from children.¹²⁴ COPPA’s “primary goal . . . is to place parents in control over what information is collected from their young children online,”¹²⁵ and it focuses on protecting children as users of online platforms as opposed to children appearing in online content. COPPA requires the Federal Trade Commission (“FTC”) to regulate online collection of children’s data and was last amended in 2013 in an effort to keep up with advancing technology.¹²⁶ Kidfluencers are not explicitly covered by COPPA or any other federal law.

As a protective measure for children who are merely consumers of online content, COPPA is reasonably comprehensive (though it needs continuous updates to remain effective). Its critical failure as a protective measure for kidfluencers, however, lies in its parental-consent-based structure—and in the fact that it makes no actual mention of kidfluencers at all. COPPA only applies to children under thirteen and requires that online entities obtain parental consent before collecting children’s personal data from children. COPPA prohibits “unfair and deceptive acts and practices in connection with the collection and use of personal information from and about children on the Internet.”¹²⁷ The act applies to websites or online services “directed to children”; in determining whether a given platform qualifies under this standard, the FTC considers the platform’s “subject matter,” “use of . . . child-oriented activities and incentives,” and “presence of child celebrities” as among relevant factors.¹²⁸ COPPA defines “collection” as “the gathering of any personal information from a child by any means, including . . . [r]equesting, prompting, or encouraging a child to submit personal information online,” “[e]nabling a child to make personal information publicly available,” and “[p]assive tracking of a child online.”¹²⁹ “[P]ersonal information” under COPPA includes identifiers like first and last name, physical address, and a “photograph, video, or audio file where such file contains a child’s image or voice.”¹³⁰ “Child” under COPPA includes only “individual[s] under the age of 13.”¹³¹

Before online entities collect personal data from a child, COPPA requires that the child’s parent receive adequate notice about the information collected and its intended use and that the parent consent to such collection.¹³² Online platforms also must provide parents with a “reasonable means . . . to review the personal information collected . . . and to refuse to permit its further use or maintenance.”¹³³ COPPA specifies that any means employed for parents to review collected information cannot be “unduly burdensome” to the parent and asserts that parents have the right to “at any time . . . refuse to permit . . . further use or future online collection of personal information . . . and to direct the [online platform] to delete the child’s personal information.”¹³⁴ Platforms have the right to terminate a child’s use of its services if the child’s parent revokes consent and requests deletion of collected information.¹³⁵ Platforms also must only retain children’s information for “as long as is reasonably necessary to fulfill the purpose for which the information was collected.”¹³⁶

Lastly, COPPA includes safe harbor provisions, allowing online entities that follow approved sets of self-regulatory guidelines to be deemed compliant with COPPA and eligible for safe harbor treatment shielding them from potential liability.¹³⁷

ii. COPPA 2.0

In May 2023, U.S. Senator Edward Markey, the author of COPPA, alongside Senator Bill Cassidy, introduced a new version of COPPA, “COPPA 2.0.”¹³⁸ After the Senate Commerce, Science, and Transportation Committee unanimously advanced COPPA 2.0 in July 2023, the Senate passed the bill in August 2024.¹³⁹ Senators Markey and Cassidy then reintroduced the bill in March 2025.¹⁴⁰ In early 2024, COPPA 2.0 cosponsor Senator Ted Cruz described the bill’s purpose as ensuring that no child leaves behind a digital footprint:

When Congress first passed the Children’s Online Privacy Protection Act, Americans were using dial-up to search “Ask Jeeves” instead of Google. Now, kids can access the Internet in the palm of their hands, and tech companies routinely surveil and target America’s youth. I’m proud to have worked with Sens. Markey, Cantwell, and Cassidy on bipartisan legislation to empower parents to safeguard their children’s online privacy and hold tech companies responsible for keeping minors safe from data collection. Every child deserves to grow up free of a digital footprint, and this bipartisan legislation is one step closer to achieving that goal.¹⁴¹

Championed as a means of bringing “children and teen’s online privacy standards into the 21st century,”¹⁴² COPPA 2.0 enumerates additional categories of online platforms, including mobile applications,¹⁴³ and forms of personal data, including biological and physiological information.¹⁴⁴ Most significantly, however, COPPA 2.0 creates an entirely new class of protected minors: teenagers between thirteen and sixteen years old.¹⁴⁵ Under COPPA 2.0, teenagers—not their parents—consent to collection of their own personal data and are empowered to request review of collected data as well as revoke consent for data collection.¹⁴⁶ However, COPPA 2.0 does not permit teenagers to withdraw consent for their own data that was collected with their parents’ consent before they turned thirteen.¹⁴⁷ The omission of this right, under either iteration of COPPA, is particularly sobering in the kidfluencer context because it prevents kidfluencers from compelling platforms to remove their data, collected before age thirteen, in the event that their parents cannot or will not do so.

2. Online Platforms’ User Age Restrictions

The largest social-media platforms typically require users to be at least thirteen years old,¹⁴⁸ though caveats to this rule exist. YouTube’s terms of service specify that users “must be at least 13 years old to use [YouTube]; however children of all ages may use [YouTube and YouTube Kids] . . . if enabled by a parent or legal guardian.”¹⁴⁹ TikTok requires users to be at least thirteen years old,¹⁵⁰ and TikTok’s settings default accounts associated with minor users to private mode; TikTok users ages sixteen and seventeen can choose to make their accounts public.¹⁵¹

Instagram also requires that users be at least thirteen;¹⁵² on September 17, 2024, Instagram began defaulting all accounts created by users who indicated they are under eighteen to private mode.¹⁵³ These changes, which Instagram says are being “rolled out on an individual basis,”¹⁵⁴ are part of Instagram’s new “Teen Accounts” initiative promoted as a means of increasing safety for minors using the platform.¹⁵⁵ Under the “Teen Accounts” setup, users ages sixteen and seventeen can change the default privacy setting themselves to make their accounts public; minors under sixteen need their parents’ permission to do so.¹⁵⁶

It is not clear whether Instagram’s recent changes will affect accounts that feature minors but are at least ostensibly managed by an adult (as most kidfluencer accounts typically are); however, Instagram makes no mention of such accounts in its communications about this new measure, while stipulating that the “Teen Accounts” setup applies to “users.” Thus, even as platforms begin rolling out age restrictions, kidfluencer accounts continue to

occupy a gray area outside of the growing spotlight on child social-media users.

B. Relevance and Current Limitations of the Common Law Rights of Privacy and Publicity

In the United States, the common law rights of privacy and publicity are “distinct” from one another and “intended to vindicate different interests,” though the latter initially evolved out of the former.¹⁵⁷ While the right of publicity enshrines the “right to control the commercial value of one’s identity,”¹⁵⁸ the right of privacy “protects one’s right ‘to be let alone.’ ”¹⁵⁹ The common law right of privacy comprises four tort causes of action: intrusion upon seclusion, public disclosure of private facts, false light, and appropriation.¹⁶⁰

The common law right of publicity developed out of both the right of privacy and intellectual property law, and has existed formally in the United States since the 1970s.¹⁶¹ While the United States Supreme Court recognized the existence of the right of publicity in 1977 in Zacchini v. Scripps-Howard Broadcasting Co.,¹⁶² there is no federal right of publicity; rather, the right of publicity exists at the state level and is currently recognized in thirty-five states, including California.¹⁶³ The right of publicity stipulates that individuals have a common law right against appropriation of “the commercial value of [their] identity . . . without consent”;¹⁶⁴ inherent in the right is the recognition that “an individual’s likeness” is that individual’s “own property.”¹⁶⁵ The right of publicity is based on three core justifications: (1) the right to “reap the fruit of [one’s] labors,” connected to concerns about unjust enrichment;¹⁶⁶ (2) the “copyright-incentive theory” that the law must protect the individual’s persona so as to promote creative artistry; and (3) the need to protect “consumer[s] from advertising deception.”¹⁶⁷ Section 3344 of the California Civil Code (“section 3344”) codifies California’s common law right of publicity and prohibits use of another’s image or “likeness” for profit without consent.¹⁶⁸ For minors, however, it is precisely the element of “consent” that is likely to prove most challenging if and when section 3344 is invoked to protect their rights, for the law expressly recognizes consent by a minor’s parent or guardian as equivalent to the minor’s own consent.¹⁶⁹

While the PRI lawsuit is currently unique, it illustrates how disputes over consent are likely to be central to any efforts to protect kidfluencers’ privacy and publicity rights under the common law and corresponding statutes. Three plaintiffs in the PRI lawsuit alleged violations of both section 3344 and California’s common law right of publicity;¹⁷⁰ Smith argued that she could not be liable under section 3344 and the common law precisely because the parents of the three plaintiffs had consented to the use of their children’s likenesses for commercial purposes on Rockelle’s channel.¹⁷¹ The plaintiffs disputed the fact of such consent¹⁷² and, in denying summary judgment in March 2024, the Superior Court of California ruled that these claims created issues of triable fact. Presumably, parents of the other eight plaintiffs had consented to use of their children’s likenesses for profit by Smith and PRI. And given that no plaintiff ever alleged that their parent had no knowledge whatsoever of their appearance in videos on Rockelle’s channel, it follows that the parents of the three children alleging publicity violations simply may not have given meaningful consent.

At least for situations like the ones in which these three PRI plaintiffs found themselves, requiring that online platforms verify meaningful consent and notice by kidfluencers or their parents to use of the child’s likeness in monetized content would counteract harm. But still further, the lack of application of recognized privacy and publicity rights to the kidfluencer context as well as the parental-consent waiver’s potential for conflicts of interest in that context is representative of the current limitations of existing laws. Looking at the plain language and spirit of the recognized rights of privacy and publicity alongside the raw reality of the kidfluencer phenomenon, as typified by the PRI lawsuit, it follows not only that our society and legal system should care about protecting kidfluencers’ privacy and publicity rights, but that we in fact do care about it. However, our society has not yet recognized how our concern for privacy and publicity rights implicates kidfluencers due to their novelty; and it would likely take years of litigation—and kidfluencer exploitation—before the common law could produce a legal framework appropriate for the competing claims of parents and kidfluencers to control over the child’s rights to privacy and publicity.

C. Falling Through the Gaps: Protecting Kidfluencers’ Privacy

1. Kidfluencing’s Unique Threat to Privacy

The Senate’s passage of COPPA 2.0 indicates a strong desire on the part of lawmakers to protect children online. But thus far, kidfluencers are missing entirely from that conversation—and to disastrous results. The types of information COPPA and COPPA 2.0 mention specifically as constituting “personal” data worth protecting—full names, online contact information, photographs, video and audio files containing a child’s image or voice, geolocation information, and more—are available in droves on kidfluencer accounts. And even as social-media platforms place age restrictions on users, kidfluencer accounts need only include a few words claiming to be managed by a parent in their description to post massive amounts of kidfluencer content to vast online audiences without constraint.

And kidfluencers’ audiences grow more dangerous as their accounts gain traction: in early 2024, the New York Times published an in-depth investigation into kidfluencers’ follower demographics, and the results are sobering. The proportion of kidfluencer account followers who are adult males grows “dramatically” as accounts grow in popularity.¹⁷³ While men made up approximately 35 percent of kidfluencer audiences overall, “[m]any [accounts] with more than 100,000 followers had a male audience of over 75 percent,” while some had over 90 percent.¹⁷⁴ The Times discovered men previously charged with or convicted of sex crimes among kidfluencer followers and found that some of these men participated in chat rooms with thousands of members, “treat[ing] children’s Instagram pages . . . as menus to satisfy their fantasies.”¹⁷⁵

While some parents are ignorant of the dangers posed by their children’s audiences,¹⁷⁶ others have grown “numb” trying to beat back the unending tide of suspicious followers.¹⁷⁷

“You are so sexy,” read one comment on an image of a 5-year-old girl in a ruffled bikini. “Those two little things look great thru ur top,” said another on a video of a girl dancing in a white cropped shirt, who months later posted pictures of her 11th birthday party.

For many mom-run accounts, comments from men—admiring, suggestive or explicit—are a recurring scourge to be eradicated, or an inescapable fact of life to be ignored. For others, they are a source to be tapped.

“The first thing I do when I wake up and the last thing I do when I go to bed is block accounts,” said Lynn, the mother of a 6-year-old girl in Florida who has about 3,000 followers from the dance world.

Another mother, Gail from Texas, described being desensitized to the men’s messages. “I don’t have as much of an emotional response anymore,” she said. “It’s weird to be so numb to that, but the quantity is just astounding.”¹⁷⁸

Still other parents are taking knowing advantage of this population: men in the chat rooms that the Times uncovered “frequently praise[d] the advent of Instagram as a golden age for child exploitation” and “trade[d] information about parents considered receptive to producing and selling ‘private sets’ of images.”¹⁷⁹ And among the allegations in the PRI lawsuit was a claim by one plaintiff that she accompanied Smith in mailing “several of Piper’s soiled training bras and panties to an unknown individual,” whereupon Smith told the plaintiff that “old men like to smell this stuff.”¹⁸⁰ Plaintiffs also alleged that Smith often “boast[ed] . . . about being the ‘Madam of YouTube’ ” and a “Pimp of YouTube,” and about making “kiddie porn.”¹⁸¹

Rockelle’s content and the PRI plaintiffs’ allegations paint a stark picture of the rampant sharing of invasive kidfluencer content carrying on unchecked throughout social media. For the members of the Squad, their experience working with PRI shares themes with Jennette McCurdy’s recollection of losing her childhood, autonomy, and privacy to child stardom. The Squad made countless videos centered around the group’s internal “crushes” and these videos performed much more strongly than the more innocent videos from Rockelle’s early days.¹⁸² Smith and Hill documented Rockelle’s first kiss on camera at age eleven¹⁸³ and filmed challenges among the Squad in which the minors competed to see who could kiss without stopping for the longest period of time.¹⁸⁴ The mother of two PRI plaintiffs, who is also Rockelle’s aunt, claimed that Smith sent Rockelle “a daily iPhone checklist cataloging the attention she needed to pay to her boyfriend, including sending him heart emojis [and] giving regular kisses, hugs and loving touches.”¹⁸⁵

In addition to the suggestive video content on Rockelle’s channel, the thumbnail images for the videos themselves are clearly set up to provide shock value and drive an increase in viewership. The mother of one PRI plaintiff alleged that Smith “often urged [plaintiffs] to pose more provocatively for thumbnail photo shoots,” ¹⁸⁶ and the lawsuit claimed that Smith, declaring that “sex sells,” “would frequently tell [the Squad members] to make ‘sexy kissing faces’ for thumbnails, to ‘push their butts out,’ to ‘suck their stomachs in,’ ‘wear something sluttier’ and would otherwise position [the p]laintiffs’ bodies in explicitly and sexually suggestive positions.”¹⁸⁷ As a result, minors are frequently depicted in provocative, revealing, or otherwise exploitative positions and situations in Rockelle’s thumbnails.

Image 3. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁸⁸

Image 4. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁸⁹

Image 5. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁹⁰

Image 6. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁹¹

The following YouTube video thumbnail images are merely described herein to protect the privacy of the minors featured in them:

Six teenagers (four female, two male), aged thirteen to seventeen, photoshopped to appear crowded together inside a bubble bath. The two male teenagers are shirtless, while the female teenagers appear to be wearing tank tops. The female teenager in the center has her hair arranged covering the straps of her tank top. The video is entitled “LAST TO LEAVE THE BUBBLE BATH!!” and has 2.3 million views.¹⁹²

Six teenagers (three female, three male), aged twelve to fifteen, arranged in co-educational pairs, each in one of three horizontal panels. Each female is touching her male counterpart. The male in the center panel is shirtless and his female counterpart is touching his bare torso. The video is entitled “LAST TO STOP MASSAGING THEIR BOYFRIEND WINS **Couples Challenge** 💆‍♀️💕” and has 1.9 million views.¹⁹³

One female aged eleven pictured in a cropped shirt pointing at her navel. A fake piercing is attached to her navel and a yellow circle is superimposed around her stomach while a zoomed-in image of her navel with the piercing appears in the right-hand side of the thumbnail. In the center of the thumbnail, the words “11 YEARS OLD!!” appear in large block lettering. The video is entitled “11 YEAR OLD BELLY PIERCED **PRANK** (Can’t Say No 24 Hour Challenge) 🚫👌” and has 4.6 million views.¹⁹⁴

Two females, aged eleven and twelve, wearing fake “baby bumps” designed to look like a pregnant woman’s belly with their shirts raised to expose the bumps. The video’s description includes the note, “We are only 11 and 12 so [this is] a pretty crazy challenge for us.” The video is entitled “24 Hours Being PREGNANT Challenge in PUBLIC with TWINS **FUNNY REACTIONS** 🍼🎀” and has 14 million views.¹⁹⁵

According to the Los Angeles Times’ investigation of the PRI lawsuit, PRI’s videos chronicling the Squad’s “crushes” performed the best with Rockelle’s online audience.¹⁹⁶ This data combined with the New York Times’ findings regarding dangerous followers of kidfluencers reflect the significant market that exists for kidfluencer content that is sensitive at best and criminal at worst. If, in the words of COPPA 2.0 cosponsor Senator Ted Cruz, “[e]very child deserves to grow up free of a digital footprint,”¹⁹⁷ the law is currently failing kidfluencers to a staggering degree.

Further, even content that perhaps falls short of the hallmark suggestiveness of Rockelle’s brand victimizes kidfluencers—according to some kidfluencers themselves. In July 2023, Ruby Franke, former figurehead of the now-defunct YouTube channel “8 Passengers,” made headlines when her two youngest children, then ages nine and twelve, were found emaciated and wounded.¹⁹⁸ The children had been imprisoned and suffered months of abuse by both Franke and her business partner Jodi Hildebrandt.¹⁹⁹ Franke had stopped posting videos of her children over a year before, changing the name of her channel to “Moms of Truth” and posting solemn videos alongside Hildebrandt discussing parenting strategies and religion. But in the 8 Passengers heyday, Franke posted videos of her family of eight almost daily, chronicling her six children’s lives as they grew up in front of an audience of up to two million subscribers.²⁰⁰

By 2022, 8 Passengers viewers had started to grow concerned about Franke’s behavior—while the harrowing nature of Franke’s eventual abuse would have been impossible for viewers to predict, many subscribers began to notice that Franke showed an indifference, at best, to her children’s privacy.²⁰¹ Franke spoke at length in her YouTube videos about sensitive matters in her children’s lives; over the course of several videos, she described in-depth her and her husband Kevin’s decision to send their oldest son, then fourteen, to a behavioral modification camp in the Arizona wilderness. At one point, Franke played a voicemail for viewers that her son had left her while at the camp; her son cried throughout the voicemail as he described his experience.²⁰² Another video featured the parents taking their preteen daughter to buy her first bra. After Kevin asked his preteen, “How come you’re all embarrassed?” his oldest daughter Shari spoke up off camera: “Because you’re filming her and you’re her dad?”²⁰³

2. Adapting COPPA 2.0 and the Necessity of a Right to Removal

In October 2024, Shari, now twenty-one, addressed Utah’s Business and Labor Interim Committee; Utah Representative Doug Owens, who sponsored Utah’s subsequent bill regulating kidfluencers, introduced her testimony.²⁰⁴ Shari told lawmakers that she appeared before them “as a victim of family vlogging” in hopes of “shed[ding] light on the ethical and monetary issues that come from being a child influencer.”²⁰⁵ Her words highlighted how adequate compensation is but one small component of a comprehensive regulatory scheme to protect kidfluencers; her experiences as a kidfluencer also evoke many of the same themes as Jennette McCurdy’s retelling of her time as a child actor—in particular, the sense that the compensation she received, while helpful, was simply not worth the loss of her childhood.

[Being a kidfluencer] is more than just filming your family life and putting it online. It is a full-time job with employees, business credit cards, managers, and marketing strategies. The difference between family vlogging and a normal business, however, is that the employees are all children. Children, from before they are born to the day they turn eighteen, have become the stars of family businesses on YouTube, Instagram, and most other social media platforms.

. . . .

At first, family vlogging is an alluring business that can bring high revenue. For my family, it became the primary source of income . . . . Many child influencers are paid for their work as I was, and this money has helped me in my adult life. However, this payment was usually a bribe. For example, we’d be rewarded $100 or a shopping trip if we filmed a particularly embarrassing moment or an exciting event in our lives. . . . Any payment that happens is under the table, with no paper trail. And how do we determine how much a child should make from appearing in family content? What price is worth giving up your childhood?

. . . Some of our most popular videos were when my eyebrow was accidentally waxed off, and the whole world saw a crying teenager when I just wanted to mourn in private. Or the time I was violently ill and got the leading role in the video for that day. My friends became scarce because dates were filmed and none of my friends wanted to be on camera. The camera never stops and there is no such thing as a [vacation] from filming.

. . . .

[A]s children, we do not understand the consequences of filming our lives and [having it] post[ed] for the world to see. We cannot give consent to our parents to post our lives. . . . I did not realize the impact that filming as a child would have on me now. . . .

. . . .

If I could go back and do it all again, I’d rather have an empty bank account now and not have my childhood plastered all over the Internet. No amount of money I received has made what I’ve experienced worth it. . . . I promise you that my experiences are not unique and are happening to child influencers all over Utah and the country. Let’s tackle this issue before it becomes a bigger crisis than it already is.²⁰⁶

As Shari’s words illustrate, kidfluencing is currently too unchecked and too profitable—for parents—to be safe; thus, common-sense regulations aimed at deterring parents from overworking and oversharing their children for a financial payout are critically necessary. Just as labor protections for kidfluencers would be most effective if enacted at the federal level, protective measures for kidfluencers’ privacy need federal support. COPPA presents a key opportunity to begin developing that support by empowering kidfluencers to wield greater control over their digital footprints long term. While COPPA 2.0 takes an important step forward by expanding online privacy protections for teenagers, a truly comprehensive and effective COPPA amendment would also cover kidfluencers.

Protections for kidfluencers under a new version of COPPA would make explicit the right of teenaged kidfluencers to consent (or not) to sharing their personal information in monetized content and their right to revoke that consent at any time; this system would empower teenaged kidfluencers by allying them with the social-media platforms hosting their content—regardless of a parent’s role in producing kidfluencer content, platforms would require the kidfluencer’s consent before new content could be shared. For kidfluencers under thirteen, the consent that their parents give to sharing their children’s information and to commercial use of their likeness would become provisional only and revocable by the child upon reaching age thirteen. This change would allow kidfluencers to retroactively revoke consent to personal data their parents had agreed to share and compel platforms to remove it.²⁰⁷ And in situations where groups of kidfluencers create content together, as in the case of Piper Rockelle’s Squad, a kidfluencer-focused COPPA section would provide legal scaffolding to discourage casual content-sharing to large online audiences without informed consent by every parent or teenager involved. These amendments would be a first step in giving kidfluencers the privacy protections that they currently lack.

Four of the states that now regulate kidfluencers’ compensation have also taken steps in this direction: recent laws in Montana, Arkansas, Utah, and Minnesota include provisions aimed at empowering kidfluencers to request removal of content featuring them. In particular, Minnesota’s flat ban on children thirteen and under working as kidfluencers is well worth lawmakers’ consideration both in other states and at the federal level; such a ban would have automatically made much of the Squad’s early content unlawful due to the children’s ages, while also avoiding the challenges of enforcing more nuanced regulations. Yet gaps persist—Minnesota’s law provides that “[c]ontent containing the likeness of a child must be deleted and removed from any online platform by the individual who posted the content, the account owner, or another person who has control over the account when the request is made,” either by a kidfluencer at least thirteen years old or by a former kidfluencer who is now an adult.²⁰⁸ However, the law does not provide an explicit enforcement mechanism or a means for relief for kidfluencers whose requests for removal go unheeded; it also seemingly exempts social-media platforms from responsibility entirely as it has no “effect on a party that is neither the content creator nor the minor who engaged in . . . content creation.”²⁰⁹

Meanwhile, Utah’s law does involve social-media platforms that host kidfluencer content explicitly in its removal provisions, requiring that platforms “provide a readily apparent process” for former kidfluencers who are now at least eighteen to request removal of content featuring themselves as minors.²¹⁰ But under Utah’s system, creators can still refuse to comply with removal requests. The law provides only an ex post, litigation-dependent right of action for former kidfluencers to challenge a creator’s refusal; at that point, a court would then consider the “emotional harm or substantial embarrassment” the challenged content poses to the former kidfluencer and both “the interests of the content creator” as well as “the public interest served by” that content.²¹¹ Thus, while Utah and Minnesota’s protections are certainly better than nothing, they are also critically limited; because kidfluencer exploitation is so rampant and systemic, an expensive, slow, after-the-fact system of relief available only on a state-by-state basis is simply not enough to protect them.

From that perspective, Arkansas and Montana have gone the furthest toward effecting an adequate legal solution: both states’ kidfluencer laws put responsibility on platforms, though with some caveats, to enforce kidfluencer protections, including removing kidfluencer content upon request. In Montana, creators are removed from the takedown process entirely; instead, Montana’s law triggers platforms’ responsibility to “take all reasonable steps to permanently delete” kidfluencer content as soon as former kidfluencers (who are at least eighteen) request removal.²¹²

Arkansas’ kidfluencer law is arguably even more sweeping; under that law, platforms must allow for removal requests by kidfluencers and then notify content creators of their obligation to remove the applicable content within thirty days; if creators do not do so, platforms “shall review and take all reasonable steps to remove the content.”²¹³ Unlike Montana, Arkansas does include caveats to platforms’ mandated removal, including for content that the platform finds “sufficiently newsworthy or of other public interest to outweigh the privacy interests” of the kidfluencer in question.²¹⁴ However, Arkansas also elevates platforms’ responsibilities in an additional, consequential area: its law makes it “unlawful to financially benefit from knowingly producing or distributing publicly . . . any visual depiction of a minor with the intent to sexually gratify or elicit a sexual response in the viewer or any other person.”²¹⁵ This section mandates platforms to “develop and implement a risk-based strategy to help mitigate risks related to monetization of the intentional sexualization of known minors” in a content-creation context; the structure of such strategies is at platforms’ discretion and can include monetization policies, “automated system[s] to identify and enforce against potentially problematic content and accounts,” and “[q]uality assurance processes” to monitor the effectiveness of platform’s policies in this area.²¹⁶ While the precise standard for determining whether content has “the intent to sexually gratify or elicit a sexual response” under Arkansas’ law are unspecified, much of the PRI Squad’s content could likely qualify. Thus, in addition to placing responsibility on social-media platforms to effectuate kidfluencer content removal, Arkansas also made the critical first step, at the state level, toward mandating that platforms develop ongoing procedures to monitor for at least some kinds of problematic kidfluencer content, and, ideally, prevent exploitation before it occurs.

Overall, both Arkansas and Montana’s regulatory approaches—situating platforms as the enforcers of newly-recognized kidfluencer privacy and publicity rights—represent the most effective way forward for a comprehensive federal scheme to protect kidfluencers.

IV. THE SOLUTION—FEDERAL LABOR AND PRIVACY PROTECTIONS AND REQUIRING SOCIAL-MEDIA PLATFORMS TO ENFORCE KIDFLUENCER RIGHTS

Kidfluencers need comprehensive labor and privacy protections, and because the Internet transcends the geographical limits that made state-specific labor regulations for child actors practical, adequate kidfluencer labor and privacy regulations must be set at the federal level. But once enacted, these comprehensive federal protections will require an effective enforcement mechanism—and the social-media platforms that host kidfluencer content are likely the entities best situated to moderate and enforce kidfluencer regulations. Thus, a robust set of federal kidfluencer labor and privacy protections would include an imposition of liability on platforms that feature kidfluencer content on monetized accounts (thereby creating revenue for the platform itself as well as for those managing the kidfluencer accounts) when that content is produced under conditions that violate kidfluencer laws. So far, only two states, Montana and Arkansas, have placed legal responsibility squarely on platforms to remove kidfluencer content upon request; lawmakers seeking to adequately protect kidfluencers must follow these states’ lead by pushing for federal measures that regulate kidfluencers’ labor and privacy and enable platforms to enforce those laws.

A. Section 230 and Techlash

Any conversation surrounding potential liability for online platforms based on a platform’s third-party content implicates section 230 of the Communications Decency Act of 1996 (“section 230”). Recognizing how “[t]he rapidly developing array of Internet . . . services available to individual Americans represent[s] an extraordinary advance in the availability of educational and informational resources,”²¹⁷ and how the Internet “ha[s] flourished, to the benefit of all Americans, with a minimum of government regulation,”²¹⁸ section 230 provides limited immunity to any online platform for content posted by third-party users.²¹⁹ In the nearly thirty years since section 230’s passage, its supporters have credited it with enabling some major online platforms to grow from start-ups into global giants,²²⁰ particularly with regard to the largest companies commonly referred to as a whole as “Big Tech.”²²¹ And many of those supporters have defended section 230 in the last ten years as an increasing number of detractors began voicing concerns over Big Tech’s ever-growing and seemingly unchecked power, a phenomenon dubbed “techlash.”²²²

Kidfluencers are glaringly missing from this increasingly heightened debate over the virtues and dangers of section 230 and, more broadly, about the responsibilities or lack thereof that Big Tech owes to users. Any federal proposal to impose liability upon platforms who violate laws designed to prevent kidfluencer exploitation will prompt questions about whether imposing such liability would infringe platforms’ rights under section 230 and their constitutional rights to freedom of expression. Crucially, however, section 230 itself already includes limiting language: in addition to protecting the right of platforms to “voluntarily” and “in good faith” “restrict access to or availability of material that [the platform] considers to be obscene, lewd, . . . or otherwise objectionable, whether or not such material is constitutionally protected,”²²³ section 230 dictates explicitly that it has “[n]o effect on intellectual property law.”²²⁴ Thus, new kidfluencer regulations, if modeled after this exception for intellectual property law, could be fully consistent with section 230.

B. Contributory Liability as a Basis for Platform Enforcement

In keeping with section 230’s unrestricted exception for intellectual property concerns, the Digital Millennium Copyright Act (“DMCA”), passed two years later, empowers copyright owners to compel online entities to remove infringing material hosted on their platforms or otherwise face liability.²²⁵ Under the DMCA’s “notice-and-takedown system,” online platforms can qualify for limitations on liability, known as safe harbor provisions, provided that they comply with an owner’s takedown request.²²⁶ Thus, the system enables copyright owners to safeguard their work from infringement while avoiding litigation and also ensures, via its safe harbor provisions, that online platforms are not impeded in their industrial development by these intellectual property protections. The DMCA has roots in common law contributory liability doctrine in recognizing partial responsibility on the part of online entities for infringement happening on their platform.²²⁷ In this way, the DMCA serves as an analog for a potential liability model for platforms hosting kidfluencer content produced in violation of expanded regulations.

In the kidfluencer context, online platforms also go a step further than inadvertent sharing of objectionable material—they profit directly from kidfluencer content by collecting a percentage of advertising revenue from the accounts they monetize.²²⁸ Thus, under expanded labor and privacy protections for kidfluencers, adapted from existing laws for child actors and child social-media users, platforms hosting monetized kidfluencer accounts would more than meet the criteria for contributory liability for profiting off of content produced in violation of these new regulations. Yet at the same time, platforms are also likely the most well-situated party to enact protocols that can effectively monitor and enforce updated kidfluencer laws.

Platforms can develop a more robust application process for kidfluencer account monetization requiring that adults running kidfluencer accounts to comply with the same laws regulating studios employing traditional child entertainers: obtaining permits to employ minors, tracking and reporting kidfluencers’ working hours and staying within working hour limits, providing proof of regular education and on-set supervision, and setting up protected trust accounts to safeguard kidfluencers’ compensation. Under this regulatory system, would-be kidfluencer accounts would have to meet these requirements as part of applying for account monetization, and existing kidfluencer accounts would have to provide documentation showing that they are maintaining these mandates to retain their monetized status on a continuing basis. Further, if federal protections for kidfluencers’ privacy were enshrined in an expansion of COPPA, online platforms could also be required to actively monitor kidfluencer accounts’ adherence to COPPA’s expanded mandates; specifically, platforms must obtain consent by teenagers and provisional consent by parents of children under thirteen to appear in monetized content and provide a means to revoke consent and compel removal upon request. Just as proof of continuing adherence to expanded kidfluencer labor regulations should be required for kidfluencer accounts to achieve monetization, so too should kidfluencer accounts be required to demonstrate compliance with privacy protections in order to keep gaining revenue. Online platforms already have established procedures to conform with COPPA’s existing mandates for children’s data collection that are similar to DMCA’s safe harbor criteria—in particular, COPPA includes its own self-regulatory guidelines for platforms to keep themselves eligible for COPPA’s longstanding safe harbor provisions. Thus, platforms are poised with a foundation to further develop protocols that monitor compliance with kidfluencer regulations. And despite the ongoing debate over the fate of section 230, imposing liability for online platforms in the kidfluencer context arguably need not threaten section 230, or platforms’ free expression more broadly, at all; such liability would not be without precedent given section 230’s blanket exception for intellectual property infringement, the DMCA’s subsequent imposition of the notice-and-takedown system, and COPPA’s longstanding restrictions on how online platforms interact with child users.

CONCLUSION

While some former kidfluencers like Shari Franke have explicitly called for a ban on kidfluencing entirely, such a drastic measure would be remarkably difficult, if not impossible, to achieve. At the same time, though the PRI lawsuit is unique, as of this writing, in its involvement of kidfluencers personally suing adult content producers, the PRI plaintiffs are part of an ever-growing cohort, the oldest of whom are only beginning to reach adulthood. As the first generation of kidfluencers comes of age while regulations to protect kidfluencers remain, at best, in their infancy, courts could see a rise in litigation by former kidfluencers only now independent enough to seek legal recourse. Rather than Shari’s proposed all-out ban on kidfluencing or a slew of merely reactive, post-exploitation lawsuits in the spirit of the PRI lawsuit, the more promising approach to addressing kidfluencer exploitation lies in enacting strict labor and privacy regulations at the federal level; once these regulations are created or expanded, lawmakers can then explore mechanisms for imposing liability on social-media platforms that host kidfluencer content produced in violation of these expanded regulations. If kidfluencers are to remain a fixture of the content-creator world (and they likely will, given the pervasiveness of their online presence as well as their financial value to the platforms that feature them), their career field needs to be regulated like the bona fide occupation that it is. Thus, federal law must ensure the right of kidfluencers in every state to limits on their working hours, guaranteed access to education, on-set supervision and advocacy, and compensation safeguards—the same protections that the most stringent states afford to professional child actors.

But merely applying labor regulations for child actors to kidfluencers as an overall protective measure still falls short because the nature of kidfluencing itself presents an unprecedented privacy intrusion. Child actors have built-in privacy protections by virtue of conducting their work on a set, away from home, playing characters. Their work, by and large, is only seen by people who pay to see it and is only broadcast subject to intellectual property and other licensing agreements between production companies and distributors. In contrast, when kidfluencers’ parents say, “Action!” the entire world immediately has an unrestricted window directly into their personal, private life. Thus, just as federal law must be expanded to regulate kidfluencers’ labor, COPPA should be amended to explicitly cover kidfluencers and also to make parental consent to collection of kidfluencers’ personal data provisional only—once children turn thirteen, they must be able to retroactively withdraw consent for data their parents turned over on their behalf. Under this new regulatory system, social-media platforms would be charged with monitoring kidfluencer accounts’ adherence to these requirements and suspending accounts in violation, drawing upon their existing safe harbor guidelines that currently ensure their compliance with COPPA and the DMCA as a model. This all-encompassing approach will serve to close the gaps in kidfluencer protections as quickly and effectively as possible, preventing future generations of kidfluencers from needing to wait to reach adulthood before they can pursue legal recourse after years of exploitation. It defies common sense that, as far as kidfluencers’ labor and privacy are concerned, the younger—and more vulnerable—they are, the fewer rights they have.

APPENDIX

My name is Shari Franke. My mother, Ruby Franke, is the prominent family vlogger arrested last year for child abuse. I don’t come today as the daughter of a felon, nor a victim of an abnormally abusive mother. I come today as a victim of family vlogging. My goal today is not to present any idea of a solution to this problem, but to shed light on the ethical and monetary issues that come from being a child influencer.

When children become stars in their family’s online content, they become child influencers. It is more than just filming your family life and putting it online. It is a full-time job with employees, business credit cards, managers, and marketing strategies. The difference between family vlogging and a normal business, however, is that the employees are all children. Children, from before they are born to the day they turn eighteen, have become the stars of family businesses on YouTube, Instagram, and most other social media platforms.

Utah is specifically a hotspot for family content due to the LDS culture around family and the goal to share the church with the world. We also have large families which makes family content more lucrative. Specifically, many parents film their regular family life as an online video blog, called a vlog. But I want to be clear that there is never, ever a good reason for posting your children online for money or fame. There is no such thing as a moral or ethical family vlogger.

At first, family vlogging is an alluring business that can bring high revenue. For my family, it became the primary source of income as is often the case for full time family vloggers. Many child influencers are paid for their work as I was, and this money has helped me in my adult life. However, this payment was usually a bribe. For example, we’d be rewarded $100 or a shopping trip if we filmed a particularly embarrassing moment or an exciting event in our lives. Or other times, simply going on vacation was expected to be payment enough—because most kids don’t get to go on regular and expensive trips. Never mind the fact that the child’s labor is actually what paid for the vacation or trip. There is no law in place to guarantee that child influencers get any money from their work. If a family account does not become an LLC, parents are taxed heavily for paying their children. But parents receive tax write offs for the regular clothes they wear, the gas money used to drive places, and even the houses they live in—anything that is filmed can be written off. And even after registering their business as an LLC, there is no guarantee that children will get paid. Any payment that happens is under the table, with no paper trail. And how do we determine how much a child should make from appearing in family content? What price is worth giving up your childhood?

But despite any monetary payment children may receive, don’t let this excuse the 24/7 labor that these children are subjected to. As a child, I was fully aware that I was an employee. The business was successful when I was happy or when I shared my hardships with the world. Some of our most popular videos were when my eyebrow was accidentally waxed off, and the whole world saw a crying teenager when I just wanted to mourn in private. Or the time I was violently ill and got the leading role in the video [for] that day. My friends became scarce because dates were filmed and none of my friends wanted to be on camera. The camera never stops and there is no such thing as a [vacation] from filming.

At the time, I’d tell you that I had a choice in what was filmed. But I’ve come to learn that every child influencer, in a way, suffers from Stockholm syndrome. Most child influencers would probably tell you they have full control over what is posted; but the reality is that their parents bribe and shame them into posting their most vulnerable moments. In fact, many child influencers may tell you they enjoy their work because of the monetary perks they receive, or the fun experiences that they can have. After all, what child would say no to a fun vacation or shopping spree if all they needed to do was film [a mental breakdown or] an embarrassing moment?

But as children, we do not understand the consequences of filming our lives and [having it] post[ed] for the world to see. We cannot give consent to our parents to post our lives. In any other context, it is understood that children cannot give consent—but for some reason, people think family vlogging is different. I did not realize the impact that filming as a child would have on me now. My social media became flooded with rumors of having sexual relations with my own brother, to being called a baby birthing machine at the age of thirteen. All these things have stuck with me, and I will forever live between the ages of thirteen to seventeen in many of my viewer’s minds. In addition, pedophiles stalk the internet, specifically seeking out child influencers. I promise you that the parents are aware of these predators and choose to post their children anyway.

I understand that this a big issue to tackle. I am not asking you to ban family vlogging, though that is my end goal. I also understand that as Utahns, we don’t appreciate big government overreach. But when it comes to protecting children, it should be a bipartisan issue. The only people harmed by child influencer laws are the parents exploiting their children. While this may not seem like an issue now, as child influencers in Utah continue to grow up, I foresee there will be legal crises with these children realizing that vlogging has brought severe emotional distress. Or these kids may realize they don’t have an appropriate amount of money to show for their [forced] labor. After all, how does that child know how much they should have made versus what their parents may or may not have paid them? Let’s deal with this now, before we reach that point. But even despite a good paycheck, I want to be absolutely clear that there is no amount of money can justify selling your soul, as a child, to the world. In no other industry would we justify unregulated child labor with a huge paycheck, and we should not do that here.

If I could go back and do it all again, I’d rather have an empty bank account now and not have my childhood plastered all over the Internet. No amount of money I received has made what I’ve experienced worth it. While I don’t have all the answers, nor many feasible solutions for this problem, I am proud to be one of the first child influencers in the state of Utah to speak against this issue. I don’t want people to look at me and blame my unique circumstances, with a mother in prison, to the Franke criminal case. Family vlogging ruined my innocence long before Ruby committed a crime. I promise you that my experiences are not unique and are happening to child influencers all over Utah and the country. Let’s tackle this issue before it becomes a bigger crisis than it already is. Thank you.²²⁹

99 S. Cal. L. Rev. 449

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Elinor J. Haddad*

*Executive Postscript Editor, Southern California Law Review, Volume 99; J.D. Candidate, 2026, University of Southern California Gould School of Law; B.A. Law, History, and Culture, 2016, University of Southern California. This Note is dedicated to the memory of my grandmother Nan Johnson. Thank you to my advisors Professors Jonathan Barnett and Jef Pearlman for their support and guidance; to Cristopher Swain for his unconditional encouragement; to Mark E. Haddad for his faith and wisdom; to Miranda Johnson-Haddad for her unwavering support; to Madeline Goossen and Robyn Kazemaini for their loyal mentorship; and to Kelcey Sholl, Isabella Flaherty, Nicholas Considine, and the staff of the Southern California Law Review for their thoughtful and dedicated editing.

Beyond Words: The Risks of Generative Interpretation

March 2026March 2026Jonathan Scher*

Judges are beginning to use large language models like ChatGPT to interpret legal texts. This Note examines whether they should do so. Prior studies testing LLMs as legal interpreters use survey responses as benchmarks for performance. I offer the first study comparing LLM interpretations to real-world judicial decisions. Across eight Ninth Circuit cases, I test whether GPT-4 Turbo (a model of ChatGPT) correctly identifies legal text as ambiguous or unambiguous. I find that ChatGPT’s assessments diverged from the court’s determinations 50% of the time. I then advance a novel argument: judicial reliance on LLMs may constitute improper ex parte communication under current judicial ethics rules.

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First Amendment Governance: Social Media, Power, and a Well-Functioning Speech Environment

September 2025February 2026Yasmin Dawood*

Introduction

In Moody v. NetChoice, LLC,¹ the Supreme Court declared, in a majority opinion by Justice Kagan, that “it is critically important to have a well-functioning sphere of expression, in which citizens have access to information from many sources. That is the whole project of the First Amendment.”² In Moody, social media platforms claimed that their expressive freedom had been violated by state laws mandating certain content-moderation policies.³ Although Moody was decided on the criteria required to bring a facial challenge, it nonetheless provided some direction with respect to what the government can and cannot do vis-à-vis the First Amendment rights of social media platforms.⁴

This decision also implicitly raises the question of what it means for a democracy to have a well-functioning political speech environment in the digital era. This question seems particularly urgent given the profound dilemma that social media poses for democratic theory and practice. On the one hand, social media democratizes communication and promotes egalitarianism by reducing the cost of speech.⁵ It provides new avenues for expression and association, thereby strengthening public discourse. It has also been harnessed to enable citizen participation in political decision-making.⁶ On the other hand, social media can undermine democratic functioning, giving rise to various challenges such as disinformation, echo chambers, troll armies, bots, microtargeting, citizen distrust, and foreign election interference.⁷ As various attempts at election subversion, including the attack on the Capitol, demonstrate, election disinformation can have damaging and destabilizing effects on democracy and can diminish the confidence that citizens have in elections. The ongoing stability of political institutions should not be taken for granted in our era of democratic decline.⁸

Although free speech has always posed this particular dilemma—both essential for, yet potentially injurious to, democracy—key features of the new digital era raise questions as to whether conventional regulatory approaches are sufficient to safeguard the public sphere. Social media platforms enjoy unprecedented asymmetries of wealth and power as compared to their users. These platforms play a crucial role in providing and regulating the online speech environment⁹ and, hence, in constructing a significant dimension of public discourse. Aside from their dominance, these powerful social media platforms were not created to provide a healthy expressive realm for democracy. Instead, they engage in “surveillance capitalism”—a behavioral advertising business model that sells users’ data for immense profits.¹⁰ This profit motive arguably renders the platforms unreliable as self-regulators.¹¹ The outsized power of social media platforms to shape the expressive sphere, combined with their non-public regarding orientation, raises genuine concerns about the ongoing health of the political marketplace of ideas.

While the overwhelming power of the state has always—and rightly—been viewed as particularly perilous for the freedom of speech, dominant private actors, particularly those who either control or have disproportionate access to the means of communication, can likewise pose a threat to free speech. Is it possible to address such asymmetries of power consistent with the First Amendment? Should social media platforms be regulated to provide for the type of speech environment necessary for democracy? What are the normative attributes of a well-functioning sphere of political expression? More generally, what should be done to protect listeners, a category of democratic actor that tends to receive less scholarly attention than speakers?

This Article offers a preliminary analysis of these issues. It is organized in three parts. Part I begins by providing a brief overview of First Amendment doctrine as it applies to speakers and listeners. In addition, it outlines the three principal values—democracy, autonomy, and truth-seeking—that animate the First Amendment. For the purposes of the ensuing analysis, this Article adopts the view that the First Amendment is geared to promoting democratic self-government. Part I then sets out a normative account of a healthy expressive realm. A well-functioning political speech environment for speakers and listeners, I suggest, is one that is free of domination and coercion and in which acute asymmetries in political and economic power do not distort the capacity of individuals to engage in self-government, principally with respect to three central activities: (1) informed voting; (2) discussion and deliberation; and (3) meaningful participation. I claim further that the speech environment ought to protect individuals’ liberty, equality, epistemic, and nondomination interests in order to foster a healthy sphere of expression for these self-governing activities.

While this Article sets out an admittedly idealized account of what a well-functioning political speech environment would entail, and while such an account may never be attained in full (or even in part), a normative theory provides, I suggest, a useful benchmark by which to assess current challenges and their possible regulatory solutions.¹² To this end, Part I also identifies certain challenges posed by the digital public sphere, and, in addition, advances a claim of “digital exceptionalism”—the idea that the online world of expression has distinctive features that not only distinguish it from the non-digital world but that also pose unique and profound difficulties for the attainment of a well-functioning expressive realm.

Part II turns to First Amendment jurisprudence to see whether it enables the government to address the challenges posed by the digital world so as to provide for a well-functioning political speech environment. It begins by describing the positive conception of the First Amendment, under which the state is viewed as having an affirmative role in protecting the democratic public sphere from the distortive influence of powerful private entities. Part II then offers a snapshot view of the current law of public discourse, focusing in particular on campaign finance regulation and the Moody decision, to show that the Court has largely abandoned the positive conception in favor of an approach that prohibits the government from ensuring a greater diversity of expression.

While the Court’s approach protects listeners from the power of the state, it gives rise to the troubling conundrum that the political speech environment is left unprotected not only from the dominant power of private tech giants but also from the deficits of the digital public sphere. Neither the state nor the platforms protect listeners from the effects of acute asymmetries of private power. Indeed, many regulatory responses to the challenges of digital exceptionalism would likely fall afoul of the First Amendment. For this reason, the sizeable gap between the normative ideal of a well-functioning political speech environment and the often disheartening reality of the digital public sphere cannot be closed by contemporary First Amendment doctrine.

In response to this conundrum, Part III makes an argument for “countervailance,” which is, in essence, the idea that certain mechanisms could counter, or at least lessen, these asymmetries in power and their resulting deficits such that listeners’ interests are better protected, even if that protection does not rise to the level of establishing the kind of equality needed for self-governance. I briefly consider a suite of countervailing mechanisms—including disclosure and transparency rules, a narrow prohibition of false election speech, strategies to manage deepfakes, state-led incentives structures and norms, public jawboning, and civil society efforts—that can be deployed by public entities, social media platforms, and civil society institutions. Given First Amendment constraints, however, these measures are necessarily modest in their scope and cannot serve as full-blown solutions to the challenges of digital exceptionalism.

I. A Well-Functioning Speech Environment and its Challenges

This Part sets out a normative account of a well-functioning political speech environment. It also argues for “digital exceptionalism”—the idea that the challenges faced by the digital public sphere are unique and may therefore require a tailored regulatory response. To ground the discussion, I begin with a brief overview of First Amendment values and doctrine as they apply to speakers and listeners.

A. Speakers, Listeners, and the First Amendment

In his philosophical examination of the freedom of expression, T.M. Scanlon identifies three groups of interests: those of participants, audiences, and bystanders.¹³ Burt Neuborne’s Madisonian reading of the First Amendment likewise identifies a range of participants in a “neighborhood” of expressive freedom, including, most prominently, speakers and listeners.¹⁴ For Neuborne, listeners ought to be treated as equal partners, who, like speakers, require expressive freedom to develop their own identities and preferences.¹⁵ Speakers and listeners thus go hand in hand: the “free flow of ideas and information generated by autonomous speakers” is “essential to the ability of hearers to make the informed decisions on which the efficient functioning of choice-dependent institutions like democracy, markets, and scientific inquiry depend.”¹⁶

In First Amendment doctrine, however, listener interests play a limited role; indeed, such interests are typically protected to the extent that they correspond to speaker interests.¹⁷ To be sure, the underlying logic of the categorical approach to First Amendment jurisprudence—under which the Supreme Court has created tiers of speech based on the value of particular kinds of speech to public discourse—is implicitly oriented to the perspective of listeners.¹⁸ For instance, political speech is afforded maximum protection because it provides indispensable information for citizens to fulfill their democratic roles, while libel is accorded no value because defamatory statements do not enhance, and indeed detract from, reasoned discourse.

The Supreme Court has also recognized that under the First Amendment, listeners may enjoy a “right to know” or an “independent right to receive information.”¹⁹ Indeed, the right of listeners to receive a free flow of information has served as the basis of the First Amendment’s protection of commercial and corporate speech.²⁰ However, in the face of the Court’s increasingly deregulatory posture toward commercial speech, critics have argued that rather than protecting listener interests, the Court has subordinated them to corporate speech rights.²¹ Although speaker interests usually trump listener interests in the event of a conflict, there are some circumstances outside of public discourse in which listener interests can prevail. As Helen Norton explains, when “listeners have less information or power than speakers,” the law can prohibit speakers from providing false information or can require truthful disclosures with respect to, for example, consumer products or professional speech.²² The Supreme Court’s deregulatory turn on compelled professional speech,²³ however, has created uncertainty about the status of a broad range of consumer-protective regulations.²⁴

For both speakers and listeners, there are three principal values that animate the First Amendment: democratic self-government; autonomy or self-fulfillment; and truth seeking through the marketplace of ideas.²⁵ An additional value proposed by Vincent Blasi—checking the abuse of power—also seems particularly relevant for democratic self-government.²⁶ On this view, the freedoms of speech, assembly, and a free press provide a crucial countervailing force for checking the abuse of power by public officials.

However, there is considerable debate as to which value is predominant. According to Alexander Meiklejohn’s influential theory, the First Amendment is exclusively geared to producing a democratic system of government; hence, “[w]hat is essential is not that everyone shall speak, but that everything worth saying shall be said.”²⁷ Owen Fiss likewise argues that the “purpose of free speech is not individual self-actualization, but rather the preservation of democracy, and the right of a people, as a people, to decide what kind of life it wishes to live.”²⁸ On this view, individual autonomy is simply a means to achieve collective self-determination.²⁹

For Robert Post, however, the value of autonomy is inseparable from democratic self-government because democracy depends on the active participation of citizens.³⁰ Public discourse and free public debate—and, by extension, the autonomy of speakers—must be protected in service of democratic government.³¹ Some scholars place primacy on individual autonomy or self-realization apart from self-government,³² on the basis that, following Kant, all individuals possess the right to be treated as ends in themselves.³³ Finally, the value of truth seeking emphasizes the First Amendment’s role in protecting, and indeed maximizing, the free flow of information, in order for society to better pursue the truth. As stated by Justice Holmes, “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”³⁴

This Article takes the view, as expressed by Cass Sunstein, that the First Amendment is “fundamentally aimed at protecting democratic self-government.”³⁵ The other values—autonomy, truth seeking, and checking the abuse of power—will be treated as serving the democracy value.

A related, but conceptually distinct, question concerns the role of the democratic state: should the government regulate speech in order to promote the democracy value? There are two competing constellations of ideas, which correspond roughly with the libertarian and egalitarian approaches to speech. The libertarian approach asserts that state regulation of speech is particularly dangerous for democracy. Speech itself is a form of power: it enables citizens to hold leaders to account and check the abuse of official power. Given state incentives to stifle dissent and criticism, content-based regulations of speech are prohibited save for a few tightly circumscribed and justified exceptions for particularly disfavored speech such as obscenity or libel.³⁶ The overall posture is one of distrust of government,³⁷ in keeping with what Vincent Blasi has termed the “pathological perspective,” whereby the First Amendment is “targeted for the worst of times.”³⁸ Under the libertarian approach, expressive liberties are best served by minimizing state regulation, thereby enhancing the free flow of information in the marketplace of ideas. In general, this constellation of ideas is associated with a negative rights approach to the First Amendment, under which the role of the state is to refrain from interfering with citizens’ freedom of speech.

The second, and opposing, constellation of ideas holds that the primary value of a system of free expression is to enable citizens to “to arrive at truth and make wise decisions, especially about matters of public import.”³⁹ Under the egalitarian approach, listeners have an interest in being exposed to a wide range of competing views.⁴⁰ However, due to certain factors, such as, for example, the cost of political advertising in the campaign finance context, the marketplace of ideas may be skewed toward elite viewpoints. Listeners would thus be deprived of hearing the full range of ideas and political preferences necessary to reach an informed decision. To ensure that listeners are fully informed, the government may have to impose restrictions in order for all points of view to have a roughly equal opportunity of being heard.⁴¹ As described in more detail below,⁴² this constellation of ideas is associated with a positive rights approach to the First Amendment, under which the government may have to take affirmative steps to protect individuals’ expressive freedoms.

B. A Normative Account of a Well-Functioning Speech Environment

As Justice Kagan observed, a “well-functioning sphere of expression” is “the whole project of the First Amendment.”⁴³ But what does it mean to have such a sphere of expression?⁴⁴ This Article argues, as a normative matter, for the promotion of a well-functioning political speech environment for speakers and listeners, one that is free of domination and coercion, and in which acute asymmetries in political and economic power do not distort the capacity of individuals to engage in various self-governing activities, including the following:

(1) Informed Voting: individuals form opinions on public matters based on reliable information in both digital and non-digital mediums, with access to a wide array of competing viewpoints, thereby engaging in informed voting;

(2) Discussion and Deliberation: individuals engage in discussion and deliberation with other citizens whether online or in person as an integral and ongoing democratic practice necessary to self-governing activities, including but not limited to voting; and

(3) Meaningful Participation: individuals participate meaningfully in the democratic process through a variety of avenues, including voting, deliberating, associating with others whether online or in-person, organizing events, consuming or producing political content online, petitioning, and the like, thereby ensuring governmental responsiveness and accountability.

The idea is that democratic citizens should be able to participate in the democratic process with full knowledge and equal freedom.

To foster a healthy expressive realm for these self-governing activities, I further claim that the speech environment ought to protect individuals’ liberty, equality, epistemic, and nondomination interests. The protection of these interests, I suggest, is required to ensure that public discourse is organized and conducted in a manner that serves the value of democratic self-government. To be sure, there will inevitably be conflicts among these interests that would require certain choices and tradeoffs to be made.⁴⁵ These interests may also overlap in various ways such that a given outcome could be described as involving, say, both equality and epistemic considerations. While it is beyond the scope of this Article to provide a full account of these interests and their possible conflicts, a few preliminary observations follow.

As described above with respect to the libertarian approach, individuals’ liberty interests are best served by the robust protection of their expressive and associational freedoms under the First Amendment.⁴⁶ Speakers ought to be able to freely express their political opinions and policy preferences, while listeners’ right to know should likewise be shielded from government censorship. In addition to their liberty interests, citizens have equality interests in being exposed to speech that reflects a wide range of competing views, ideas, and political preferences. As described above with respect to the egalitarian approach, the government may have to take affirmative steps to protect listeners’ equality interests in hearing a wide range of viewpoints because the marketplace of ideas may be skewed in favor of elite viewpoints.⁴⁷ The speech environment should also protect citizens’ epistemic interests in receiving accurate and reliable information, which is required for reaching good judgments. As Melissa Schwartzberg observes, these epistemic interests ought to also be understood to encompass the kinds of institutions and instruments needed to develop, inform, and assess such judgments.⁴⁸ To be sure, epistemic interests may overlap with equality intersts to the extent that good judgments depend upon an exposure to a wide range of viewpoints.

Finally, a healthy expressive environment should also protect democratic actors from domination or coercion. As Philip Pettit argues in his influential account of republican freedom, an individual has dominating power over another person to the extent that they have the capacity to interfere on an arbitrary basis in certain choices that the other is in a position to make.⁴⁹ An act of interference is arbitrary to the extent that the dominating agent is not forced to track the avowable or relevant interests of the victim but instead can interfere as their will or judgment dictates.⁵⁰ Individuals’ nondomination interests broadly capture the idea that speakers and listeners ought to be protected from the capacity of powerful agents, whether public or private, to interfere arbitrarily in their choices.⁵¹

While these four interests—liberty, equality, epistemic, and nondomination—apply to all three self-governing activities, they take different forms depending on the context. In addition, the self-governing activities overlap in various ways: meaningful participation may require informed discussion, for example. The discussion below provides additional details for each self-governing activity.

Informed Voting

Freedom of speech is a precondition for informed voting. As noted by the Supreme Court, the First Amendment has the objective of “securing . . . an informed and educated public opinion with respect to a matter which is of public concern.”⁵² Voters learn about the key issues at stake in the election, the differences among political candidates, and the main features of the platforms of various political parties. As Meiklejohn observes, the well-being of the political community depends on the wisdom of voters to make good decisions.⁵³ For voters to make wise decisions, they must be aware, to the extent possible, of all the relevant facts, issues, considerations, and alternatives that bear upon their collective life.

Thus, a well-functioning political speech environment provides voters with epistemically reliable information on matters of public import from a wide range of competing sources and perspectives. For this to take place, speakers’ liberty interests must be fostered, and listeners’ equality, epistemic, and nondomination interests must be satisfied. Under these conditions, listeners as voters have access to the information they need to understand matters of public concern.

Discussion and Deliberation

Discussion and deliberation are crucial activities for those individuals we formally deem to be speakers. However, listeners are also, at times, speakers. Listeners do not develop their views in a vacuum: the activities of discussion and deliberation require democratic listeners to engage with others as they evaluate matters of public importance. The idea here is one of active listening, which involves not just the passive receipt of information but requires discussion and debate. Informal conversations among listeners enable them to consider issues of public policy and to make up their minds about what is best for their common lives—activities that lie at the heart of self-government. The First Amendment is principally concerned with the “authority of the hearers to meet together, to discuss, and to hear discussed by speakers of their own choice, whatever they may deem worthy of their consideration.”⁵⁴

As such, the normative account offered here departs in significant ways from Habermas’s formal account of ideal deliberation. Habermas’s theory of the “ideal speech situation” envisions a reasoned discussion among free and equal participants who aim for consensus by being persuaded by the force of the better argument.⁵⁵ Formal accounts of deliberative democracy, while differing in various respects, all tend to share a commitment to reaching collective decisions through public reasons, that is, reasons that are generally persuasive to all the participants in the deliberation.

However, in my view, this ideal form of deliberation is not mandatory in order to achieve a well-functioning sphere of expression. Instead, as John Dryzek observes, deliberation can include informal discussion, humor, emotion, and storytelling.⁵⁶ Rather than requiring consensus, we should instead focus on the values of mutual respect, reciprocity, cooperation, and compromise.⁵⁷ That being said, a basic predicate of a well-functioning speech environment is that speakers and listeners can engage in discussion, debate, and deliberation free of coercion, harassment, and deception.

To be sure, deliberation has come under criticism for being exclusionary because it tends to favor advantaged citizens.⁵⁸ Critics have also charged that deliberation is simply unfeasible given the complexity of democratic institutions⁵⁹ or is difficult to realize in practice given the realities of electoral campaigns.⁶⁰ In addition, deliberation may accentuate group polarization.⁶¹ These criticisms underscore the need for a more capacious and inclusive understanding of deliberation.

Meaningful Participation and Governmental Responsiveness

A well-functioning political speech environment must also facilitate meaningful participation by listeners and speakers. Participation can take many forms, including voting and deliberating, but can also include such activities as joining a political party, attending a town hall or a candidate rally, volunteering for a political cause, penning an op-ed, marching and protesting, organizing a petition, or running for office. Meaningful participation has online analogues, such as reading or posting messages on social media platforms, consuming or developing political content, reading or writing blogs, listening to podcasts, or running websites. Citizens engage in meaningful participation when they criticize public officials or government policies. Or when they join forces with like-minded others and vote for change. Or when they organize to influence public policy and legislation. All of these activities depend upon a robust sphere of expressive freedom.

Meaningful participation could also be understood as requiring a relatively equal opportunity to influence the outcome of an election. On this view, listeners as voters would have a strong interest in ensuring a somewhat level electoral playing field.⁶² Meaningful citizen participation is also crucial for ensuring governmental responsiveness and accountability. By communicating and associating with one another, citizens can join together to vote for new political leaders. The threat of being removed from office in the next election is one of the most effective mechanisms for ensuring governmental accountability. A well-functioning speech environment is thus indispensable to ensure that state power is responsive to the interests of citizens.

C. Digital Exceptionalism

Does the digital public sphere provide the conditions necessary to foster a well-functioning political speech environment? In what follows, I identify the central features of what I shall call “digital exceptionalism,” the idea that the digital public sphere has distinctive features that not only distinguish it from the non-digital world but that also pose unique challenges for the promotion of a healthy expressive realm.

A principal challenge is that social media platforms wield vast “asymmetries of knowledge and power” over their users.⁶³ The platforms act as private governors of online speech—enacting, implementing, and enforcing the rules that govern online expression.⁶⁴ In addition, their power is remarkably concentrated: the digital public sphere is controlled in the main by three companies—Apple, Google, and Meta—that serve as the gatekeepers to online public discourse.⁶⁵ To be sure, the media landscape in the pre-digital age was likewise highly concentrated: three networks shaped the news on television and a small handful of newspapers comprised the national market.⁶⁶ This concentration of pre-digital media power is likewise problematic for it undoubtedly reduced the plurality of differing points of view. However, certain mitigating features of the pre-digital public sphere are either absent, or greatly attenuated, in the digital world, and conversely, certain features unique to the digital world amplify the dangers posed by these power asymmetries. I briefly canvass a few of the relevant distinctions, noting, first, that these observations capture general trends and, second, that there are, of course, notable exceptions to each of these distinctions.

The first difference is that the pre-digital news media exerted a “strong gatekeeper” approach as compared to the “weak gatekeeper” approach of social media platforms.⁶⁷ The traditional news media is bound by journalistic standards of objectivity and factual reliability. By contrast, social media platforms impose far fewer gatekeeping controls: while they filter certain prohibited topics such as graphic violence and pornography and rank or label other sorts of disfavored messages, there is far less ex ante quality control. Indeed, as of this writing, Meta has announced that it will eliminate fact checkers in the U.S. and rely instead on a “community notes” system similar to X (formerly Twitter).⁶⁸

Second, as a result of this weak gatekeeping, there is said to be higher levels of misinformation on social media platforms. For example, Elon Musk’s false or misleading claims about elections accrued nearly 1.2 billion views on the social media platform X.⁶⁹ Recent empirical evidence suggests, however, that the degree of exposure to misinformation tends to be overstated with respect to the vast majority of users, at least in North America and Europe.⁷⁰ Jurisdictions that rely heavily on social media, however, may have different outcomes. For instance, digital misinformation has proved to be a serious challenge in Brazil, with 90% of Bolsonaro supporters believing at least one piece of fake news in 2018.⁷¹ In addition, deepfake technology may pose significant challenges for public discourse in the future.⁷² This is particularly true as the capacity to generate deepfakes using generative AI will soon outstrip both the platforms’ and users’ ability to detect them.⁷³ A counterpoint, however, is that AI was used extensively, reportedly in a largely successful manner, in India’s recent national election, wherein politicians connected with voters by including deepfake impersonations of candidates and deceased politicians in campaign materials.⁷⁴

A third difference is that social media platforms create a loss of epistemic trust. The decline in trust, rather than truth, may ultimately prove to be more damaging to the public sphere. Experimental evidence suggests that while exposure to deepfakes did not mislead participants, it left them feeling uncertain about the truthfulness of content.⁷⁵ This uncertainty, in turn, led to lower levels of trust with respect to news on social media. Researchers surmise that an increase in political deepfakes “will likely damage online civic culture by contributing to a climate of indeterminacy about truth and falsity that, in turn, diminishes trust in online news.”⁷⁶ Epistemic distrust “can severely undermine a sense of democratic legitimacy among large parts of society.”⁷⁷ The decay of trust also benefits leaders with authoritarian impulses.⁷⁸ By contrast, in the pre-digital world, misinformation in public discourse was counteracted by civil society organizations, in particular the traditional news media, which maintained common standards for accuracy and objectivity, thereby instilling widespread trust in epistemic authorities.⁷⁹

Fourth, social media platforms generate “epistemic fragmentation”—the idea that citizens no longer share a common set of facts and understandings about political life.⁸⁰ Social media platforms tailor content for each user, leading to what Sunstein has dubbed “the Daily Me.”⁸¹ Platforms also enable political campaigns to engage in microtargeting so that political advertising messages vary depending on the race and gender of the recipient. By contrast, citizens under the traditional news media paradigm were more likely to engage with the same news stories.⁸² This fragmentation has compounded challenges to epistemic trust because “citizens no longer trust the same sources of information, and the reliability of the sources they do trust varies substantially.”⁸³

A fifth difference is that social media platforms rely on behind-the-scenes algorithms to do the vast majority of content filtering, in an effort to provide listeners with the kind of filtered experience that each user is seeking.⁸⁴ Because the predominant characteristic of the expressive environment online is the scarcity of listener attention, an important “means of controlling speech is targeting the bottleneck of listener attention, instead of speech itself.”⁸⁵ As a result of this algorithmic filtering, Erin Miller argues that media companies could exert “skewing power” over certain “consumers’ information pools in a way that prevents them from forming epistemically justified beliefs.”⁸⁶

Finally, social media platforms “were not created principally to serve democratic values and do not have as their lodestar the fostering of a well-informed and civically minded electorate.”⁸⁷ Instead, the platforms engage in “surveillance capitalism,” trading users’ behavioral data for vast profits.⁸⁸ This behavioral advertising business model depends on maximizing the amount of time users engage with social media. A variety of deleterious phenomena are thus good for the bottom line, including addictive behavior, sensationalist and divisive content, and weakened privacy norms.⁸⁹ Unlike the traditional news media, internet platforms “are not built to create a digital public sphere of common concern.”⁹⁰ In addition, the platforms’ system of private governance threatens citizens’ opportunities to engage meaningfully in democratic participation, particularly in light of their lack of accountability to users.⁹¹

These features of the digital public sphere, taken together, raise serious questions about whether the online speech market provides the conditions necessary to sustain a well-functioning political speech environment. As of this writing, the asymmetry of power between platforms and users has arguably been heightened by the intertwining of governmental and private tech interests. Because social media platforms exert asymmetrical power on users in a way that does not track the public interest, this gives rise to the apprehension that listeners’ interests in nondomination are not satisfied. By contrast, selection intermediaries that act in public-regarding ways, such as a well-run national broadcasting corporation, do not pose the same degree of risk. To be sure, traditional media could also exert dominating power on their listeners to the extent they are not forced to track listeners’ avowable interests in a well-functioning public sphere. What matters is whether the selection intermediary is upholding public-regarding standards such as the provision of accurate information and a diversity of competing viewpoints.

Digital exceptionalism does not mean that the government must intervene in a way that differs from its regulation of traditional news media. Instead, the distinctive features of the digital public sphere suggest that a specialized and tailored set of regulatory responses may be warranted to foster a well-functioning speech environment. Jack Balkin’s distinction between the “old-school” speech regulation of the predigital world and the “new school” speech regulation of digital intermediaries seems applicable.⁹² Finally, the concerns raised here do not amount to a blanket condemnation of social media platforms. These platforms provide a range of goods such as entertainment, commerce, convenience, and connection that are rightly valued by consumers.

II. Law and the Speech Environment

To what extent is the normative account outlined in Part I reflected in First Amendment jurisprudence? Or to put the question another way: does the First Amendment offer any conceptual resources that would enable the government to respond to the challenges posed by digital exceptionalism? While it is beyond the scope of this Article to provide a comprehensive answer to these questions, this Part begins by briefly describing the positive conception of the First Amendment, under which the state’s role is to affirmatively protect the democratic public sphere from powerful private actors. Part II then offers a snapshot view of the current law of public discourse,⁹³ focusing in particular on campaign finance regulation and the Moody decision to show that the Supreme Court has for the most part abandoned the positive conception and, as a result, has significantly restricted the range of allowable regulatory responses to the deficits of digital exceptionalism.

A. The First Amendment as a Positive Right

A positive conception of the First Amendment, as mentioned above, holds that the government may have to take affirmative steps to protect expressive freedom from powerful private entities.⁹⁴ Owen Fiss asserts, for instance, that “the impact that private aggregations of power have upon our freedom” means that “sometimes the state is needed simply to counteract these forces.”⁹⁵ The state has a duty to “preserve the integrity of public debate” in order to “safeguard the conditions for true and free collective self-determination.”⁹⁶ In keeping with this duty, the state may have to intervene to protect the “robustness of public debate in circumstances where powers outside the state are stifling speech.”⁹⁷ Sunstein argues for a “New Deal for speech” under which the supposed democratic interferences with the autonomy of private actors are not abridgements of speech; indeed, the autonomy of private actors is itself a product of law and may amount to an abridgment.⁹⁸ As such, “what seems to be government regulation of speech might, in some circumstances, promote free speech, and should not be treated as an abridgment at all.”⁹⁹

As Genevieve Lakier observes, the Supreme Court understood the freedom of speech as having a positive dimension during the New Deal and Warren Court eras.¹⁰⁰ That is, the First Amendment did not only provide individuals with personal expressive freedom; it also provided them with the means for democratic self-government.¹⁰¹ For example, in Red Lion Broadcasting Co. v. FCC, the Supreme Court upheld, against a First Amendment challenge, the FCC’s fairness doctrine, which required broadcasters to provide adequate and fair coverage to public issues in a way that accurately captured competing viewpoints.¹⁰² According to the Court, the fairness doctrine furthered the “First Amendment goal of producing an informed public capable of conducting its own affairs.”¹⁰³ However, in the ensuing years, the Court has largely abandoned the positive conception of

the First Amendment,¹⁰⁴ including in the campaign finance context, as discussed below.

B. Public Discourse and Campaign Finance Regulation

The Supreme Court has interpreted the First Amendment as providing the highest possible protection to public discourse due to its centrality to self-government. One of the main ways in which public discourse—specifically electoral speech—is regulated is through campaign finance law.¹⁰⁵ In recent years, the Supreme Court has taken a deregulatory posture to campaign finance law, striking down significant parts of the legal infrastructure governing money in politics. This skepticism was apparent in an early landmark case, Buckley v. Valeo,¹⁰⁶ in which the Court struck down limits on campaign expenditures because they were not justified by the government’s interest in preventing the actuality and appearance of corruption. In Buckley, the Court explicitly rejected the egalitarian—or equalization—rationale, stating that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”¹⁰⁷ Hence, the “governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections” did not justify expenditure limits.¹⁰⁸ The Buckley court found, however, that limits on campaign contributions were justified by the government’s interest in preventing corruption and its appearance. The provision of large contributions “to secure political quid pro quos from current and potential office holders” undermined the integrity of representative democracy.¹⁰⁹

In a subsequent decision, Austin v. Michigan State Chamber of Commerce,¹¹⁰ the Supreme Court broadened the definition of corruption beyond quid pro quo corruption to encompass the concept of antidistortion which arose from the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”¹¹¹ The antidistortion concept was ultimately based on an equality rationale.¹¹² Concentrated corporate wealth gives certain voices far greater political influence than others due to the fact that speech is expensive.¹¹³ As a result of these inequities in speech capacities, listeners do not have access to the full range of views, which may affect their voting patterns and, hence, skew electoral outcomes. In McConnell v. FEC,¹¹⁴ the Court held that corruption also encompassed the “undue influence on an officeholder’s judgment, and the appearance of such influence.”¹¹⁵ Undue influence arises when political parties sell special access to federal candidates and officeholders, thereby creating the perception that money buys influence. The undue influence standard is concerned with the skew in legislative, rather than electoral, outcomes.

The Supreme Court’s decision in Citizens United v. FEC,¹¹⁶ however, marked a turning point, implicating listener interests in at least four ways. First, the Supreme Court rejected Austin’s antidistortion rationale on the basis that it was actually an equalization rationale in violation of Buckley’s central tenet that the First Amendment prevents the government from restricting the speech of some in order to enhance the voice of others. The Court held that preventing quid pro quo corruption or the appearance thereof was the only governmental interest strong enough to overcome First Amendment concerns. Listener interests in the maintenance of a relatively level electoral playing field were undercut by this decision. In other cases, the Court has rejected equality-based arguments on the grounds that leveling the electoral playing field is impermissible under the First Amendment.¹¹⁷

Second, the Court held in Citizens United that corporations were henceforth allowed to spend unlimited sums from their general treasury funds as independent expenditures. According to the Court, independent expenditures do not give rise to the actuality or appearance of quid pro quo corruption. This reasoning gave rise to the emergence of Super PACs. In a subsequent case, SpeechNow.org v. FEC,¹¹⁸ a lower court struck down contribution limits on PACs that engaged exclusively in independent spending—entities that are now known as Super PACs. Super PACs can accept unlimited contributions from individuals, corporations, and labor unions to fund independent ads supporting or opposing federal candidates. Listener interests are arguably undermined by the phenomenon of Super PACs: these entities have changed the political landscape by flooding huge sums of money into elections.¹¹⁹ Not only is coordination with candidates a reality,¹²⁰ but Super PACs lack accountability and transparency relative to political parties and candidates, thereby further decreasing the influence of individual listeners on the democratic process.

Some may argue, however, that the increases in corporate advertising, and hence in available information, are beneficial to listeners. Indeed, the Court majority in Citizens United took this position, stating that the “right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”¹²¹ The Court also asserted that “it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes.”¹²²

Third, Citizens United and the deregulatory turn it ushered in, has broader implications for democracy. Money skews legislative priorities because it provides legislative access to large donors and lobbyists.¹²³ While access does not guarantee legislative outcomes, it is required to exert political influence. As such, officeholders are disproportionately responsive to the wishes of large donors than to other constituents.¹²⁴ Empirical studies have shown, for instance, that elected representatives are more responsive to the preferences of the affluent than to the preferences of low-income and middle-income individuals.¹²⁵ The emphasis on the donor class disproportionately impacts the participation and representation of people of color and ordinary citizens.¹²⁶ Empirical research has demonstrated that donors “are not only wealthy, they are almost all white.”¹²⁷ This racial gap has an impact on representation by affecting the electoral candidate pool and the behavior of legislators in office.¹²⁸

Finally, listener interests were at issue in the Court’s holding that disclosure and disclaimer requirements survived exacting scrutiny. The Court found that disclosure was “justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.”¹²⁹ The transparency resulting from disclosure “enables the electorate to make informed decisions and give proper weight to different speakers and messages.”¹³⁰ Abby Wood argues that disclosure provides multiple informational benefits for voters.¹³¹ By contrast, critics argue that disclosure rules violate privacy and raise the risk of retaliation. In a recent decision, Americans for Prosperity Foundation v. Bonta,¹³² however, the Supreme Court has made it easier for disclosure laws to be found unconstitutional.¹³³

C. Public Discourse and Social Media Platforms

In the campaign finance realm, listeners’ liberty interests in unrestricted access to the commercial speech market are protected. However, their equality interests in a relatively level electoral playing field are significantly undermined. A similar pattern is evident in the emerging law of social media platform regulation. Listeners’ liberty interests are largely protected on social media platforms given the sheer volume of information available, but their equality interests in a level electoral playing field, an open deliberative sphere, and access to competing viewpoints appear to be compromised in the online world. As described in Part I.C above, listeners’ epistemic and nondomination interests are likewise threatened as a result of the key features of digital exceptionalism.

In Moody v. NetChoice, LLC,¹³⁴ the Court considered the constitutionality of state laws from Florida and Texas that restricted the ability of social media platforms to engage in content moderation. The laws required internet platforms to carry speech that might otherwise be demoted or removed due to the platforms’ content moderation policies.¹³⁵ The laws also required a platform to provide an individualized explanation to any user whose posts had been altered or removed.¹³⁶ The states’ underlying concern was that the platforms were politically biased and were unfairly silencing the voices of conservative speakers.¹³⁷ NetChoice, an internet trade association, brought facial challenges to the laws. The U.S. Court of Appeals for the Eleventh Circuit upheld a preliminary injunction, finding that the Florida law likely violated the First Amendment.¹³⁸ However, the Court of Appeals for the Fifth Circuit reversed a preliminary injunction of the Texas law, partially on the basis that the platforms’ content moderation activities did not amount to speech, and hence did not infringe the First Amendment.¹³⁹

Writing for the Supreme Court in Moody, Justice Kagan vacated the lower court decisions and remanded the cases, on the grounds that there was an insufficient record to sustain a facial challenge.¹⁴⁰ While the Court was unanimous that NetChoice’s facial challenge had failed, Justice Kagan, speaking for a six-member majority,¹⁴¹ nonetheless proceeded to provide substantive guidance as to how the lower courts should conduct the facial analysis.

The Court majority’s central proposition was that the laws in question infringed the First Amendment rights of large social media platforms (specifically with respect to Facebook’s NewsFeed, YouTube’s homepage, and the like). Drawing an analogy to newspapers, the Court asserted that such platforms should be viewed as speakers with the right to compile and curate the speech of others. Justice Kagan relied on Miami Herald Publishing Company v. Tornillo,¹⁴² in which the Court had struck down a right-of-reply law that required newspapers to print the reply of any political candidate who received critical coverage in their pages. In Tornillo, the Court held that the First Amendment protects newspaper editors in their “exercise of editorial control and judgment.”¹⁴³ The Court majority drew upon additional cases—involving a private utility’s newsletter (Pacific Gas and Electric Co. v. Public Utilities Commission of California),¹⁴⁴ must-carry rules for cable operators (Turner Broadcasting System, Inc. v. FCC),¹⁴⁵ and regulations affecting parades (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.)¹⁴⁶—to find that the First Amendment prohibits the government from directing a private entity to include certain messages where that entity is curating the speech of others to create its own expressive product.¹⁴⁷

In the same way, the curating activity of social media platforms amounts to expressive activity protected by the First Amendment. Justice Kagan noted that Facebook’s News Feed and YouTube’s homepage use algorithms to create a personalized feed for each user.¹⁴⁸ Their content moderation policies filter prohibited topics, such as pornography, hate speech, and certain categories of misinformation, and rank or label disfavored messages. In making these choices, social media platforms “produce their own distinctive compilations of expression.”¹⁴⁹ The Moody majority thus appears to have resolved the debate as to whether platforms should be treated as publishers or as common carriers under the First Amendment (at least with respect to Facebook’s NewsFeed and the like).¹⁵⁰

Consistent with the campaign finance context, the Court majority was adamant that the First Amendment prevents the state from interfering with “private actors’ speech to advance its own vision of ideological balance.”¹⁵¹ Government may not “decide what counts as the right balance of private expression,” and must instead “leave such judgments to speakers and their audiences.”¹⁵² This principle holds true even when there are credible concerns that certain private parties wield disproportionate expressive power in the marketplace of ideas. The majority noted that the regulations in Tornillo, PG&E, and Hurley “were thought to promote greater diversity of expression” and “counteract advantages some private parties possessed in controlling ‘enviable vehicle[s]’ for speech.”¹⁵³ The Court also drew on its campaign finance jurisprudence, citing Buckley’s proposition that the government may not “restrict the speech of some elements of our society in order to enhance the relative voice of others.”¹⁵⁴ Justice Kagan argued that “[h]owever imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others.”¹⁵⁵

In a concurring judgment, Justice Alito (joined by Justices Thomas and Gorsuch) agreed with the majority’s facial unconstitutionality argument but took issue with the majority’s First Amendment analysis. Justice Alito argued that the states’ laws, at least in some of their applications, appeared to regulate passive carriers of third-party speech, which receive no protection under the First Amendment.¹⁵⁶ He criticized the majority for failing to address the states’ argument that Facebook and YouTube amount to common carriers,¹⁵⁷ as did Justice Thomas in a separate concurrence.¹⁵⁸ Justice Alito also seemed more sympathetic to the states’ concerns, noting that the content moderation decisions of social media platforms can have “serious consequences,” including impairing “users’ ability to speak to, [and] learn from,” others; impairing a political candidate’s “efforts to reach constituents or voters”; compromising “the ability of voters to make a fully informed electoral choice”; and exerting “a substantial effect on popular views.”¹⁵⁹ He described the Florida law as an attempt “to prevent platforms from unfairly influencing elections or distorting public discourse,”¹⁶⁰ in a manner reminiscent of the very antidistortion arguments that were rejected by the conservative Justices in the campaign finance context.

III. Possibilities for Countervailance

The Moody majority’s stance was consistent with a long line of precedent that has treated state control of speech with grave distrust. By “requir[ing] the platforms to carry and promote user speech that they would rather discard or downplay,”¹⁶¹ the states’ content moderation policies violated a central tenet that the government may not influence the content of speech. However, the Supreme Court’s interpretation of the First Amendment gives rise to a genuine conundrum: although this approach protects listeners from the power of the state, it does not protect the speech environment from the power of the platforms nor from the deficits that ensue from digital exceptionalism. Indeed, actions on the part of the state that would amount to an effective fix of the challenges of digital exceptionalism would very likely involve too great a governmental intrusion into expressive freedom. Hence, the gap between the ideal of a well-functioning speech environment and the challenges of digital exceptionalism cannot be resolved without dramatic changes to current First Amendment jurisprudence. As a result, there is a very narrow space for measures that might lessen the deleterious effects of digital exceptionalism without falling afoul of the First Amendment.

In light of this conundrum, this Part canvasses some possibilities for countervailance; that is, mechanisms that could lessen the deficits of the digital public sphere such that listeners’ interests are better protected, even if that protection does not rise to the level of establishing the kind of equality required for democratic self-governance. With respect to the challenge of disinformation in social media, I have argued elsewhere for a “multifaceted public-private approach that employs a suite of complementary tactics including: (1) disclosure and transparency laws; (2) content-based regulation and self-regulation; (3) norm-based strategies; and (4) civic education and media literacy efforts.”¹⁶² Using Canada as a case study, I suggested that the “combined and interactive effects of a multifaceted approach provide helpful protections against some of the harms of disinformation while still protecting the freedom of speech.”¹⁶³

A similar type of approach might be an appropriate way to think about countervailance. The idea is not that any one countervailing tactic will protect listener interests. Instead, the combined and interactive effects of a number of measures may serve as a countervailing force against the immense power of social media platforms. A caveat, however, is in order. These countervailing measures are imperfect, even deeply so, in terms of their ability to counter the challenges of digital exceptionalism. These measures will not on their own bring about a well-functioning speech environment; instead, they will bring such an environment closer to realization. Hence, the effect of this countervailance will no doubt be modest: listeners would still very much be at the mercy of the platforms. The objective would be to at least lessen the acuteness of the asymmetry and its resulting deficits.

Indeed, the majority opinion in Moody suggests that there are possibilities for regulation. Justice Kagan acknowledged, for instance, that “[i]n a better world, there would be fewer inequities in speech opportunities; and the government can take many steps to bring that world closer.”¹⁶⁴ Citing Turner I,¹⁶⁵ Justice Kagan explicitly recognized that the “government can take varied measures, like enforcing competition laws, to protect th[e] access”¹⁶⁶ to information from many sources. In recent years, the federal government has been pursuing antitrust cases against Google, Meta, and Amazon. The Court majority also noted that “[m]any possible interests relating to social media” can meet the First Amendment intermediate scrutiny test.¹⁶⁷ The Court was pointed in its assertion that “nothing said here puts regulation of NetChoice’s members off-limits as to a whole array of subjects.”¹⁶⁸

In what follows, I briefly canvass an array of countervailing mechanisms, including disclosure and transparency rules; a narrow prohibition of false election speech; strategies to manage deepfakes; state-led incentive structures and norms, including mechanisms to provide listeners with increased choices and powers of their own; public jawboning; and civil society efforts. Each of these measures warrants a far more extensive treatment—particularly with respect to their advantages and disadvantages—than I am able to offer here. Although it is beyond the scope of this brief discussion to attempt anything more than a cursory analysis, I hope that it nonetheless provides some indication of the kinds of possibilities that merit attention.

A. Disclosure and Transparency

As described above, disclosure provides multiple informational benefits for voters, including not only the content of the disclosures but also their quality and the amount of information provided.¹⁶⁹ Disclosure and disclaimers with respect to online political advertising would help to facilitate counterspeech and deter disinformation.¹⁷⁰ Disclosure would also provide listeners with the context they need to assess political advertising. That being said, the disclosure regimen in the campaign finance context is subject to various limitations, including structural barriers to connecting disclosures to voters and enforcing disclosure rules against violators.¹⁷¹ Disclosure rules have also been criticized for violating privacy, raising the risk of retaliation, chilling speech, and discouraging political participation.¹⁷²

Outside of the campaign finance context, online platforms could increase transparency about the content curation decisions they make. Transparency requirements are also an appropriate regulatory response to political disinformation.¹⁷³ Compared to other regulatory responses, transparency laws have various benefits: they provide additional information to consumers, allow for public accountability, and nudge companies to make better decisions in anticipation of public disclosure.¹⁷⁴ In his concurring opinion in Moody, Justice Alito remarked that the platforms are providing various disclosures under the European Union’s Digital Services Act, and that “complying with that law does not appear to have unduly burdened each platform’s speech in those countries.”¹⁷⁵ Justice Alito further suggested that courts on remand should investigate whether such disclosures chilled the platforms’ speech.

B. False Election Speech

In general, falsehoods and lies are constitutionally protected speech.¹⁷⁶ As Sunstein observes, “[p]ublic officials should not be allowed to act as the truth police” because if they are empowered to “punish falsehoods, they will end up punishing dissent.”¹⁷⁷ There are, of course, a few narrow exceptions to the general rule that false statements are protected speech, such as, for example, regulations concerning defamation and false or misleading advertising.

The best response to false speech is not censorship but counterspeech. As the Supreme Court plurality noted in United States v. Alvarez, “[t]he remedy for speech that is false is speech that is true. This is the ordinary course in a free society.”¹⁷⁸ Abby Wood observes that as a remedy for disinformation, counterspeech “fits well in the court’s ‘marketplace of ideas’ theory of the First Amendment.”¹⁷⁹ Lies stated by a candidate during an election campaign should likewise be addressed by the counterspeech of the candidate’s political opponent.¹⁸⁰ That being said, counterspeech is often ineffective given the realities of echo chambers and the partisan divide in the news media.

Although restrictions on false speech are generally unconstitutional, a narrowly drawn prohibition of false election speech aimed at disenfranchising voters might survive constitutional scrutiny.¹⁸¹ Such a prohibition would target the mechanics of voting. Indeed, in Minnesota Voters Alliance v. Mansky, the Supreme Court indicated that false speech about when and how to vote could be banned by the government.¹⁸² The government’s compelling interest in protecting the right to vote could serve as the justification for the law. An additional consideration is that false speech about the mechanics of voting would be difficult to redress with counterspeech particularly in the few days leading up to an election.¹⁸³

C. Deepfakes and AI

Deepfake technology poses serious threats of harm to democracy, including by distorting public discourse, eroding citizens’ trust in news media, and manipulating elections.¹⁸⁴ There have been several attempts to regulate deepfakes by the states,¹⁸⁵ such as legislation in California and Texas that prohibited the use of deepfakes within a designated pre-election period.¹⁸⁶ However, deepfakes are better regulated—by both public officials and private entities—through disclosure and counterspeech rather than by outright bans.¹⁸⁷ Disclosure requirements could, for example, label deepfakes as “altered.”¹⁸⁸

To be sure, there are real dangers to having the government determine what is true and false, which suggests that laws regulating deepfakes should be treated with caution. If platforms on their own accord institute deepfake bans, they should exempt parody, education, or art, and should provide accountability to users for any speech that is suppressed, including a meaningful opportunity to contest the decision.¹⁸⁹A growing challenge facing both public and private interventions, however, is that it will become increasingly difficult to detect deepfakes, particularly given the availability of generative AI.¹⁹⁰ As the technology advances, the capacity to create deepfakes “will diffuse and democratize rapidly.”¹⁹¹

D. Incentives and Norms

The government can also use incentive structures to pressure platforms into making responsible choices about the democratic public sphere. For example, online platforms are protected from liability for hosting third-party content under Section 230 of the Communications Decency Act—a protection that arguably encourages platforms to moderate harmful speech and thereby perform a task that the government is not permitted to do.¹⁹² Platforms may also be motivated to respond to harmful content out of a concern that the government could amend Section 230 if they fail to take action (although this eventuality is, of course, dependent on the priorities of the incumbent administration).¹⁹³ The Digital Services Act promulgated by the European Union provides a more extensive regulatory model, one that is unlikely to be adopted in the U.S. It imposes several mandatory obligations on platforms, including transparency, notice-and-takedown systems, internal complaint handling systems, deplatforming, and independent auditing.¹⁹⁴

The government could also create incentives for platforms to provide users with greater control over the content they receive. Many platforms already enable users to block or mute content they do not wish to see. However, they could take additional steps to enable users to actively moderate their own feeds.¹⁹⁵ In addition, the government could impose data interoperability requirements, thereby enabling users to easily move their data across platforms.¹⁹⁶ Platforms that violate users’ rights would lose followers in favor of rival platforms with healthier environments.¹⁹⁷ To be sure, greater user control could also lead to greater epistemic fragmentation if users choose to avoid competing viewpoints.

Public-regarding behavior could be indirectly encouraged by such mechanisms as digital charters.¹⁹⁸ These public-private norm-based initiatives “identify standards, best practices, and objectives to govern the digital world.”¹⁹⁹ For example, the Declaration of Electoral Integrity, an initiative between the Canadian government and the major platforms, endorsed the values of integrity, transparency, and authenticity as the pillars of a healthy political discourse.²⁰⁰ Another initiative, the Digital Charter, identified ten principles, including universal access; safety and security; control and consent; transparency, portability and interoperability; a level playing field; strong enforcement and real accountability.²⁰¹ Although these norm-based approaches were not legally binding, they identified democracy-enhancing norms that could serve as a “standard by which to judge actions taken or not taken.”²⁰²

E. Public Jawboning

Can public jawboning play a salutary role as a countervailance mechanism? A recent Supreme Court decision, Murthy v. Missouri,²⁰³ involves what is colloquially referred to as “jawboning,” which takes place when the government pressures private actors to take certain actions without directly using its coercive power to do so. In Murthy, the record revealed that, over the last few years, White House and other federal officials had routinely communicated with social media platforms about misinformation related to COVID-19 vaccines and electoral processes. Some of these communications were public: government officials, in response to vaccine misinformation on the platforms, opined that reforms to antitrust laws and to Section 230 of the Communications Decency Act may be in order.²⁰⁴ Other communications were private: officials in the White House, CDC, FBI, and CISA “regularly spoke” with platforms about misinformation over several years.²⁰⁵ The District Court for the Western District of Louisiana had issued a preliminary injunction, which was affirmed by the Fifth Circuit, on the basis that government officials had “coerced or significantly encouraged” the platforms to censor disfavored speech in violation of the First Amendment.²⁰⁶

In a 6-3 majority opinion by Justice Barrett, the Supreme Court overturned the Fifth Circuit’s decision on standing grounds.²⁰⁷ Dissenting in Murthy, Justice Alito (joined by Justices Thomas and Gorsuch) asserted that the issue was whether the government engaged in “permissible persuasion” or “unconstitutional coercion.”²⁰⁸ While the government may inform and persuade, it is barred under the First Amendment from coercing a third party into suppressing another person’s speech.²⁰⁹ Drawing on the Court’s approach in National Rifle Association v. Vullo,²¹⁰ Justice Alito analyzed three factors—the authority of the government officials; the nature of the statements made by those officials; and the reactions of the third party alleged to have been coerced—to find that the government had engaged in coercion.²¹¹

Ashutosh Bhagwat draws a helpful distinction between public jawboning and private jawboning: while public jawboning should rarely be considered coercive, in large part because government actors routinely hector corporations and often do so as part of their official responsibilities, private jawboning can sometimes amount to unconstitutional coercion.²¹² However, “[d]etermining when private jawboning crosses the constitutional line . . . raises extremely difficult questions,” which require courts to engage in a highly contextual analysis.²¹³ Justice Alito contended, for instance, that while the coercion in Murthy was “more subtle than the ham-handed censorship found to be unconstitutional in Vullo . . . it was no less coerceive.”²¹⁴ The danger is that if “a coercive campaign is carried out with enough sophistication, it may get by.”²¹⁵ Ilya Somin catalogues the various ways in which government agencies post-Murthy can ensure that their pressure tactics avoid judicial scrutiny.²¹⁶

Despite these legitimate concerns, there may be a role for public, but not private, jawboning to serve as a countervailing force against the power of the tech giants. Helen Norton’s “transparency principle”—namely, “an insistence that the governmental source of a message be transparent to the public”—could serve as a guide.²¹⁷ As Norton observes, the “government’s speech is most valuable and least dangerous to the public when its governmental source is apparent: only then is the government’s speech open to the public’s meaningful credibility and accountability checks.”²¹⁸ In an August 2024 letter to Congress, Mark Zuckerberg was unequivocal that Meta would no longer compromise its content standards in response to government pressure.²¹⁹ Indeed, Meta later announced the adoption of a new content moderation protocol that, among other things, removed restrictions on topics such as immigration and gender identity. If other platforms follow Meta’s lead, the protection (or not) of listener interests would be even more subject to the platforms’ decisions. Provided that the government’s use of public jawboning does not violate Vullo’s standards for coercion, it may prove to be a useful measure to protect users from the overwhelming power of the platforms.

F. Civil Society and the State

Civil society can also play a countervailing role. Truth-finding institutions, such as journalists and political activists, can combat false statements in an iterative process akin to the scientific method.²²⁰ Collaborations between platforms and outside researchers could also lead to better responses for online misinformation.²²¹ More generally, the concept of “knowledge institutions,” as developed by Vicki Jackson, captures the indispensable contribution of public and private entities, including universities, government agencies, libraries, and the press, to the collection and dissemination of knowledge needed for democratic self-governance.²²²

The state can bolster the speech environment by supporting knowledge institutions. Over the last several decades, the federal government has fostered the public sphere by enacting legislation to support newspapers, establishing a system of broadcast licenses, regulating cable, and implementing antitrust laws.²²³ With respect to the threats currently facing private news organizations, Martha Minow argues that “[n]othing in the Constitution forecloses government action to regulate concentrated economic power . . . or strengthen public and private investments in the news functions presupposed by democratic governance.”²²⁴ Minow further suggests that the “First Amendment’s presumption of an existing press may even support an affirmative obligation on the government to undertake reforms and regulations to ensure the viability of a news ecosystem.”²²⁵ Emily Bazelon proposes that federal and state governments could create publicly funded TV or radio, in addition to funding nonprofit journalism.²²⁶ To be sure, the independence of news organizations must be protected by

various mechanisms so that the government cannot control the media it funds and supports.²²⁷

Finally, community participation in regulating online platforms may also improve the speech environment. For example, Reddit is internally governed by volunteer moderators, who establish and enforce rules about what conduct is permitted or prohibited in each subcommunity.²²⁸ These moderators often put in “dozens of hours a week to ensure that content meets community standards and that participants understand why their content was permitted or banned.”²²⁹ Although Reddit is by no means perfect, it may be an example of what Aziz Huq has described as an “island of algorithmic integrity”; that is, a model of a well-functioning social media platform that acts in public-regarding ways and may thereby shift norms and expectations.²³⁰

Conclusion

This Article has offered a normative account of a well-functioning speech environment for speakers and listeners, under which individuals engage in three self-governing activities—informed voting; discussion and deliberation; and meaningful participation—while having their liberty, equality, epistemic, and nondomination interests satisfied. It also argued for digital exceptionalism—the idea that the expressive realm on social media platforms suffers from certain unique deficits that not only undermine the speech environment but that also pose challenges for regulation. The Article then turned to the law of public discourse, focusing on campaign finance regulation and the Moody decision, to find that First Amendment jurisprudence provides few conceptual resources to protect listeners’ equality, epistemic, and nondomination interests. Finally, the Article argued for countervailance, which is the idea that certain mechanisms could lessen the deficits of the online realm such that listener interests are better protected.

To be sure, there continues to be great uncertainty about how digital technologies will evolve over time and what new difficulties they will pose. The rapidly changing landscape of social media technology poses genuine challenges for regulation. While the Moody majority insisted that free speech principles do not change despite the challenges of applying them to evolving technology, the concurring Justices expressed reservations about how evolving algorithmic and AI technology would be covered by the First Amendment. For example, Justice Barrett queried whether there was a difference between an algorithm that did the curation on its own versus an algorithm that was directed by humans.²³¹ Justice Alito noted that the vast majority of the content moderation on the platforms is performed by algorithms, and now that AI algorithms are being used, the platforms may not even know why a particular content moderation decision was reached.²³² He asked: “Are such decisions equally expressive as the decisions made by humans? Should we at least think about this?”²³³ It is fair to say that much work remains to be done when considering how best to protect and promote a well-functioning political speech environment.

98 S. Cal. L. Rev. 1193

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Yasmin Dawood*

* Professor of Law and Political Science, and Canada Research Chair in Democracy, Constitutionalism, and Electoral Law, Faculty of Law, University of Toronto; J.D. Columbia Law School, Ph.D. (Political Science) University of Chicago. I am very grateful to Ashutosh Bhagwat, Daniel Browning, James Grimmelmann, Aziz Huq, Michael Kang, Heidi Kitrosser, Erin Miller, Helen Norton, Eugene Volokh, Abby Wood, and the participants at the Listener Interests Symposium at USC Gould School of Law and the Public Law Colloquium at Northwestern Pritzker School of Law for very helpful comments and conversations. Special thanks to David Niddam-Dent for excellent research assistance and to the editors of the Southern California Law Review for their valuable editorial work.

Listeners’ Choices Online

September 2025September 2025James Grimmelmann*

The most useful way to think about online speech intermediaries is structurally: a platform’s First Amendment treatment should depend on the patterns of speaker-listener connections that it enables. For any given type of platform, the ideal regulatory regime is the one that gives listeners the most effective control over the speech that they receive.

In particular, we should distinguish four functions that intermediaries can play: (1) broadcast, such as radio and television, transmits speech from one speaker to a large and undifferentiated group of listeners, who receive the speech automatically; (2) delivery, such as telephone, email, and broadband Internet, transmits speech from a single speaker to a single listener of the speaker’s choosing; (3) hosting, such as YouTube and Medium, allows an individual speaker to make their speech available to any listeners who seek it out; and (4) selection, such as search engines and feed recommendation algorithms, gives listeners suggestions about speech they might want to receive. Broadcast is relevant mostly as a (poor) historical analogue, but delivery, hosting, and selection are all fundamental on the Internet.

On the one hand, delivery and hosting intermediaries can sometimes be subject to access rules designed to give speakers the ability to use their platforms to reach listeners because doing so gives listeners more choices among speech. On the other hand, access rules are somewhere between counterproductive and nonsensical when applied to selection intermediaries because listeners rely on them precisely to make distinctions among competing speakers. Because speakers can use delivery media to target unwilling listeners, they can be subject to filtering rules designed to allow listeners to avoid unwanted speech. Hosting media, however, mostly do not face the same problem, because listeners are already able to decide which content to request. Selection media, for their part, are what enable listeners to make these filtering decisions about speech for themselves.

Introduction

This is an essay about listeners, the Internet, and the First Amendment. In it, I will argue that the most useful way to think about online speech intermediaries is structurally: a platform’s First Amendment treatment should depend on the patterns of speaker-listener connections that it enables. For any given type of platform, the ideal First Amendment regime is the one that gives listeners the most effective control over the speech that they receive.

This essay does not stand alone. In a previous article, Listeners’ Choices, I outlined a two-part theory of the First Amendment based on recognizing listeners’ choices about what speech to hear.¹ First, any free-speech principle that does not take listeners’ choices seriously is self-defeating. In a world where speakers pervasively compete for listeners’ attention—which is to say, in our world—listeners’ choices provide the only normatively appealing way to resolve the inevitable conflicts among speakers. Second, existing First Amendment doctrine regularly defers to listeners’ choices. Many cases that are seemingly about speakers’ rights snap into focus as soon as we pay attention to which listeners are willing and which listeners are not. Listeners’ choices among speakers are typically content- and viewpoint-based, but a legal rule that defers to those choices can be content-neutral.

The theory I presented in Listeners’ Choices was skeletal. Here, my purpose is to flesh out the listeners’-choice principle so that it does useful doctrinal and policy work in our modern media environment. I will analyze the role of listeners’ choices in four structurally different functions that media intermediaries can carry out:

Intermediaries carrying out a broadcast function, such as radio and television, connect one speaker to a large and undifferentiated group of listeners who receive the speech automatically;
Intermediaries carrying out a delivery function, such as telephone, email, and broadband Internet, transmit speech from a single speaker to a single listener of the speaker’s choosing;
Intermediaries carrying out a hosting function, such as YouTube and Medium, allow an individual speaker to make their speech available to any listeners who seek it out; and
Intermediaries carrying out a selection function, including search engines and feed recommendation algorithms, give listeners suggestions about speech they might want to receive.

Notice that I refer to distinct “functions,” because media and intermediaries are not monolithic. There is no set of First Amendment rules for “the Internet,” nor can there be. The Internet is too vast and variegated for that to work. Distinguishing among broadcast, delivery, hosting, and selection helps us see that these functions can be disaggregated. On the Internet, we are accustomed to thinking of hosting and selection as intertwined; the term “content moderation” encompasses them both. But they do not necessarily need to be: YouTube the hosting platform and YouTube the search engine are different and could be subjected to different legal rules.

The original sin of broadcast was that it inextricably combined selection and delivery into a single take-it-or-leave-it package, in a way that was uniquely disempowering to listeners. Bandwidth limitations mean that broadcast media present listeners with a limited array of speakers to choose among. And the fact that listeners receive broadcast speech as a group, rather than individually, means that it is hard to protect unwilling listeners from that speech without blocking willing listeners’ ability to receive it. The result is a body of doctrine and theory that purports to act in listeners’ interest but is primarily concerned with allocating scarce bandwidth among competing speakers.

In contrast, listeners can be far more empowered on the Internet than they were offline. Delivery, hosting, and selection are all more listener-friendly than broadcast. The individually targeted nature of delivery media means that media intermediaries can block unwanted communications to unwilling listeners without offending core free-speech values. The pinched kinds of choices that broadcast media needed to make among competing speakers were a poor proxy for the much broader kinds of choices that listeners can make for themselves on hosting media. And the recommendations that selection media provide to help listeners choose among competing speakers are fundamentally oriented towards facilitating listeners’ autonomy, not speakers’.

Turning to the specifics of how these different kinds of media should be regulated, there are two structurally different kinds of legal rules that can apply to them:

Access rules ensure that speakers are able to use a medium, even when an intermediary would prefer to exclude them.²
Filtering rules ensure that listeners are able to avoid unwanted speech, even when speakers would prefer to subject them to it. Sometimes they empower an intermediary to reject that speech on behalf of listeners (i.e., they are the opposite of access rules), but sometimes they require speakers and intermediaries to structure their communications in a way that enables listeners themselves to reject the speech.

From a speaker’s point of view, access rules look like they promote free speech and filtering rules look like they inhibit it. But from a listener’s point of view, both types of rules can promote the values of the First Amendment.

For access rules, the key distinction is between rival and non-rival media. Delivery and hosting can be non-rival on the Internet, where bandwidth is immense and can be expanded as needed. Speakers who use delivery and hosting media mostly do not interfere with each other, and so an intermediary can treat most speakers identically. But selection is fundamentally rival: listeners rely on these intermediaries to help them distinguish among speakers, and so selection intermediaries must favor some speakers and disfavor others. As a result, delivery and hosting intermediaries can often be subjected to access rules requiring even-handed treatment of all interested speakers, but the First Amendment mostly forbids imposing access rules on selection intermediaries.

For filtering rules, the key distinction is that delivery situates the relevant choices among speaker-listener pairings upstream (closer to speakers) while hosting situates those choices downstream (closer to listeners). When listeners can make their own choices among speech (as on hosting intermediaries), filtering rules—whether imposed by intermediaries or by the legal system—have the effect of thwarting those choices. However, when speakers make those choices in the first instance (as on delivery intermediaries), sometimes filtering rules are necessary to empower listeners to make choices for themselves. Selection media, for their part, provide listeners the information they need to choose which content on hosting media to request, and which content on delivery media to receive.

In part, this essay is a love letter to selection media, written on behalf of listeners. Selection media play an utterly necessary role in an environment of extreme informational abundance, and they can be more responsive to listeners’ informational choices and needs than any other form of media.³ Access rules are often nonsensical when applied to them, and filtering rules must be applied with care, lest they trample on the filtering work that selection media are already doing.⁴

But the fact that selection media are often listener-friendly does not mean that they always are. I have argued previously that search engines can be regulated when they behave disloyally or dishonestly towards their users,⁵ and the same goes for selection media. More generally, I will argue here that structural regulation of selection media is often appropriate. For example, an intermediary could be forced to disaggregate its hosting and selection functions; the former can—and sometimes should—be regulated in ways that the latter cannot. Indeed, an intermediary might need to open its delivery or delivery platform up to competing selection intermediaries (so-called “middleware”) to give listeners broader and freer choice over the speech they receive.

Finally, a note on scope. This is an essay about intermediaries, not an essay about all forms of media. I am focusing on intermediaries’ roles in carrying third-party speech from speakers to listeners, not on their own first-party speech that they want to share with listeners. Different structural and First Amendment considerations apply to first-party speech. I will argue in places that solicitude for intermediaries’ speech interests should not prevent us from regulating them in ways that promote listeners’ speech interests. But this is not primarily an essay about intermediaries’ speech itself.⁶

This essay has four substantive Parts. Part I provides a short review of the argument from Listeners’ Choices and can be skipped if you are familiar with it. Part II describes the structural differences among broadcast, delivery, hosting, and selection media, and explains how they relate to each other. Part III considers how access rules play out in these four types of media, and Part IV does the same for filtering rules. As we will see, the appropriate legal treatment of these different kinds of intermediaries and rules falls out naturally. First Amendment doctrine becomes radically simpler when we carve up media at their joints.

I. Listeners’ Choices: A Review

The starting point of Listeners’ Choices is that we can think about speech as a matching problem: in an environment where billions of people speak and billions of people listen, who speaks to whom? This way of thinking about speech is mostly content-neutral: it focuses on the network structure of connections between speakers and listeners, rather than on the content of the speech they exchange over those connections. I called an actual arrangement of speakers and listeners a “matching” to emphasize its mutuality and the fact that it is a collective property of speakers and listeners overall.

The possible structures of speaker-listener matching are shaped by two things: choices and scarcities. Regarding the former, speakers make choices about what to say and how; regarding the latter, listeners make choices about what to listen to and how. Not all their choices can be simultaneously honored, but the heart of this way of thinking about free speech is that speakers and listeners make choices among each other, and that these choices are in large part constitutive of the values that free expression serves. They are subjective, individual, and profoundly content- and viewpoint-based. Some conflicts among speakers’ and listeners’ choices arise simply from their diverging values and goals; I called these conflicts “internal” limits on possible speaker-listener matchings.

As for scarcities, another class of limits on speaker-listener matchings are what I called “structural” limits: some combinations of who speaks to whom are physically or practically impossible. In particular, three types of scarcity shape the patterns of speech everywhere and always: bandwidth, attention, and ignorance. Bandwidth limits, such as the limited range of the human voice or the limited number of very high frequency (“VHF”) television channels, restrict the ability of speakers’ messages even to reach listeners. Attention limits are hard-wired into human anatomy and psychology. Although speech consists of information, which is potentially infinitely replicable, each person can only pay attention to one or a few speakers at a time. Finally, ignorance about the content of speech can lead people to make choices about what to listen to—choices that would not have made if they were fully aware of what the speech would be.

The upshot of having these scarcities is that listeners’ choices among competing speakers provide a compelling way to decide among competing speech claims. Listeners’ choices are valuable in themselves because listening is an indispensable part of any communication, and listeners’ choices should be elevated over speakers’ choices because of the scarcity of attention; the capacity to listen is limited in a way that the capacity to speak is not. In order to tune into a preferred speaker, a listener must be able to tune out other speakers, and a speech environment in which listeners cannot do so is one in which effective speech is impossible. From this general point, a few specific observations follow.

First, in one-to-many cases of conflicts between willing and unwilling listeners, willing listeners generally prevail. The “Fuck the Draft” jacket in Cohen v. California⁷ and the drive-in movie screen in Erznoznik v. Jacksonville⁸ were seen by both willing and unwilling viewers. To censor these forms of expression at the insistence of the unwilling ones would deprive the willing ones of speech they were willing (and in Erznoznik, affirmatively choosing) to see. The unwilling ones are expected to avert their eyes or change the channel. This looks like a preference for speakers’ right of expression as against unwilling listeners, but really it is a preference for willing listeners over unwilling ones.

Second, in true one-to-one cases where a speaker addresses a single unwilling listener, the analysis is far less speaker-friendly. The Supreme Court has affirmed homeowners’ rights to literally and figuratively shut their doors to unwanted solicitors⁹ and mail.¹⁰ A general ordinance prohibiting Jehovah’s Witnesses from going door-to-door¹¹ or prohibiting the mailing of communist literature would be unconstitutional,¹² because of the presence of potentially willing listeners among the audience. That concern drops away when the speaker can stop attempting to communicate with individual listeners who specifically object while still reaching those who do not. Listeners can choose not to pay attention, and speakers who attempt to overcome listeners’ defenses (for example, with amplified sound trucks) can be barred from doing so.¹³ The caselaw here is rich and context-sensitive; a rule that listeners always win would be as wrong as a rule that speakers always win. Instead, the cases grapple with the interests of speakers, willing listeners, unwilling listeners, and—importantly—undecided listeners, who cannot decide whether they want to hear what the speaker has to say unless the speaker at least has an initial chance to ask.¹⁴

Third, the general problem of sorting listeners into the willing and the unwilling involves what I call “separation costs”: the effort that willing listeners must take to hear, or that unwilling listeners must take to avoid hearing, or that speakers must take to distinguish between the two, or some combination of the above. The scale and distribution of separation costs can vary greatly based on the technological environment. I argue that the legal system, in a very rough way, seeks out the least-cost-avoider of speech conflicts: when a party can take a simple and inexpensive action to resolve the conflict, the law often expects them to do so.

II. Four Media Functions

This Part reviews the structural differences among the four media functions: broadcast, delivery, hosting, and selection. Along with some examples of each type, I discuss the ways in which each of them is one-to-one or one-to-many.¹⁵ I defer discussion of scarcity and bandwidth constraints to the next Part, as these issues bear heavily on access rules.

A. Broadcast

Start with the wired and wireless mass media that dominated most of the twentieth century: radio, broadcast television, satellite television, and cable. These mass media are characterized by their extensive reach: they enabled a single speaker to reach a large potential audience of listeners. They are, in Eugene Volokh’s taxonomy, one-to-many media.

To be clear, broadcast media collectively enable numerous speakers to reach large audiences; there are many TV stations, and each station broadcasts many different programs. Instead, when I say that broadcast is one-to-many, I mean that each individual speaker reaches a large and undifferentiated audience. Broadcast aggregates numerous such one-to-many communications, dividing them up by time (for example, WNBC-TV broadcasts the news at 7:00 and Access Hollywood at 7:30) and by intermediary (WNBC-TV and WABC-TV both broadcast their respective news programs at 7:00). The structural point is that WNBC-TV can only broadcast a single program at a time—such as Access Hollywood at 7:30—and when it does, it enables a one-to-many communication from Access Hollywood to its viewers.

B. Delivery

Next, consider delivery media like mail, telegraph, telephone, email, direct messaging, and Internet service. They all transmit speech from an individual speaker to an individual listener selected by the speaker, making them one-to-one media.¹⁶ More precisely, they are one-to-one with respect to individual communications from speaker to listener. In aggregate, they are many-to-many. The postal service delivers millions of letters, but each letter goes from a single sender to a single recipient. Delivery is therefore a kind of disaggregated broadcast: instead of sending joint communication to all listeners at once, individual communications are sent to individual listeners at the speaker’s request.

Most delivery media use some form of medium-specific addresses for a sender to specify their chosen recipient. A letter goes to a specific postal address; a telephone call to a specific telephone number; an email to a specific email address; an Internet Protocol (“IP”) datagram to a specific IP address; and so on. A speaker can choose to send the same message to many listeners by sending many individual communications to different addresses. Conversely, by having an address, a listener makes themselves reachable by speakers and then can receive a mostly undifferentiated stream of communications from any speaker who wants to reach them.

Some delivery media—such as telephone and direct messaging—are interactive, but it still makes sense to talk of “the speaker” and “the listener.” First, at the beginning of a conversation, one user is trying to establish a connection with another: the phone rings, or an email appears in the inbox. The user trying to establish the connection is the one who chose to initiate the communication, chose when to do it, and most importantly, chose with whom to establish it. They are a speaker, and if the other user agrees, they receive the message and become a listener. Second, what we think of as “interactive” media are really bidirectional media. A telephone connection is “full duplex”: it requires two speech channels, one in each direction. The same is true for a Zoom call, an email conversation, or anything else that travels on the Internet. These interactive exchanges are made up of individual IP datagrams, each traveling from a sender to a recipient identified by IP address. Third, all delivery media are interactive on a long-enough time scale. Pen pals exchange letters, trading off the roles of speaker and listener. Each letter is still a discrete one-to-one communication carried by the postal service; mail is still a delivery medium.

C. Hosting

A third category of Internet media consists of hosting platforms. Third-party speakers send content to these intermediaries, which make the content available to listeners on request. For example, an artist uploads illustrations from her portfolio of work to a Squarespace site and individual fans visit the site to view the illustrations.

Other examples of hosting intermediaries include (1) bulk storage like Google Drive and Amazon S3; (2) content-delivery networks (“CDNs”) like Akamai and Cloudflare; (3) hosting functions of social-media platforms like YouTube and X; and (4) web-based self-publishing features of platforms like Medium and Substack. Structurally, online marketplaces are also hosting services as long as they (a) sell digital content instead of physical goods or services, and (b) feature speaker-submitted third-party content. Examples include App Stores by Apple and Google, e-book stores by Barnes & Noble and Amazon, video game stores by Steam and Epic, and even Spotify as a distributor of podcasts and music.

Hosting is the mirror image of delivery. Both are one-to-one media; each individual communication goes from a single speaker to a single listener. The difference is that in delivery media, the speaker selects which listeners to speak to; in hosting media, the listener selects which speakers to listen to. Although hosting is usually thought of as a service offered by platforms to speakers, the listener’s request plays a crucial role in the process. Hosting is also a kind of disaggregated broadcast: instead of sending a joint communication to all listeners at once, individual communications are sent to individual listeners, this time at the listener’s request.

Hosting and delivery functions are often used in conjunction. A website host, for example, responds to a user’s request for a particular URL by sending a response with the contents of the page at that address. The request and the response are both made using delivery media—the Internet service providers (“ISPs”) along the delivery path between the host and the user. (So, for that matter, is the transmission from speaker to the website host with the content the speaker wants to make available, and so is the website host’s acknowledgement that it has received the content.) But the host’s own activities—its responses to listeners’ requests for content—have the listener-selected nature of hosting, not the speaker-selected nature of delivery.

Some intermediaries offer both hosting and delivery. Substack is a good example: each post is both made available on Substack’s website and also mailed out to newsletter subscribers. Substack is a hosting service for listeners who read the post on the website, but it is a delivery service for listeners who read the post in their email inbox. Sometimes the distinction is irrelevant, but sometimes it matters. Substack allows newsletter authors to import a mailing list of subscribers, so it is not safe to assume that everyone who receives a Substack delivery has consented to it. For a user who objects to newsletter spam, Substack is a delivery intermediary, not a hosting intermediary.

Like delivery, hosting can be aggregated into a one-to-many medium. Indeed, this is typically the default on the Internet. Unless a host affirmatively restricts which listeners have access to a speaker’s content—for example, with a list of subscribers to a paywalled publication—anyone with an Internet connection can access it, and it is far easier to leave access unrestricted than to impose selective restrictions. Thus, from a speaker’s perspective, hosting can function like broadcast in that it allows a speaker to reach an indeterminately large audience with a single act of publication.

D. Selection

Finally, consider the selection function of some media, which consists of recommending some content for users. Selection media include general search engines that index third-party sites, such as Google, Bing, Kagi, and DuckDuckGo, as well as site-specific search engines that index the content on a specific platform such as the search bars built into YouTube, TikTok, and X. They also include recommendation engines that may provide personalized results not explicitly tied to a user query, such as the feed algorithms on Facebook and TikTok or the watch-next suggestions on YouTube. The key feature of a selection platform is that it tells users about content, which they can then consume in full if they want.

Selection media are not strictly one-to-one or one-to-many in the same way that broadcast, delivery, and hosting are; they do not by themselves carry content from speakers to listeners. Instead, it is helpful to think of selection media as being many-to-one because they help individual listeners choose speech from a large variety of speakers. They turn an overwhelming volume of available content into a much smaller number of selections or recommendations that a listener can meaningfully experience, and they do so in ways that can be individuated for each specific listener.

Selection media are hardly new, but two features of the Internet make selection media particularly important online. First, the sheer scale of the Internet makes selection an absolute necessity. There is far more content on the Internet, or even on social-media platforms and not-especially large websites, than any one user can plausibly engage with. The shift from bandwidth to attention as the most salient bottleneck makes selection a crucial site of contestation.

Second, the Internet has often enabled selection to be disaggregated from delivery and hosting. The selection function of a television channel is obvious: because it can transmit so little compared with what it might, the choice of what to transmit does most of the work of selection. However, YouTube is both a content host and a content recommender: it can host a video without ever recommending that video to anyone. It is the difference between an album (selection bundled with hosting) and a playlist (selection by itself). This point cuts both ways—distinguishing the two functions takes some First Amendment pressure off of hosting, but piles more onto selection.

III. Access

A. Scarcity

One of the fundamental structural constraints on choices about speech is scarcity: limits on the number of communications that a given medium, or an intermediary using that medium, can carry. Scarcity forces choices among speakers to be made upstream by the intermediary or by regulators allocating the medium among speakers and intermediaries. In contrast, non-scarce media allow choices among speakers to be made downstream by listeners themselves. Unsurprisingly, there is a long history of scarcity arguments in telecommunications policy.

The standard story, as reflected in caselaw, points to the scarcity of broadcast spectrum as a justification for regulation. First, the available spectrum needs to be allocated to different users to prevent chaos and interference. Then, once it has been handed out, these users can be required to carry a reasonable diversity of speakers so that the intermediaries do not have undue power over speech. The usual citation for this form of argument is Red Lion Broadcasting Co. v. FCC, which used scarcity arguments to uphold the FCC’s fairness doctrine.¹⁷

In contrast, other media are not thought of as scarce in the same way. There is room for many simultaneous speakers, which means there is no need for regulatory intervention. Intermediaries themselves can choose which speakers to carry, and there is less risk of having a handful of powerful intermediaries entirely control the speech environment. The usual citation for this form of argument is Miami Herald Publishing Co. v. Tornillo, which declined to extend Red Lion to newspapers.¹⁸ Instead, the Supreme Court upheld newspapers’ First Amendment right to pick and choose what content they print.

Thus, goes the story, there is a spectrum from scarce media, like broadcast, to non-scarce media, like newspapers. The scarcer the medium, the more regulable it is. Other media fall somewhere in between. Cable television, for example, can carry a limited number of channels, but typically more than broadcast can. Thus, the scarcity rationale for regulating cable exists, but is weaker than for regulating broadcast. This tracks with the regulatory regime: cable operators are required to set aside some of their channels for local broadcasters and public-access channels, but cable channels are not regulated for content. It also tracks with judicial treatment: the Supreme Court held 5-4 that this regulatory regime was constitutional in Turner Broadcasting System, Inc. v. FCC, almost exactly halfway in between the 9-0 decisions in Red Lion and Miami Herald.¹⁹

There are two problems with this story. The first is that it does not obviously explain why there are some media—such as telephone—that are even more regulated than broadcast. The telephone network has much higher capacity than broadcast does (it can carry millions of simultaneous conversations), but it is subject to a strict common-carriage regime. A naive scarcity argument would suggest the exact opposite: that because telephone capacity is effectively unlimited, there is no need for regulation.

The second problem is that even in cases that rely on scarcity arguments, those arguments do not always cut in the direction one would expect. In Miami Herald, it was the newspaper arguing that its editorial space was scarce—in the Supreme Court’s words, that it could not engage in “infinite expansion of its column space.”²⁰ The Supreme Court accepted this argument as a rationale to uphold the newspaper’s First Amendment right to reject unwanted content—the exact opposite of what a naive scarcity argument would suggest.

The way out of these paradoxes is to recognize that there are two dimensions to scarcity. On one hand, there is what I call bandwidth scarcity: the limits on any one intermediary’s ability to carry the speech of multiple speakers. On the other hand, there is what I call entry scarcity: the limits on the number of intermediaries who can operate simultaneously. Entry scarcity cuts in favor of regulation: an intermediary is in a position to control who gets to speak, unconstrained by market forces and the threat of competition. But bandwidth scarcity cuts against regulation: it means that the intermediary necessarily exercises editorial judgment over which speakers have access, and it rules out simple common-carriage regimes that treat all

speakers equally. It is the interplay between these two distinct forms of scarcity that determines whether a medium is regulable.

In particular, mapping the two dimensions of scarcity in a two-by-two diagram reveals the underlying pattern of scarcity arguments:

In the top-right quadrant are print media, which are moderately bandwidth-scarce (it is possible to add pages to a newspaper or book, but at some expense and only by modifying its physical layout) and mostly not entry-scarce (physical printing is a commodity business). Thus, both scarcity considerations cut against regulation: there is no physical or economic need to allocate a limited ability to print among competing speakers, and imposing access rules comes at a real cost to a publisher’s ability to print the content it wants. Indeed, as Miami Herald illustrates, the Supreme Court’s solicitude for intermediaries’ speech is at its zenith here.
In the bottom-left quadrant are the classic common carriers. They are entry-scarce (the costs of running a second telephone network to every home were prohibitive), but they are not particularly bandwidth-scarce (carrying one more conversation or letter is a trivial burden for the phone network or the mails). Indeed, these are typically the most regulated communications intermediaries.
In the top-left quadrant are broadcast media. They are both entry-scarce (only thirteen VHF channels were allocated, and the practical number that could operate in any given area was invariably smaller) and bandwidth-scarce (each VHF television channel had 6 megahertz to carry a 525-line video signal at 30 frames per second). They are off-axis: their entry scarcity cuts in favor of regulation, but their bandwidth scarcity cuts against it. This is why they have historically been required to carry some diversity of content, but never with full common-carriage rules. They are more regulable than print, but less regulable than common-carriage networks.
In the bottom-right quadrant are media that are neither entry-scarce nor bandwidth-scarce. This is also an off-axis combination, but it is the opposite of the situation with broadcast, where access rules were both necessary (to give disfavored speakers access) and costly (because doing so comes at the cost of other speech the broadcasters could have carried). Here, access rules do not have a speech cost: giving additional speakers the ability to use an intermediary does not require the intermediary to drop other speakers to make room. However, it is also not clear whether these rules are necessary in the first place, because ordinary market forces would likely suffice to provide all speakers with the ability to speak.

As we will see, this two-dimensional framing of scarcity is quite helpful in situating the speech claims for and against access to the four types of intermediaries discussed in this essay: broadcast, delivery, hosting, and selection. Entry scarcity provides the justification for access rules to ensure listeners the widest possible range of choices among speakers without artificial limits imposed by incumbent intermediaries. However, bandwidth scarcity, when it exists, bespeaks caution: access rules come at their own sharp cost, limiting intermediaries’ ability to select the speech they think their listeners will most appreciate the ability to choose among. Thus, as we will see, hosting and delivery media (which are not bandwidth-scarce) may appropriately be the subject of common-carriage regulation where there are real issues of entry scarcity. However, selection media (which are intrinsically bandwidth-scarce) mostly should not be the subject of regulation regardless of entry scarcity.

I should note that there are competing definitions of “scarcity,” and my intention is to be agnostic among them. At different times and places, scarcity has been used to describe physical constraints (such as the laws of physics that govern electromagnetic interference), economic constraints (such as the cost of building out the infrastructure to run a telephone network), and regulatory constraints (such as limits on the number of cable franchises that will be awarded in a geographic area). Some commentators use scarcity narrowly to include only physical constraints; others use it broadly to include economic and regulatory constraints. These varying uses often reflect different beliefs about what kinds of regulations are appropriate for scarce media.²¹ My argument here is modular with respect to the definition of scarcity in use. If you, according to your preferred definition, believe that a medium is entry-scarce but not bandwidth-scarce, I hope you will agree with my arguments for why common carriage might be an appropriate regulatory regime.

With these observations about scarcity in mind, we can turn to how access rules play out for different types of media. The focus throughout will be on how different rules increase or limit the choices available to listeners.

B. Broadcast

Twentieth-century broadcast media had highly limited capacity and were both bandwidth- and entry-scarce. These limits were primarily physical and technological and secondarily economic and regulatory. The available techniques for modulating an audio or audiovisual signal into one that could be transmitted through the atmosphere (radio, television, and satellite) or through wires (cable) allowed only a small number of such signals to be transmitted simultaneously in any geographic region. This number expanded over time with developments in telecommunications engineering: from AM to FM radio broadcasting; from VHF (very high frequency) to UHF (ultra high frequency) television broadcasting; from coaxial to fiber-optic cables; and so on. The basic structure remained the same: a fixed, finite menu of channels transmitted simultaneously to all potential listeners.

In such a setting, speaker-listener matching arises from a two-stage process. First, a few speakers are chosen to have access to the available channels, and then each listener chooses from the speech that speakers make available on those channels. In the United States, the first-stage choice among speakers was (and is) made by the operator of the physical infrastructure—the transmitting equipment or physical cable network—subject to some regulatory limits. The second-stage choice was (and is) made by individuals: members of the public with appropriate receiving apparatus (restricted in some cases, such as cable and satellite, who have subscribed to the operator’s service). The phrase most commonly used to describe this second-stage choice—changing the “channel”—reflects the way in which the technological constraints of twentieth-century broadcast funneled speech into a small and finite number of options.

Consider a speaker who is denied access to a channel, or who receives less access than they want, or who is limited in how they are allowed to use it, or who is charged more than they want for their access. In each case, they are obviously aggrieved. It is harder, however, from a purely speaker-centric position to explain why they have been wronged. The challenge—and this is a recurring challenge for speaker-centric analyses—is the problem of symmetry among speakers. It is one thing to say that the lucky speaker who receives access is better off than the unlucky speaker who does not, but it is quite another to make them change places. Doing so simply swaps the problem of the network operator picking winners and losers with the problem of the government picking winners and losers. To give A access and deny it to B amounts to preferring A’s speech to B’s, and on most theories of free speech, this preference is an awkward one for the government to engage in.

Instead, rationales for broadcast content regulation tend to rely on the needs of listeners, rather than speakers. As many scholars have noted,²² this is the upshot of Alexander Meiklejohn’s famous phrase, “What is essential is not that everyone shall speak, but that everything worth saying shall be said.”²³ The basic idea of this regulatory paradigm is to give listeners either high-quality content, a wide range of options of content, or both—on the assumption that speakers and broadcasters, left to their own devices, will provide neither. As the Supreme Court put it in Red Lion’s famous phrasing, “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”²⁴

Ringing rhetoric aside, it is hard to find actual listeners in the resulting regulatory regime. In an environment of severe bandwidth constraints, it is impossible to solicit and honor all individual listeners’ choices; there are never enough channels to give each member of the audience what they personally want. Instead, they make their desires known only collectively and statistically by tuning in to channels and by paying for those channels or for the things advertised on them. Thus, as the long-running theme in media criticism goes, broadcast was a “vast wasteland” of boring, mediocre, and fundamentally majoritarian content.²⁵ The larger the mass audience, the lower the common denominator.²⁶

Consider some of the most notable examples of broadcast access regulations: the Mayflower doctrine²⁷ and its successor the fairness doctrine,²⁸ the right of reply,²⁹ and the equal-time rule.³⁰ None of these were concerned with any specific listeners’ choices among speakers. Instead, they were all attempts to provide for listeners’ interests generically—by anticipating what groups of hypothetical listeners might want or need.

The few occasions on which broadcast media regulations have attempted to take account of actual listeners’ choices when setting access rules only show how hard it is to do so. The most striking example is format regulation. For years, the FCC interpreted the Communications Act of 1934’s requirement that broadcast licensees serve the “public convenience, interest, or necessity” to mean that it should consider stations’ formats in its licensing procedures.³¹ It would deny approval for new pop-music radio licenses, for example, if it felt that an existing market was adequately served by the radio stations already licensed to operate in the area.³² Indeed, a licensee seeking permission to change formats was required to petition the FCC for approval.³³

Format regulation was in theory a listener-based system, but the FCC seemed genuinely flummoxed when actual listeners showed up in licensing procedures demanding a voice in the first-stage choices of who got access to the airwaves and on what terms. In Office of Communication of United Church of Christ v. FCC, a group of civil-rights activists attempted to intervene in a license-renewal proceeding before the FCC, alleging that WLBT in Jackson, Mississippi had aired only pro-segregation viewpoints.³⁴ The FCC denied their request, arguing that these “representatives of the listening public”³⁵ could “assert no greater interest or claim of injury than members of the general public.”³⁶ The D.C. Circuit reversed and remanded for an evidentiary hearing, as listeners were “most directly concerned with and intimately affected by the performance of a licensee.”³⁷

There followed a string of cases in which the FCC and the D.C. Circuit struggled with how to actually take listeners’ views into account.³⁸ In Citizens Committee to Keep Progressive Rock v. FCC, for example, WGLN in Sylvania, Ohio, switched to an all-prog-rock format in late 1971, and then received FCC approval in 1972 to switch to “generally middle of the road music which may include some contemporary, folk and jazz.”³⁹ The Citizens Committee to Keep Progressive Rock petitioned the FCC to object. The D.C. Circuit ordered a hearing on whether the Toledo metropolitan area was adequately served by prog-rock stations as compared with top-forty stations,⁴⁰ and discussed such details as whether a “golden oldies” format was sufficiently distinct from “middle of the road.”⁴¹ “In essence, one man’s Bread is the next man’s Bach, Bacharach, or Buck Owens and the Buckeroos, and where ‘technically and economically feasible,’ it is in the public’s best interest to have all segments represented,” the opinion sagely intoned.⁴²

My point here is not that the FCC’s enterprise of supervising formats or of requiring balanced public-interest programming in the name of listener interests was ill-considered. Instead, I want to emphasize that these interventions were more about listeners’ interests than about listeners’ choices. Some of them were about giving listeners information that it is considered important for them to have, and some of them were about moderately diversifying the menu of speech from which listeners could choose. But in an environment of severely limited bandwidth serving mass audiences, there was almost nothing more that could be done.

I make this point here because there are two misconceptions about listeners that are extraordinarily prevalent in the literature on access to the media. Both of them are direct consequences of inappropriately extending reasonable assumptions about the broadcast environment to other domains where they are much worse fits.

The first mistaken assumption is that speakers seeking access to media are necessarily good proxies for listeners. In 1967, Jerome Barron wrote, “It is to be hoped that an awareness of the listener’s interest in broadcasting will lead to an equivalent concern for the reader’s stake in the press, and that first amendment recognition will be given to a right of access for the protection of the reader, the listener, and the viewer.”⁴³ In broadcast media, a strong right of access for diverse speakers may be a way to promote listeners’ practical ability to choose speech.

In other media, which are not characterized by the same combination of broad distribution and narrow bandwidth, there is much less reason to think of speakers as proxies for listeners. To give a simple example, many of the speakers most loudly demanding—and sometimes suing for—a right of access to Internet platforms are unrepentant spammers.⁴⁴ The access they seek is the access of pre-FCC unlicensed broadcast, as in the right to overwhelm media and listeners with high-volume speech that drowns out alternatives and reduces listeners’ practical ability to choose among speakers.

The second misconception about listeners’ choices that arises from seeing all media as broadcast media is the belief that nothing else can be done. Both the justifications for and many of the criticisms of regulations like the fairness doctrine and format review arise from thinking about speech environments in which listeners are fundamentally passive. The only controls they have—or can have—are the channel dial and the on-off switch. It seems to follow that the only useful regulatory interventions must happen upstream and that individual listeners themselves can have little involvement in the matching process. The entire model of media criticism that conceptualizes individuals as television viewers—numb, motionless, and mindless zombies or couch potatoes tuned in to the idiot box—is blind to the ways in which they engage with media that give listeners more agency and more choices.⁴⁵ We will see many examples soon. For now, remember that the assumption of listener passivity is just that—an assumption.

C. Delivery

Delivery media are mostly not bandwidth-scarce, especially on the Internet. Any given delivery intermediary’s platform tends to face fewer capacity constraints than broadcast media did. Partly this is structural: delivery media solve a smaller problem because they only try to route a communication to one recipient, rather than many. Partly it is due to physical differences: the phone network could handle more simultaneous connections by running more wires in trunk lines, whereas cable could not increase the number of channels without reengineering every subscriber’s wiring and equipment. Partly it is due to the telecommunications engineering triumphs of the telephone system and the Internet, which have scaled up over many orders of magnitude in their lifetimes. And partly it is due to recognizing the limits of the possible: telegraph companies did not attempt to offer video service.

Whatever the reason, any given communication takes up a much smaller fraction of a delivery provider’s capacity than a corresponding communication would take up of a broadcaster’s capacity. Comcast as a cable operator can offer its subscribers a few hundred channels, while Comcast as an ISP can offer its subscribers delivery to and from millions of sites. The result is that Comcast’s Internet-service subscribers interfere with each other far less than the cable channels vying for transmission do. One more subscriber is trivial from Comcast’s perspective, and it has every economic incentive to sign up as many as it can. However, each cable carriage agreement is individually negotiated, and Comcast is ready to say “no” if the terms are not good enough because Comcast has to devote some of a sharply limited resource to each channel it offers.

Entry scarcity varies among delivery media. Some, such as email, are almost completely open to entrants: anyone can set up their own SMTP server and start exchanging emails. Others, such as telephone and Internet service, have limited competition among intermediaries who can serve any particular customer or region because the need to place physical infrastructure, such as fiber-optic cables or cell-phone towers, in particular locations creates economic and regulatory barriers to entry. The postal service is an extreme example: it has a statutory monopoly on the carriage of letters.⁴⁶

There is a long and robust tradition of speakers’ rights to access delivery media. Older delivery media, in particular, have frequently been subjected to common-carriage rules that require them to accept communications from all senders and for all receivers, and forbid them from discriminating on the basis of the contents of those messages.⁴⁷ The postal service “shall not . . . make any undue or unreasonable discrimination among users of the mails . . . .”⁴⁸ This statutory obligation is almost certainly a First Amendment rule.⁴⁹ Similarly, the Communications Act prohibits “any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services” by telecommunications common carriers including telephone companies.⁵⁰ This is the modern continuation of a long tradition: laws in the nineteenth century required telegraph companies to “operate their respective telegraph lines as to afford equal facilities to all, without discrimination in favor of or against any person, company, or corporation whatever.”⁵¹ Indeed, the postal service,⁵² telephone network,⁵³ and broadband Internet service⁵⁴ are all the subjects of universal-service policies that affirmatively attempt to provide access to all American residents.

On the other hand, it is an open doctrinal question whether government can require modern delivery providers—specifically email and broadband Internet—to provide uncensored access to speakers and listeners. The best and most prominent example is the FCC’s network neutrality rules that attempted to require broadband ISPs to carry traffic to and from all edge providers (that is, speakers) on a nondiscriminatory basis.⁵⁵ The D.C. Circuit upheld one version of the FCC’s network neutrality rules against a First Amendment challenge in 2016.⁵⁶ Dissenting from denial of rehearing en banc, Judge Kavanaugh argued that ISPs exercise editorial discretion protected by the First Amendment.⁵⁷ There are also dicta in the Moody v. NetChoice majority opinion describing First Amendment protections for social-media companies’ “choices about the views they will, and will not, convey” that would seem to apply equally well to ISPs.⁵⁸

Indeed, § 230 affirmatively shields Internet delivery media from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”⁵⁹ The precise contours of what constitutes “good faith” are unsettled,⁶⁰ as is the scope of the “otherwise objectionable” catchall,⁶¹ but the general result is to preempt any state attempts (by statute or common law) to impose access mandates.⁶²

It is also notable that many delivery media are governed by strict privacy rules that limit carriers’ ability even to determine the contents of a message. The USPS is legally prohibited from opening first-class mail without a search warrant.⁶³ Telephone carriers are restricted from listening to conversations by the Wiretap Act,⁶⁴ as are ISPs and email providers.⁶⁵ Even beyond legal limits, many delivery providers now use encryption systems that technologically prevent the provider from determining message contents; for example, Apple Messages and Signal are end-to-end encrypted so that only the designated recipient (and not any intermediary, including Apple or Signal) can decrypt a message. A fortiori, carriers who cannot even tell what a message says cannot discriminate on the basis of its contents.

It is easy to justify common-carriage access rules for delivery media—old and new—in light of their structural characteristics. From the intermediary’s point of view, the weak bandwidth constraints mean that carrying any particular communication is not a substantial technical burden. In the aggregate, of course, communications add up, but that is primarily an economic problem—one to be addressed with appropriate pricing and funding.⁶⁶ Where pricing is not available or insufficient, capacity limits on the volume of communications to or from a user are largely content-neutral ways of allocating bandwidth.⁶⁷

Carrying a communication is not a speech problem, except to the extent that the intermediary wants to make an expressive statement by carrying or refusing to carry particular messages. Historically, though, that argument has carried very little weight for traditional delivery media. This attitude is easy to justify by seeing delivery media from the perspective of speakers and listeners. Willing speakers and willing listeners have essentially the same interest in access to delivery media: the goal of forming the core free speech interest by communicating with each other.⁶⁸ If you want to send me an email and I want to receive the email, we are both thwarted if your email provider deletes your email.

An intermediary’s speech claims are weaker when they go up against those of matched speaker-listener pairs. The intermediary may not want to help the speaker and listener connect, but this is fundamentally an objection to their speech, not a claim about its own speech. It might prefer to deliver messages from other speakers it likes better; but when it does so, it forces listeners to receive messages from speakers they prefer less. As I argued in Listeners’ Choices, it is a core free-speech violation to make a listener listen to a speaker whose speech they do not want rather than listen to a speaker whose speech they want.⁶⁹ So while a delivery intermediary’s denial of access to a speaker or listener is not by itself a First-Amendment violation, the First Amendment leaves ample room for government to require delivery intermediaries to provide access.

In general, both speakers and listeners have standing to challenge denials of access to a delivery platform. In Murthy v. Missouri, the Supreme Court held that listeners do not have standing to challenge restrictions on speakers unless “the listener has a concrete, specific connection to the speaker.”⁷⁰ In the case of a speaker attempting to send a message to a specific listener (as opposed to the hosting platforms at issue in Murthy itself), this connection seems clearly satisfied. And where it is the listener who has been excluded from a platform (for example, disconnected by their ISP over alleged copyright violations), the impact on their speech interests as a listener is equally obvious.

If there is a distinction between analog and digital delivery media, it cuts in favor of applying access rules to modern digital intermediaries, not against. As bandwidth constraints drop further and further away, intermediaries’ arguments that they have a technical or economic need to discriminate among users on the basis of their speech get weaker and weaker. Most arguments to the contrary rest on a confusion between delivery and selection media. Commentators project the strong expressive interests in an intermediary’s selection function (both the intermediary’s own and those of the listeners they serve) onto the intermediary’s delivery function, without stopping to consider whether these functions can be separated and distinguished.

D. Hosting

Common-carriage access rules for hosting media generally facilitate listener choice. There is an obvious argument in favor of access rules: the more speakers that are available through a hosting intermediary, the wider the range of choices it offers to listeners. The entire web was better than AOL’s walled garden; a streaming service with ten million tracks beats one with one million. The hosting intermediary might have self-interested reasons to limit access (for example, to favor its affiliated speakers or to extract more money from speakers through price discrimination), but the listeners who use the platform generally prefer that it offer the widest possible range of speakers and speech. To a first approximation, listeners either side with the speaker in a speaker-hosting platform dispute (if they want the speech) or are at most indifferent (if they do not want the speech).

Common arguments against access rules that apply to other forms of media mostly do not apply to hosting media. First, there is no scarcity of bandwidth compelling hosting intermediaries to pick and choose among speakers to carry. Bandwidth on the Internet is effectively infinite. Cloudflare could serve every user in the United States if it needed to. This is not to say that Cloudflare could, would, or should do so for free—this level of access would be quite expensive and a speaker wanting to support hundreds of millions of massive downloads would quite reasonably be expected to pay commensurately. It is just that Cloudflare could serve everything to everyone.

Second, there are generally no operational constraints that cause one speaker’s content to interfere with another’s. Common Internet hosting intermediaries are technically capable of carrying almost any item of content within a category: videos at a given resolution, files consisting of arbitrary bitstrings, and so on. These items of content may have different sizes—and might be subject to caps for short-run capacity or economic reasons—but from a technical perspective, the intermediary is entirely indifferent as to their content. A broadcast radio station must deal differently with a talk-show host in studio one, a live musical performance in studio two, and a recorded program coming via audio link from a remote location. However, in an important sense, all apps in an app store are the same. Offering speaker A’s app does not divert resources needed to offer speaker B’s.

Third, there is no scarcity of listeners’ attention compelling hosting providers to prioritize some content over others. A delivery platform can fill up a listener’s queue with unwanted speech, making it harder to receive to the speech they want. If your telephone is ringing off the hook with telemarketers, your friends will get a busy signal every time they call. However, a hosting platform does not make any claims on a listener’s attention; it simply sits there passively until the user seeks out and requests the speech. No one is interested in all 100,000,000 tracks on Spotify; but for the most part, having access to an extra 99,900,000 does not take anything away from the 100,000 one might actually be interested in listening to.

To be sure, a hosting platform with 100,000,000 pieces of content is harder to browse than a platform with 100. But this should be understood as more of a selection problem than a hosting problem. Combining hosting and selection into a single platform function takes some of the control over speaker-listener matching away from listeners and vests it in the platform. A movie theater that shows 5 movies at time offers far less listener choice than a streaming platform that gives listeners access to a catalog of 50,000. Give that same listener a list of 5 recommended hot new releases and they have all of the choice-related benefits of the movie theater and none of the drawbacks. The creation of Internet-scale hosting intermediaries creates its own need for equally useful selection intermediaries, but the first step towards facilitating their healthy development is recognizing that selection is distinct from hosting.

None of this is not to say that access rules always actually enhance the choices available to listeners. The economics of multi-sided markets are complicated, and a badly designed access rule could undermine a pricing strategy that successfully attracts more speakers and more listeners to an intermediary. My goal here is narrower. I want to argue that rules that have the effect of increasing the range of speakers available on a hosting platform are pro-listener-choice, whether or not they are structured as open access rules. The actual creation of a regulatory regime involves difficult policy considerations and mechanism designs. My point is only that this policy space ought to be available to regulators and not be foreclosed by the First Amendment.

Indeed, access rules are even easier to justify for commodity hosting platforms than they are for delivery platforms. As we have seen, filtering rules for delivery media frequently translate into corresponding exceptions to access rules. Spam-blocking, for example, might be a case of reasonable network management under network neutrality rules. This, in turn, means that regulators need to be cautious with imposing access rules, lest they inadvertently cut off filtering that listeners depend on. A must-carry rule for email, for example, would be a spammer’s dream.

To the extent that listeners do their own filtering in accessing a hosting platform, hosting platforms do not require the same degree of caution with access rules. If regulators require that Candy Crush be available in app stores, it does no harm to a user who does not enjoy match-three games. If you don’t want to play Candy Crush, don’t download it.

E. Selection

For decades, speakers have been demanding access to selection intermediaries. In the 2000s, the issue of the day was “search neutrality”: equal access to search engines’ rankings.⁷¹ More recently, speakers have complained about being “downranked” on social media—that is, not placed in other user’s algorithmic feeds. In both cases, the complaint is the same: their speech is theoretically available to users but not recommended in practice.

The fundamental challenge with giving a coherent account of access to selection is the baseline problem.⁷² It is nearly impossible to describe what “correct” or “neutral” rankings would look like. Different users have different preferences, and even the same user has different preferences in different contexts and at different times. My Facebook News Feed should not be identical to yours; we have different friends and you like fashion while I like sports. My search results for “crab cakes” should be different than my search results for “crab canon,” and even my search for “Vikings” could be referring to Scandinavian seafarers, a football team, Mars probes, a TV series, or kitchen appliances.⁷³ As a result, different selection media can quite reasonably make different choices about speakers. Indeed, for a regulator to prescribe what a selection platform should do is to become a selection platform itself.

Thus, selection stands in sharp contrast to delivery and hosting, both of which have a plausible neutral baseline: deliver or host everything. Selection is more like broadcast in this respect: choices must be made. However, the reason for the choices is very different. The need for choices in broadcast stems from bandwidth being scarce; not all speech can be made available at all. The need for choices in selection stems from attention being scarce; listeners must choose among these the speech available to them. In broadcast, transmission and selection are inextricably linked. However, on the Internet, transmission (that is, hosting plus delivery) and selection can be distinct functions, one of which substantially overcomes the scarcity problem and the other of which confronts it full-force.

Access claims in the selection context are therefore effectively a zero-sum fight among speakers. To move speaker A up one place in a feed means pushing some other speaker B down one place. Platforms might make this choice for a variety of content-based reasons—profit, ideology, whimsy—but it is much harder to identify a legitimate reason for a regulator to prefer A to B or vice-versa. A neutrality rule in a delivery or hosting context works because the government can tell an ISP to deliver all IP datagrams with equal priority (network neutrality) or a cloud-hosting provider to host all lawful content (a must-carry regime); the baseline is content-neutral. But there is no simple corresponding neutrality rule for selection. To select is to choose on the basis of content.

I argued in Speech Engines for a more limited principle of relevance to search users. That is, a search result is a search engine’s guess at what a user will find relevant to their query.⁷⁴ The user’s goals are subjective from their perspective, but it is an objectively observable fact from the search engine’s perspective how well a result corresponds to a user’s goals. The search engine must make a subjective guess at what the user will find relevant, but it is an objective fact whether the result the engine actually shows to the user corresponds to that best guess. A regulator therefore has a principled basis to intervene when a search engine is disloyal to its users—and it is disloyal when it shows them results that (objectively) differ from the engine’s own (subjective) judgment about what the users are likely to find relevant. This does not mean the regulator can substitute its own relevance judgments for those of the user or the search engine, but it does mean that the regulator can prevent the search engine from lying to users and it might be able to prevent certain conflicts of interest that might tempt the search engine into underplaying its hand.

This argument generalizes into a broader claim about selection intermediaries and listeners. A selection intermediary offers listeners a way to choose among speakers. To prohibit the intermediary from doing so, or to dictate how it makes the selection, is to interfere with listeners’ ability to choose. We should understand this as an interference with listeners’ First Amendment rights to listen (and not just the intermediary’s right to speak). At the same time, we should recognize that a selection intermediary that is dishonest or disloyal also interferes with listeners’ First Amendment interests. The dishonesty and disloyalty can provide a content-neutral basis for identifying problematic recommendations by selection intermediaries, even though those recommendations are themselves content-based.

Moody v. NetChoice

The Supreme Court’s recent decision in Moody v. NetChoice was a missed opportunity to clarify these principles.⁷⁵ Texas and Florida passed content-moderation laws that, in various ways, prohibited major social-media platforms from restricting content on the basis of political viewpoint (Texas) or from restricting content from political candidates or journalistic enterprises (Florida). The actual holding in Moody was a nothingburger about the appropriate standards for facial challenges; but in dicta, a five-justice majority explained that the platforms’ “selection, ordering, and labeling of third-party posts” were protected expression.⁷⁶

This was a thoroughly speaker-oriented perspective. It treated the problem with the states’ laws as that “an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude.”⁷⁷ This perspective makes perfect sense when the entity is a newspaper or a parade, both of which contribute to the marketplace of ideas by adding perspectives they think that readers or viewers will appreciate. And it is true, in a sense, for social media, where many platforms curate speech in ways that reflect specific viewpoints.

However, in another more accurate sense, the value of selection algorithms on social media is to users as listeners: the selection algorithms help them find speech they find interesting, valuable, and relevant to their diverse interests. A state mandate to insert some speech into a user’s feed or search results interferes with the user’s ability to listen to the speech that the user actually wants to hear. It is not just compelled speech as against the platform—it is also compelled listening as against the user. Put this way, the First Amendment problem is blindingly obvious.⁷⁸

This shift in perspective—from speaker to listener, from platform to user—is important for two reasons. First, it gives a more convincing response to the states’ argument that the platforms are not really speaking in most of their selection decisions. Facebook does not really have an opinion on whether my cousin’s apple pie photos or my friend’s story about a long line at the grocery store is worthier speech, but I certainly do. There is a sense in which the speech value of Facebook’s ranking decisions is derivative of my speech interests.

This is a compelling response to Texas’s attempt to inject political speech into social-media feeds on a viewpoint-neutral basis. It is a bit uncomfortable for Facebook to argue that it has an expressive preference to discriminate on the basis of viewpoint, but it is perfectly natural for individual users to have expressive viewpoints and to prefer content on that basis. For listeners to choose speakers on the basis of viewpoint is not to interfere with the freedom of speech; it is an exercise of that freedom and the point of the whole enterprise. Subscribing to The Nation instead of The National Review (or vice-versa) is viewpoint discrimination on the user’s part, and that is a good thing! Social-media users want feeds that reflect their divergent interests and viewpoints, and social-media platforms advance, rather than inhibit, First Amendment values when they cater to these listener preferences.

Second, the focus on listeners’ expressive interests in choosing what speech they receive on social-media platforms and on having platforms that can algorithmically make selections in accordance with those interests makes clearer that this is an argument only about selection and not necessarily about hosting. To the extent that states attempt to regulate platforms’ hosting functions with neutrality or must-carry mandates, those laws may rest on a firmer basis than their attempts to regulate platforms’ selection functions.⁷⁹ As I argued above, there is a plausible neutral baseline for hosting, and regulating hosting by itself does not interfere with listeners’ choices in the same way as regulating selection does.

In the actual Moody and Paxton cases, the platforms’ hosting and selection functions were closely related, and the most common content-moderation remedy they applied was to delete the content entirely.⁸⁰ Similarly, the states’ laws ran rules that sounded in hosting (“permanently delete or ban”) together with rules that sounded in selection (“post-prioritization” or “shadow ban”), as if all of these practices were entirely equivalent. However, it is possible to imagine future laws that more clearly require hosting of content on a viewpoint-neutral basis while leaving platforms greater discretion over selection. I think these laws pose genuinely harder questions. Moody’s majority opinion collapses these distinctions in an unhelpful way.

Antitrust and Self-Preferencing

A listeners’-choice perspective also shows why antitrust regulation of selection intermediaries is broadly permissible, even when some of the anticompetitive conduct complained of involves the selection of speech.⁸¹ Again, the key point is that although users have content- and viewpoint-based preferences among speech, the government can act neutrally in terms of content by taking those preferences into account, whatever they are. An app store that rejects fart apps because “the App Store has enough fart, burp, flashlight, fortune telling, dating, drinking games, and Kama Sutra apps, etc. already”⁸² is certainly expressing a viewpoint. However, to the extent that users want fart apps and the app store is suppressing competing fart apps in favor its own, promoting welfare-enhancing consumer choices is a perfectly

legitimate government interest and the harm is cognizable under traditional antitrust principles.

Thus, rules against self-preferencing by selection intermediaries will generally be permissible under the First Amendment. This position may sound absurd if one sees only the First Amendment interests of the intermediary, and it is still difficult if one takes into account the interests of its competitors. However, it becomes entirely reasonable if one considers the interests of affected users. Indeed, there is a natural congruence between the interests of users as listeners (my argument in this essay) and the interests of users as consumers (the traditional stance of antitrust law).

More specifically, it would be permissible to have a rule that a pure selection intermediary must treat first-party content that it itself produced evenhandedly with third-party content from competitors. The intermediary will have valid, expressive reasons to prefer some content over others, and these decisions will mostly be off-limits to regulatory scrutiny, as discussed above. However, a regulator can make clear that the platform cannot prefer first-party content simply because it is first-party content. The platform can use any ranking rules it wants, but those rules must be applied even-handedly to all—or at least, the platform must give users the option of disabling any self-preferencing.

For similar reasons, disclosure of speech-selection intermediaries’ commercial ties is also generally permissible under traditional consumer-protection principles. Listeners can legitimately expect to know when a speaker has a financial incentive to tell them one thing rather than another, an expectation that applies to speech selection as well as to speech itself. At the moment, paid advertising in search results and in social-media feeds must be disclosed as such; however, a stronger rule that required selection platforms to disclose when recommended content is first-party, or when there are substantial financial ties between the platform and a speaker, would also be allowable for the same reasons.

Finally, full structural separation between hosting, delivery, and selection is a plausible antitrust remedy or regulatory mandate. In Part IV, I will discuss in more detail why this kind of separation might be appealing from a free-speech perspective. For now, I just want to note that the economic and technical separation of these functions is itself plausible from a First Amendment perspective, Moody notwithstanding. I have been arguing that hosting and delivery platforms could be subject to must-carry rules, but selection platforms generally cannot. Much of the gap between the two sides’ positions in Moody arose from the fact that the laws’ proponents generally cited caselaw about common carriage in hosting and delivery settings, while

the laws’ opponents generally cited caselaw about expressive choices in selection settings.

The thing that made the Moody cases difficult to resolve was that the platforms combined both hosting and selection functions, and most of the briefing (and the opinions) ran these functions together. This would seem to open up an argument on the platforms’ part: Moody confirms they have full First Amendment protection when they engage in selection, so even a pure hosting platform is always allowed to engage in selection—i.e., there is a First Amendment right to combine these two functions. However, I think this does not follow from Moody; or to the extent that it does, Moody is wrong.

The thrust of the common-carriage cases is that the public provision of standardized service can be subject to nondiscrimination obligations.⁸³ This, for example, is what the Telecommunications Act of 1996 attempted to do with its distinction between “telecommunications service” (standardized and common-carriage) and “information service” (bespoke and unregulated). To the extent that this distinction is coherent (and I think that it is, much of the time), nondiscrimination obligations should apply to the standardized services and not to the individualized ones. Moody may have missed this distinction, but the Court’s opinion in 303 Creative LLC v. Elenis seems to hinge on it; that is, it is First-Amendment-compelled speech to require a designer to make a custom wedding website (“pure speech”), but it is perfectly permissible to require a merchant to sell a commodity product to all comers.⁸⁴ In listener terms, listeners are paying attention to the intermediary’s own speech in individualized cases like selection, while paying attention to third-party speech in standardized cases like hosting.

Unranked Feeds

An interesting partial and special case of separating hosting from selection is to require a provider to include an unranked or chronological feed for those users who want it. Facebook offers both “Top Posts” (algorithmically ranked) and “Most Recent” (chronological) feeds; Reddit offers “Best” and “Hot” (algorithmically ranked) but also “New” (chronological) sorting options.

What makes these options feasible is that there is a plausible objective baseline. A chronological feed on Facebook is “all posts from friends and pages I follow, sorted by recency.” This is workable in a way that “all posts I would be interested in” is not. The restriction to content from accounts that one follows is what makes the option to display everything tractable. A purely chronological feed of everything posted to X (the “firehose”) is not of interest to most users—it would be overwhelmingly vast—but a purely chronological feed of everything posted by those they follow is. For similar reasons, a non-algorithmic search engine is an oxymoron except in domains that are so small or simple as to barely require a search engine at all. Anything larger than “find on this webpage” requires contestable choices about ordering.

A chronological-feed option is listener-choice enhancing. A chronological-feed mandate would not be. Facebook and other social-media platforms have extensive evidence showing that users stay on their sites longer and engage with more posts when they see non-chronological feeds. This is a legitimate user preference; given the limits of attention, the user benefits greatly from delegating the choice to Facebook.⁸⁵ However, not every user wants algorithmic feeds. I, for example, only used chronological ordering on Twitter, and have stuck to that preference on federated platforms. This, too, is a legitimate user preference; a platform that forces algorithmic ordering on everyone when chronological ordering is feasible thwarts some listeners’ choices about speech selection.

This is another way in which Moody paints with too broad a brush. Seeing selection as purely a matter of platform speech makes the majority insensitive to listeners’ speech interests. Requiring a chronological option from social media feeds in addition to a platform’s preferred algorithmic option looks like a restriction on the platform’s speech rights; indeed, to the majority it might even be compelled speech. However, a chronological feed option is also a way of respecting users-as-listeners’ choices about speech without forcing a platform to make ranking choices that it and its users would otherwise disagree with. Requiring a chronological option strictly increases the choices available to listeners, while not interfering with a platform’s ability to provide its preferred ordering to any listeners who are interested in hearing it.

IV. Filtering

Now consider media from the perspective of unwilling listeners. As we will see, there are really three different types of unwilling listeners in media regulation. In each case, it is helpful to distinguish between (1) downstream filtering infrastructure that empowers listeners themselves to avoid unwanted content, and (2) upstream filtering rules that prevent that content from reaching them in the first place.

First, there are listeners who are uninterested in or who actively dislike particular content: opera fans who loathe rap music or reality television fans who find scripted shows unbearably dull. Here, downstream filtering infrastructure is typically sufficient. As long as there is something they would rather watch (an access problem), as long as they are able to find out about it (a selection problem), and as long as they are actually able to switch to it (which is true for most media),⁸⁶ they can watch operas and reality shows, and ignore the rap and scripted dramas. It does not bother them, because they do not need to see it. Upstream filtering rules are unnecessary.

Second, there are listeners who are individually targeted with specific unwanted content that is hard for them to avoid. This is fundamentally a delivery problem; it does not arise with other types of media. Sometimes speakers target individual listeners, like a harassing telephone caller. Sometimes they target many listeners indiscriminately, like an email spammer. Either way, listeners can try to use self-help downstream filtering to avoid it, but if that fails, they may need upstream filtering to help prevent it from reaching them in the first place.

And third, there are minors. Sometimes, children want to avoid violent, sexual, disturbing, or other adult-themed content because it upsets them, but they come across it by accident and cannot look or flip away in time. Sometimes—perhaps more often—the problem is that children are willing to see this material, but their parents or guardians want to shield them from it. In both cases, the theory is that children are less capable of making choices for themselves as listeners than adults are, and therefore that some kind of upstream filtering rules are necessary because downstream ones will fail. Either the kids themselves will be less good at filtering than their parents would be, or the kids will affirmatively evade the filtering their parents try to impose.

Downstream filtering infrastructure also plays a crucial role in supporting (or undermining) the rationales for other kinds of media regulations. On the one hand, good downstream filtering plays a crucial role in making it possible for listeners to pick and choose among the superabundance of content that access rules try to make available. On the other, good downstream filtering can reduce the need for upstream filtering rules—in First Amendment terms, it is frequently a “less restrictive alternative.”

A. Broadcast

In broadcast media, unwilling listeners were typically expected simply to change the channel. They may not always have had many other broadcast options, but no one was forcing them to watch any particular broadcast. Even this limited measure of choice was sufficient to protect unwilling listeners from programs they despised. As the range of channels expanded (with it, the range of choices), the less of an imposition any one unwanted channel was on listeners—indeed, the less likely they were to notice or care about it at all. Similarly, by their nature, very few broadcast programs were personally targeted at, or specifically harmful to, individual listeners. The local CBS affiliate simply did not care enough about Angela Johnson at 434 Oakview Terrace to preempt Murder She Wrote with an hour-long special insulting Johnson and her life choices.

Instead, the filtering problems on broadcast media primarily concern minors. The theory of “just change the channel” does not work for them for two reasons. First, something offensive or shocking could come up unexpectedly when one is just flipping through channels. This was the case in FCC v. Pacifica Foundation, in which the Supreme Court upheld the FCC’s finding that a radio broadcast of George Carlin’s “seven dirty words” routine was indecent in violation of its regulations.⁸⁷ And it is the case with the FCC’s modern attempts to extend its obscenity-and-indecency rules to cover fleeting expletives and other sudden intrusions into otherwise family-friendly broadcasts, like Bono calling U2’s Best Original Song win at the Golden Globes “really, really, fucking brilliant” live on air, or the 2004 Super Bowl wardrobe malfunction.⁸⁸ These are cases where a listener (here, a parent making choices on behalf of their child) cannot effectively make a choice not to receive the unwanted material because of the linear, real-time nature of broadcast audio and video. The character of the channel changes more quickly than the listener can flip away.

Second, sometimes children want to watch shows their parents do not want them to. Nominally, the theory here is that parents cannot constantly supervise their children’s TV viewing; stations have to do the filtering work that parents cannot.⁸⁹ This is why the FCC’s indecency regulations are confined to only the hours from 6:00 AM to 10:00 PM each day: at night, when indecency regulations do not apply, kids are assumed to be in bed and not watching TV.⁹⁰ The indecency rules are an incursion on adults’ abilities as listeners to choose what speech they want to receive. They are an exception to the normal rule that willing listeners beat unwilling listeners. The justification is simply the usual one offered so often in American law: protecting the supposed innocence of the young from the purportedly corrupting influence of being aware that sex is a thing that exists. The eight hours at night when indecency rules do not apply serve as a concession to adults’ interests as listeners.

I say that this is “nominally” the theory of broadcast indecency regulation because it only really makes sense in a world where the main audio and video media are broadcast—a world we have not lived in for decades. Cable, satellite, and other subscription services have never been subject to the indecency rules. Here, the theory is that parents can choose whether or not to subscribe, presumably in a different way than they could choose whether or not to have a TV. Thus, they have an upfront choice that they can use to prevent their children from receiving unwanted indecent material. If you do not want your kids to watch Skinemax late at night, do not get cable, or do not pay extra for premium channels. Similar laws and similar logic apply to “over-the-top” broadcast services on the Internet, like ESPN+’s live sports games. If you do not like it, do not subscribe.

At times, the government has tried to impose more stringent filtering rules on broadcasters. Listeners’ choices provide a simple and compelling explanation of where the doctrine has come to rest. Consider United States v. Playboy Entertainment Group, Inc., where § 505 of the 1996 Telecommunications Act required cable operators to “fully scramble or otherwise fully block”⁹¹ sexually explicit programs except between the hours from 10:00 PM to 6:00 AM the next day.⁹² Of course, most cable operators already scrambled sexually explicit channels for non-subscribers, and sexually explicit channels like Playboy Television were typically “premium” offerings sold à la carte, so only paying subscribers to these specific channels would have a converter box to descramble them.⁹³ So far, this was simply a case of parental choice over what broadcast services to subscribe to.

The technological complication was “signal bleed”; the analog scrambling technologies available in the 1990s could not prevent portions of the audio and video from leaking through, albeit in somewhat garbled form.⁹⁴ To Congress, signal bleed meant that existing scrambling by itself was insufficient, and so cable companies would need to “fully block” such content if they could not “fully scramble” it. However, the Supreme Court observed that there was a less-restrictive alternative to fully banning a channel—“block[ing] unwanted channels on a household-by-household basis.”⁹⁵ Indeed, this capacity was already required of cable systems by § 504 of the Act,⁹⁶ so the law contained its own less-restrictive alternative. In other words, a legal regime requiring upstream filtering for all listeners by broadcast intermediaries was unconstitutional because there was a downstream alternative that gave individual listeners a more granular choice.

A more technical complex broadcast filtering system is the “V-chip,” which the 1996 Telecommunications Act required in all televisions shipped through interstate commerce.⁹⁷ The Act describes the V-chip bloodlessly as “a feature designed to enable viewers to block display of all programs with a common rating,”⁹⁸ but the intent and implementation were that the rating systems would flag programs with sexual, violent, or other type of adult content. While the V-chip is mandated by law, the ratings that it interprets are not. The TV Parental Guidelines, which include classic bangers like TV-14-LS (many parents would find the contents unsuitable for children under 14 because of crude language and sexual situations) are “voluntarily rated by broadcast and cable television networks, or program producers.”⁹⁹ Overall use of the V-chip seems to have peaked at about 15 percent of parents.¹⁰⁰

It is enlightening to consider the V-chip, like § 504, as a mechanism for creating listener choice under the choice-unfriendly conditions of broadcast. In both cases, signals are still transmitted indiscriminately to all listeners, but in both cases, listeners can individually choose whether to opt in or opt out of making those signals intelligible. Section 504 does so in a less granular way (entire channels), while the V-chip does so in a more granular way (individual programs), but the general idea is the same. It is not a coincidence that in both cases, the regulatory regime converged on a technical system that put more choices in the hands of individual households. This overall downstream movement of choices about speech—from speakers and intermediaries to listeners; from “push” media to “pull” media—is one of the most significant trends in recent media history.

B. Delivery

Now consider filtering rules that help unwilling listeners avoid unwanted deliveries. The First Amendment does not operate directly here; outside of some narrow contexts involving a “captive audience,” there is no First Amendment right not to be spoken to.¹⁰¹ Instead, laws designed to protect listeners from unwilling communications in delivery media are generally constitutional, provided that they are suitably tailored to the actual harms suffered by listeners who are genuinely unwilling.

The most obvious example is that anti-harassment laws have repeatedly been upheld when they involve one-to-one communications.¹⁰² Repeated telephone calls or harassing emails can be the subject of valid restraining orders, civil judgments, or criminal convictions.¹⁰³ The key here, as I argued in Listeners’ Choices, is that these restrictions do not prevent speakers from addressing willing listeners.¹⁰⁴ They remain free to telephone anyone else they want; only one particular number is forbidden. The legal system can therefore protect the unwilling victims of harassment without interfering in the core First Amendment relationship between willing speaker and willing listener.¹⁰⁵ An order requiring a speaker to take down a blog post about the victim interferes with that relationship; an order requiring them to stop sending direct messages to the victim does not.¹⁰⁶

Listeners can opt out of unwanted one-to-one commercial speech. The Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) for email, the Telephone Consumer Protection Act (“TCPA”) for telephone and Short Message Service (“SMS”), Do-Not-Call for telephone, and the TCPA for faxes all broadly prohibit sending certain types of commercial solicitations to unwilling listeners. CAN-SPAM uses an opt-out system; a sender gets one bite at the apple but must refrain from further emails once a recipient objects.¹⁰⁷ With some exceptions, TCPA prohibits the use of automated dialers and prerecorded messages (that is, bulk communications particularly unlikely to be of interest to individuals) unless they affirmatively opt in.¹⁰⁸ Do-Not-Call bars all unsolicited commercial calls to numbers on the list,¹⁰⁹ and TCPA bars all unsolicited commercial faxes.¹¹⁰ All of these laws have been upheld against First Amendment challenges.¹¹¹

The First Amendment rule for unwanted postal mail is even stronger. In Rowan v. United States Post Office Department, the Supreme Court upheld a law under which “a person may require that a mailer remove his name from its mailing lists and stop all future mailings to the householder.”¹¹² Although the law was framed in terms of allowing recipients to opt out of receiving “erotically arousing or sexually provocative” advertisements,¹¹³ it allowed recipients “complete and unfettered discretion in electing whether or not [they] desired to receive further material from a particular sender,”¹¹⁴ and the legislative history indicated that neither the postal service nor a reviewing court could “second-guess[]” the recipient’s decision.¹¹⁵ “Nothing in the Constitution compels us to listen to or view any unwanted communication,” wrote Chief Justice Burger for a unanimous court.¹¹⁶ Compare Rowan with Bolger v. Youngs Drug Products Corp., in which the Court held a law prohibiting the mailing of contraceptive advertising unconstitutional:¹¹⁷ that is, a prohibition on the use of mailings was constitutional when the prohibition was requested by the recipient (Rowan) but unconstitutional when the prohibition was imposed by the government (Bolger).

Although Rowan is sometimes discussed as a captive-audience case,¹¹⁸ it is better understood as a case about delivery media. Consider Frisby v. Schultz, a true captive-audience case: there is nowhere to go to hide from protesters outside your door, so a law prohibiting residential picketing is constitutional.¹¹⁹ By contrast, the Supreme Court has treated self-help as effective against unwanted mail. Bolger stated that the “short, though regular, journey from mail box to trash can is an acceptable burden, at least so far as the Constitution is concerned.”¹²⁰ The only way this Bolger dictum can be squared with Rowan is if the basis of Rowan’s holding is listeners’ rights against unwanted communications, rather than one being a captive audience in one’s home against unwanted postal mail.

It is also widely accepted that there is no First Amendment problem if a delivery carrier implements some form of filtering or blocking at the request of a user. Wireless and landline telephone companies offer call blocking to their customers, which allows a user to block all further calls from a number. Indeed, FCC regulations explicitly permit providers to block calls that are likely to be unwanted based on “reasonable analytics”¹²¹ so long as the recipient has an opportunity to opt out of the blocking.¹²² Email filtering is also incredibly widely deployed. Some users do the filtering themselves, manually or with an app, but many rely on the filtering (both explicit blacklists and using machine learning) offered by their email providers. Here again, § 230 plays a role: the most common reason that delivery media block “otherwise objectionable” communications is that their users object to them, and spam is a common reason.¹²³

Finally, many laws require speakers to accurately identify themselves upstream when using delivery media so that listeners downstream can decide whether or not to receive their speech. CAN-SPAM prohibits false or misleading header information,¹²⁴ prohibits deceptive subject lines,¹²⁵ and requires that advertisements be disclosed as such.¹²⁶ The Truth in Caller ID Act prohibits spoofing caller ID information “with the intent to defraud, cause harm, or wrongfully obtain anything of value.”¹²⁷ The Junk Fax Prevention Act of 2005 (“JFPA”) requires clear “identification of the business, other entity, or individual sending the [fax] message.”¹²⁸ Although there is a right to speak anonymously under many circumstances, there are limits on how far a speaker can go in lying about their identity to trick a listener into hearing them out. Importantly, some of these laws require delivery intermediaries to implement the infrastructure for accurate identification. The FCC, for example, requires telephone providers to implement a comprehensive framework against caller-ID spoofing known as “secure telephone identity revisited and signature-based handling of asserted information using tokens standards,” otherwise abbreviated as “STIR/SHAKEN.”¹²⁹

C. Hosting

Listener choices play a central role in the justifications for hosting providers’ First Amendment rights—and also in the justification for speakers’ access rights to hosting platforms. These justifications presume that listeners can voluntarily choose to engage with hosted content they want and to avoid hosted content they do not want. In the terminology of Listeners’ Choices, listeners can be asked to bear the necessary “separation costs” because they can easily and inexpensively choose where to click.¹³⁰ It follows, then, that unwilling listeners’ objection to content are not a sufficient reason to prevent it from being hosted for willing listeners.

The Supreme Court’s decision in Snyder v. Phelps is a nice example.¹³¹ In addition to its funeral protests, the Westboro Baptist Church has a website that is, if anything, more offensive and upsetting. However, a website is even easier for an unwilling listener to avoid. The Church physically picketed at Albert Snyder’s son’s funeral, but he only found the website “during an Internet search for his son’s name.”¹³² Unsurprisingly, he pressed only the funeral-protest theory before the Supreme Court and abandoned his tort claims based on the website.¹³³ The Court held that the First Amendment protected the Church’s picketing, and the argument is even stronger for the website.

Now consider whether hosting providers can have responsibilities to avoid carrying harmful-to-minors material. To simplify only slightly, the history of anti-indecency regulation is that some adults have tried to restrict minors’ access to sexually themed content by passing upstream filtering laws requiring speakers and hosting platforms to prevent the posting of such content. The courts have responded by invalidating these laws whenever listener-controlled downstream filtering is a plausible alternative. Indeed, it is striking how many contexts the same basic rationale has worked in.

Start with Sable Communications of California, Inc. v. FCC, in which federal law regulated “dial-a-porn” services by prohibiting the transmission of indecent interstate commercial telephone messages.¹³⁴ While the prohibition might have been constitutional as to minors, adults have a constitutional right to view indecent but not obscene material. Because the statute prohibited transmission to adults as well, it restricted protected speech, and therefore was unconstitutional.

Put this way, Sable is a classic hosting case of both willing and unwilling listeners. The fact that the speech might reach some unwilling (minor) listeners does not mean that it can be prohibited entirely in such a way as to deprive willing (adult) listeners. Indeed, this first-cut explanation will apply perfectly well to almost all of the cases in this section. It is not wrong.

However, Sable is also a filtering case. The FCC had previously considered multiple technologies to block minors without blocking adults, including credit-card verification, access codes that would be provided only following an age verification process, message scrambling requiring a descrambler that only adults would be able to purchase, and customer-premises blocking, in which subscribers could block their phones from being

able to call entire exchanges (including the paid numbers over which Sable and other dial-a-porn operators provided their services). The Court specifically identified these technical schemes as plausible “less restrictive means, short of a total ban, to achieve the Government’s interest in protecting minors.”¹³⁵

These are all technologies to distinguish adults from minors, but they are also all filtering technologies. All four of them require a user to take an affirmative step to listen to particular speech. Indeed, the act of dialing a phone number itself is an affirmative step that these other mechanisms could piggyback on. This is why I describe Sable as a close cousin to a hosting case. To be sure, Sable Communications was delivering its own speech and not that of third parties, but it was fundamentally sending content to listeners on demand, and in such a way that they could predict the general outlines of the speech they were about to receive. (This fact alone is sufficient to distinguish FCC v. Pacifica Foundation and the other broadcast-indecency cases.¹³⁶)

The same arc is visible in the Supreme Court’s caselaw on indecency on the Internet. The first stop was Reno v. American Civil Liberties Union.¹³⁷ The Communications Decency Act prohibited the transmission of indecent or sexual material to minors¹³⁸—including a good deal of material that was fully constitutional for adults to receive.¹³⁹ The government tried to defend the statute by arguing that it only required intermediaries to refrain from sending such material to minors, while leaving them free to send it to adults.¹⁴⁰ However, the Court held that “this premise is untenable”—that “existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.”¹⁴¹ In other words, the absence of effective age verification turned a de jure rule against sending indecent material to minors into a de facto rule against hosting it in general.¹⁴²

Seven years later, in Ashcroft v. American Civil Liberties Union, the Supreme Court confronted a more narrowly drafted law, the Child Online Protection Act (“COPA”).¹⁴³ Again, the statute prohibited sending to minors certain material that was constitutional for adults to receive.¹⁴⁴ This time, however, the affirmative defenses were broader; providers were protected as long as they required a credit card, digital age verification, or any other “reasonable measures that are feasible under available technology.”¹⁴⁵ The Court held that COPA was unconstitutional because “blocking and filtering software”—software operated and controlled by parents to limit the sites their children can access—was a less restrictive and more effective alternative.¹⁴⁶

As in Playboy Entertainment Group, the availability of more effective downstream filtering technologies meant that a law requiring upstream filtering was unconstitutional. However, unlike in Playboy Entertainment Group, the downstream filters were made available by third parties. The fact that parents could install their own filtering software meant that website hosts were under no duty to do their own filtering. This is a listener-choice-facilitating rule: Yes, it transfers some of the burdens of filtering from intermediaries to listeners, but it also means that each family can choose for itself how to tune its filters, if any.

In United States v. American Library Ass’n, the Supreme Court upheld the provisions of the Children’s Internet Protection Act (“CIPA”), which conditioned federal funding to schools and libraries on their installation of filtering software.¹⁴⁷ A four-Justice plurality held that the condition was a valid exercise of Congress’s Spending Clause power and that library Internet access was not a public forum.¹⁴⁸ Meanwhile, Justice Kennedy and Justice Breyer’s concurrences in the judgment made nuanced arguments about listeners’ choices. Justice Kennedy’s argument rested on the government’s claim that “on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay”—that is, CIPA allowed willing adult listeners to decide for themselves what sites to view.¹⁴⁹ Justice Breyer made a similar point, arguing that an unblocking request was a “comparatively small burden.”¹⁵⁰ Whether or not these claims are empirically accurate, the general principle is consistent with a deference to listener-controlled choices about filtering, subject only to the carve-out that minors are not regarded as having the autonomy to choose to view certain material that their elders regard as harmful to them.

D. Selection

I have argued that selection generally facilitates listener choices among speech, and that government attempts to alter platforms’ selection decisions interfere with listeners’ practical ability to find the content that they want. This is not to say that platforms’ selection decisions are ideal or give listeners the full degree of choices they might enjoy. Platforms will almost always get some users’ choices wrong some of the time. Every update you scroll past or search result you ignore is a mistake from your perspective. Platform-provided selection is better than the chaos of content without selection, but there is almost always room to improve.¹⁵¹

It is helpful, then, to recognize that the bundling of hosting and selection on today’s social-media platforms may be a bug rather than a feature. The previous subsection argued that separation of hosting and selection could be permissible as a way for government to ensure that speakers are able to be heard by listeners who genuinely want to hear them (hosting) while not forcing their speech on listeners who do not (selection). However, there is another advantage to clearly separating the two functions, whether required by regulation or voluntarily adopted by a platform.

What would a world where social-media platforms separated hosting from selection look like? The short answer is that it would look much more like web search already does. Hosting providers make content available at speakers’ request, with stable URLs at reachable IP addresses, and transmit that content to listeners at listeners’ request. Meanwhile, search engines index the content and provide recommendations of relevant content to listeners, also at listeners’ request. Listeners have a choice of competing search engines to help them make their choice among competing speakers. The system is not perfect—Google has a dominant market share for general web search in the United States—but there is competition for those users who are willing to use other search engines. For example, Bing, DuckDuckGo, and Kagi are three highly creditable alternatives.

Several commentators have described a similar possible separation for social media. One proposal from a group of Stanford researchers is for “middleware,” defined as “software, provided by a third party and integrated into the dominant platforms, that would curate and order the content that users see.”¹⁵² Users on the platform would rely on the platform for hosting speakers’ content, but third-party middleware would do the selection. The first and most obvious virtue of middleware is that it introduces competition into the selection process, even when a platform is “dominant”; a monopoly on hosting does not automatically translate into a monopoly on selection.

The authors of the Stanford proposal argue that middleware would “dilute[] the enormous control that dominant platforms have in organizing the news and opinion that consumers see.”¹⁵³ This is entirely correct, but I would put the point differently. Middleware pushes control from a platform towards its users, specifically towards users as listeners. An integrated platform benefits from its position at the center of the two-sided market for hosting, even if its selection is disappointing to users. However, when selection is broken out, selection intermediaries will attract users precisely to the extent that they succeed in satisfying those users’ desire for useful advice about what speech to listen to. That is, middleware selection providers compete along the right axis.

A close relative of middleware—or perhaps a subset of it—is “user agents”: software controlled by the end user that takes the content from a platform and curates it. The difference between middleware and a user agent is that middleware is integrated with the platform and takes over the selection function, while a user agent starts from the content selected by the platform and performs a second round of selection on it. For example, an ad blocker integrated into a user’s browser takes the content selected by a website and curates it by removing the ads. I have argued that these user agents are important for user autonomy in deciding what software to run on their computers, and a similar argument applies to users’ autonomies over what speech they receive.¹⁵⁴

Ben Thompson, a technology and business analyst and journalist, offered a fascinating road-not-taken proposal for Twitter (prior to its transformation into X by Elon Musk).¹⁵⁵ Thompson argued that Twitter should be split in two: TwitterServiceCo would be “the core Twitter service, including the social graph”; TwitterAppCo would be “all of the Twitter apps and the advertising business.”¹⁵⁶ TwitterAppCo would pay TwitterServiceCo for application programming interface (“API”) access to post to timelines and read tweets, but so could other companies. As Thompson observes, this solution would “cut a whole host of Gordian Knots”: it would make it easier for new social-media entrants to compete on offering better clients or better content moderation; it would pull many controversial content-moderation decisions closer to the users they directly affect; and it would enable a far greater diversity of content moderation policies (both geographically and based on user preferences).¹⁵⁷

Needless to say, this was not the route that Musk followed after his acquisition of Twitter—but it is much closer to the route that many post-Twitter social-media services are following. In their ways, Mastodon, Bluesky, and Threads have embraced a version of the middleware ideal, but with an interesting twist. All three of these systems have a “federated” approach to hosting. Users have a direct affiliation with a server or system; they upload their posts to it, and they read other users’ posts through it.

So far, so familiar. The difference is that these services all federate with other services providing similar functionality to their own users. They copy posts from other servers; they make their own users’ posts available for other servers to copy. The result is that content posted by a user anywhere is available to all users everywhere. As a consequence, any given server has less power over its users; they can migrate to a different server without cutting themselves off from their connections on the social graph. Mastodon, for example, has built-in migration functionality that allows users to change servers and have their contacts automatically update subscriptions to the new one.

Federation also has substantial content-moderation benefits because, like middleware, it pushes content moderation closer to the listeners who are directly affected by it. Each federated server can have its own content-moderation policy—that is, each server can implement its own selection algorithm. This is not quite middleware as such, in that a server combines hosting and selection. However, it is much closer than a fully integrated platform would be. Indeed, once it hits a basic baseline of technical competence and reliability, a federated server’s principal differentiator is its moderation policy. So here, too, users who prefer a particular set of policies as listeners have the ability to choose on that basis. This, too, is speech-promoting.

The most careful theorization is of this model is Mike Masnick’s Protocols, Not Platforms.¹⁵⁸ Masnick argues that the key move is to separate a platform into a standardized open protocol and a particular proprietary implementation of that protocol. The interoperable nature of the protocol is what ensures that implementations are genuinely competing on the basis of users’ preferences over content, and not just based on the lock-in network effects of a single platform that has the largest userbase. That is, interoperability enables migration, which enables competition, which promotes competition and speech values. Masnick gives a detailed argument for why this model promotes diversity in users’ speech preferences. I would add only that this diversity is primarily diversity of users as listeners.

To finish, I would like to note a type of selection that can come closer to the middleware goal of facilitating listener choice, even within proprietary platforms. Shareable blocklists (a) allow users to make and share a list of users they do not want to see or receive any content from, and (b) allow other users to import and use another’s shared blocklist.¹⁵⁹ Blocking is a relatively crude form of selection; it does not necessarily work against abusers or spammers who change their identity or use sock puppet accounts, nor does it let through individual worthwhile posts from users who are otherwise blocked. Still, blocklists satisfy the key desideratum: they are listener-controlled filters. Shareable blocklists have been used for email, on Twitter (before X discontinued this feature), and for ad-blocking on the web, among other settings.

Conclusion

Internet media come in different bundles of functions than pre-Internet media did. Offline, broadcast combined transmission and selection in a way that made it appear that there was a natural connection between speakers’ access to a platform and listeners’ interests, and that both were naturally opposed to media intermediaries’ own speech claims. All of this was true enough in that context, given the structural constraints of the broadcast medium.

However, the assumption that listeners and speakers are united against intermediaries is simply not true when applied beyond the broadcast context. Instead, we frequently find that intermediaries are listeners’ allies, providing them with useful assistance in finding and obtaining the speech of interest to them—and that they form a united front against speakers trying to push their speech on unwilling listeners. Applying the broadcast analogy in this context can result in making unwilling listeners into captive audiences, all while claiming that it is necessary in the Orwellian name of listeners’ rights.

Instead, I have argued that to think clearly about speech on the Internet, we must distinguish between the functions of delivering, hosting, and selecting content, and that we must see each of them from listeners’ point of view. In such a setting, carefully drafted neutrality rules on delivering and hosting can be genuinely speech-facilitating because they promote listeners’ choices. In contrast, most attempts to regulate selection interfere with listeners’ choices. There are a few exceptions—structural separation, interoperability and middleware, restrictions on self-preferencing, and chronological feed options—but all of them are about giving listeners genuine choice among selection intermediaries, or about ensuring loyalty within the intermediary-listener relationship. Beyond that, selection intermediaries should largely be free to select as they see fit, and listeners should largely be free to use them or not, as they see fit.

Seeing the Internet from listeners’ perspective is a radical leap. It requires making claims about the nature of speech and about where power lies online, which can seem counterintuitive if you are coming from the standard speaker-oriented First Amendment tradition. But once you have made that leap, and everything has snapped into focus again, it is impossible to unsee.¹⁶⁰

This is not to say that listeners should always get what they want, any more than speakers should. A democratic self-governance theory of the First Amendment might be acutely concerned that groups of like-minded listeners will wall themselves off inside echo chambers and filter bubbles. This is a powerful argument, and to refute it by appealing to a pure listeners’ choice principle is to beg the question. However, even if a shift to listeners’ perspective cannot resolve the debate between self-governance theories and individual-liberty theories—between collective needs and individual choices—such a shift can still clarify these debates. The fear of echo chambers and filter bubbles is fundamentally a concern about listeners’ choices, not one about speakers’ rights. Focusing on what listeners want, and on the consequences of giving it to them, makes clear what is really at stake. It also sheds light on the tradeoffs involved in adopting one media-policy regime as opposed to another.

Listeners online live in a world where countless chattering speakers vie for their attention using every dishonest and manipulative tactic they can—partisans, fraudsters, advertisers, and spammers of every stripe. Selection intermediaries are listeners’ best, and in some cases their only, line of defense against the cacophony; it can be the only way to tune out the racket and hear what they actually want to hear. Intermediaries have immense power over listeners because of it, but what listeners need is to moderate that power and tip the balance more in their favor, instead of eliminating the intermediaries entirely. Being more protective of platforms’ selection decisions gives us more room to be skeptical of their hosting and delivery decisions; it lets us better distinguish when speakers have legitimate claims against platforms and when they do not.

Listeners are at the center of the First Amendment and more so online than ever before. It is time for First Amendment theory and doctrine to get serious about listeners’ choices among speech on online platforms.

98 S. Cal. L. Rev. 1231

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James Grimmelmann*

* Tessler Family Professor of Digital and Information Law, Cornell Law School and Cornell Tech. I presented an earlier version of this article at The First Amendment and Listener Interests symposium at the University of Southern California on November 8–9, 2024. My thanks to the participants and organizers, and to Aislinn Black, Jane Bambauer, Kat Geddes, Erin Miller, Blake Reid, Benjamin L.W. Sobel, and David Gray Widder. The final published version of this article will be available under a Creative Commons license.

Islands of Algorithmic Integrity: Imagining a Democratic Digital Public Sphere

September 2025September 2025Aziz Z. Huq*

Introduction

A class of digitally mediated online platforms play a growing role as the primary sources of Americans’ knowledge about current events and politics. Prominent examples include Facebook, Instagram, TikTok, and X (which had formerly been known as Twitter). While only eighteen percent of Americans cited social media platforms as their preferred source of news in 2024, this number had risen by a striking six points since 2023.¹ These platforms also compete in “one of the most concentrated markets in the United States,”² as a consequence of network effects and high barriers to entry.³ Current trends suggest that social media will soon outpace traditional news websites as the main source for a plurality of Americans’ understanding of what happens in the world.⁴ Such platforms, which I will call “social platforms” here, are thus in practice a central plank of the political public sphere given their growing role in supplying so many people with news.

The role that social platforms play in public life has sparked a small avalanche of worries even before the extraordinary entanglement of big tech’s corporate leadership with the partisan policy projects of the second Trump administration.⁵ The worries are diverse. Many commentators have aired concerns about the effects of social-platform use on mental health and sexual mores,⁶ or the extent of economic exploitation in this platform-based gig economy.⁷ These important cultural and economic worries are somewhat distinct from worries surrounding the political functions of the digital public sphere. It is the latter’s pathologies, and only those problems, that this essay—as well as the broader symposium on listeners’ rights in which it participates—concentrates on.

Even within the narrower compass of political speech defined in strict and demotic terms, the role of social platforms raises several distinct concerns. I take up three common lines of criticism and concern here. A first line of critique focuses on these platforms’ alleged harmful effects on a broad set of user beliefs and dispositions thought to be needful for democratic life. Social platforms, it is said, pull apart the electorate by feeding them fake news, fostering filter bubbles, and foreclosing dialogue—to the point where democratic dysfunction drives the nation toward a violent precipice. This first argument concerns platforms’ effects on the public at large.

A second common line of argument, by contrast, makes no claim about the median social platform user. It instead focuses on the “radicaliz[ing]” effect of social media engagement on a small handful of users at the ideological margin.⁸ If even these few users resort to violence to advance their views, it might be said that social media has had a deadly effect.⁹ This is an argument not about social platforms’ effects on the mass of users, but upon the behavior of a small tail of participants in the online world.

Yet a third sort of argument against social platforms does not sound in a strictly consequentialist register. It does not lean, that is, on any empirical evidence as to how users are changed by their engagement. Rather, it is a moral argument that picks out objectionable features of the relationship between platforms and their users. This plainly asymmetrical arrangement, it is said, allows invidious manipulation, exploitation, or even a species of domination. Even if users’ behaviors do not change, these characteristics of the platform-user relationship are said to be insalubrious. Especially given the role that algorithmic design plays in shaping users’ online experiences, it is argued, a morally problematic imbalance emerges between ordinary people and the companies that manage social platforms. In the limited case, in which there are few potential sources of information and in which those sources are controlled and even manipulated by their owners (usually men of a certain age who are disdainful of civility and truthfulness norms), an acute concern about domination arises.

If one accepts one of these arguments (and I will try to offer both their best versions and to explore their weaknesses in what follows), then there is some reason to think closely about the way social platforms are governed, and to look for regulatory interventions. Such governance might be supplied by platforms’ own endogenous rules, which are usually embodied in their contractual terms of service or other internal procedures (such as mechanisms to dispute a take-down or deplatforming decision). Alternatively, governance could be supplied by exogenous legislation or regulation promulgated by a state. Private governance and legal regulation, of course, are potential substitutes. They can both be used to achieve the same policy goals. But how? What should such governance efforts, whether private or public, aspire to? And which policy levers are available to achieve it?

Where a platform employs algorithmic tools to shape users’ experience by determining what they see, the range of potential interventions will be especially large. This is a result of the complexity of common computational architectures today. There are many ways to craft the algorithms on which many platforms run.¹⁰ And there are many technical choices about which instruments to use, how to calibrate them, and what parameter (engagement? a subset of engagement?) to optimize. Many of these decision points offer opportunities for unavoidably normative choices about the purpose and intended effects of social platforms. Resolving those choices in turn requires some account of what it means exactly to talk about a normatively desirable social platform: That is, what should a social platform do? And for whom?

Such questions takes on greater weight given (1) recent regulatory moves by American states to control platforms’ content moderation decisions;¹¹ (2) a recent Supreme Court decision responding to those efforts;¹² and (3) the European Union’s Digital Services Act, a statute that takes yet a different and more indirect tack in modulating platform design and its ensuing costs.¹³ Or consider a 2025 U.S. Supreme Court decision, rendered on a tightly expedited schedule, to uphold federal legislation banning TikTok.¹⁴ The decision makes the remarkable suggestion that legislative control over social platforms—exercised by reshaping (or cutting off) the ordinary market from corporate control (for example, by forcing or by restricting a sale)—raises only weak First Amendment concerns. Applied broadly, such an exception from close constitutional scrutiny might allow broad state control over social platforms.

My main aim in this essay is to offer a new and fruitful analytic lens for thinking about these problems as questions of democratic institutional design. This is a way of approaching the problem of institutional design, not a set of prescriptions for how to do such design. I do so by pointing to a model of a desirable platform, and then asking how we can move toward that aspiration, and how much movement might be impeded or even thwarted. My aspirational model is not conjured out of the ether; rather, I take inspiration from an idea found in the scholarly literatures in political science and sociology that evaluates pathways of economic development. The idea upon which I draw is that development policy should aim to seed “islands of integrity” into patrimonial or nepotistic state structures as a way of building foundations for a more robust—and hence public-regarding—state apparatus.¹⁵ This literature focuses on the question of the state’s seeds and nurtures zones (or those of another interested party, such as a private foundation or an international organization) where public-regarding norms, not self-regarding or selfish motives, dominate as a means of generating public goods.

By analogy to the examples of effective public administration discussed in this literature, I will suggest here that we should think about public-regarding platforms as “islands of algorithmic integrity” that advance epistemic and deliberative public goods with due regard to the potential for either exploitation or manipulation inherent in the use of sophisticated computational tools. With that threshold understanding in mind, we should then focus on how to achieve that specific, affirmative model—and not simply on how to avoid narrowly-defined and specific platform-related

harms. An affirmative ideal, that is, provides a baseline against which potential reform proposals can be evaluated.¹⁶

To be very clear up front, this approach has limitations. It draws on the “island of integrity” literature here as a general source for inspiration, instead of a source for models that can be directly transposed. I do not think that there is any mechanical way of taking the lessons of development studies and applying them to the quite different virtual environment of social platforms. To the extent lessons emerge, they are at a high level of abstraction. Still, studies of islands of bureaucratic integrity in the wild can nevertheless offer a useful set of analogies: they point toward the possibility of parallel formations in the online world. They also help us see that there are already significant web-based entities that exemplify certain ideals of algorithmic integrity in practice because they hew to the general lessons falling out of the islands of integrity literature. These studies can illuminate how a more democratically fruitful digital public sphere might begin to be built given our present situation, even if they cannot offer a full blueprint of its ultimate design.

It is worth noting that my analytic approach here rests on an important and controversial assumption. That is, I help myself to the premise that reform of the digital public sphere can proceed first by the cultivation of small-scale sites of healthy democratic engagement and that these can be scaled up. But this assumption may not be feasible. It may instead be necessary to start with a “big bang”: a dramatic and comprehensive sweep of extant arrangements followed by a completely new architecture of digital space. If, for example, you thought that the problem of social platforms began and ended in their concentrated ownership in the hands of a few bad-spirited people, then the creation of new, more democratic platforms would not necessarily lead to a comprehensive solution. Given disagreement about the basic diagnosis of social platforms’ malady, it is hard to know which of these approaches is more sensible. Therefore, there is some value to exploring a piecemeal reform approach of the sort illuminated here. But that does not rule out the thought that a more robust “big bang” approach is in truth needed.

Part I of this essay begins with a brief survey of the main normative (consequentialist and deontic) critiques that are commonly lodged against social platforms, focusing on the three listed above. In Part II, I introduce the “islands of integrity” lens—briefly summarizing relevant sociological and political science literature—as a means to directly think about social platform reforms. My aim in so doing is to provide a litmus test for thinking about social platform reform in the round. With that lens in hand, Part III critically considers the regulatory strategies pursued by the American states and the European Union to date. I suggest some reasons to worry that these are unlikely to advance islands of algorithmic integrity. I close by reflecting on some alternative regulatory tactics that might move us quicker toward that goal.

I. The Case(s) Against Social Platforms

What is a social platform? Do such all platforms work in the same way and raise the same kind of normative objections? Or are objections to platforms better understood as training on a subset of cases or applications? This Part sets some groundwork for answering these questions by defining the object of my inquiries and by offering some technical details about different kinds of platforms. I then taxonomize the three different objections that are commonly lodged against social platforms as they currently operate.

A. Defining Social Platforms and Their Algorithms

A “platform” is “a discrete and dynamic arrangement defined by a particular combination of socio-technical and capitalist business practices.”¹⁷ A subset of platforms are understood by their users as distinctively “social” rather than “commercial” insofar they provide a space for interpersonal interaction, intercalated with other activities such as “reading political news, watching media events, and browsing fashion lines.”¹⁸ The leading “social platforms,” as I shall call them here, are Facebook, X, Instagram, and TikTok.¹⁹

Not all social platforms propagate content in the same way. There are two dominant kinds of system architecture. The first is the social network, where users see posts by other users who they follow (or subscribe to) as well as posts those users chose to amplify.²⁰ When Facebook and Twitter allowed users to reshare or retweet posts, they enabled the emergence of networks of this sort.²¹ Here, what one sees depends on who one “knows.” Interconnected webs of users on a network can experience “information cascades” as information flows rapidly across the system.²² This is known colloquially as “going viral.” The possibility of virality depends not just on platform design but also on users’ behaviors. But, in practice a very small number of posts go viral on social networks.²³ Attention is a scarce commodity. We cannot and do not absorb most of what’s posted online. Our inability to absorb much means that it is only possible for a few items to achieve virality.

The second possible architecture is centered around an algorithm (or, more accurately, algorithms). On platforms of this sort, the stream of data observed by a user is largely shaped by a suite of complex algorithms, which are computational decisional tools that proceed through a series of steps to solve a problem. These algorithms, in the aggregate, are designed with certain goals in mind, such as maximizing the time users spend on the platform.²⁴ TikTok’s “For You Page,” Google Discover, and YouTube all rely at least in part on algorithms.²⁵

In practice, what is for the sake of simplicity called “the algorithm” can be disaggregated into several different design elements, each of which is in truth a distinct algorithm or digital artifact. These include (1) the “surfaces of exposure” (that is, the visual interface encountered by users); (2) a primary ranking model (often a two-stage recommender system that combs through and filters potential posts); (3) peripheral models, which rank content that appears around the main surface of exposure (for example, ads); and (4) auxiliary models (for example, content moderation for illegal materials or posts that violate terms of service).²⁶ For the sake of simplicity, I will refer to them together only as “the algorithm,” but it is worth keeping in mind that this is a simplification, and in fact there are multiple instruments at stake.

Algorithm design implicates many choices. At the top level, for example, an algorithmic model can be braided into a network model or integrated into a subscription-service model.²⁷ At a more granular level, algorithms can be designed to optimize a broad range of varied parameters. These range from “meaningful social interactions” (Facebook’s measure at one point in time) to user’s watch time (YouTube’s measure) to a combination of liking, commenting, and watching frequencies (TikTok’s measure).²⁸ The choice of parameter to optimize is important. Most common parameters quantify some element of users’ engagement with the platform, but they do so in different ways. Engagement measures are relevant from the platforms’ perspectives given their economic reliance on the revenue from advertising displayed to users.²⁹ In theory, more engagement means more advertising revenue. But engagement on social platforms is surprisingly sparse. Somewhere between only one percent and five percent of posts on most social platforms generate any engagement at all.³⁰ And the movement from engagement to advertising is rarer still: most targeted online advertising is simply “ignored.”³¹

B. Consequentialist Critiques of Social Platforms

There are, as I read the literature, three clusters of normative concerns raised by social platforms that merit consideration as the most important and common criticisms made of those technologies.³² Two are consequentialist, in the sense of training on allegedly undesirable effects of social platforms. Of course, such arguments need some means of evaluating downstream effects as either desirable or undesirable. In practice, they rest on some account of democracy as an attractive—even ideal—political order. (Note that as is often the case in legal scholarship, the precise kind of “democracy” at work in these critiques is not always fully specified. This lack of specification is a gap that will prove relevant in the analysis that follows.)³³ The other cluster is deontic, in the sense of picking out intrinsically unattractive qualities of social platforms. These accounts do not rely on a causal claim about the effects of social platforms; they instead assert the prima facie unacceptability of platforms in themselves.

Let’s begin with the two consequentialist arguments and then move on to the deontic critique.

A first view widely held in both the academic and non-academic public spheres is that social platforms cause political dysfunction in a democracy because of their effects on the dispositions and beliefs of the general public.³⁴ Using social platforms, this argument goes, drives (1) a dynamic of “affective polarization” (negative emotional attitudes towards members of opposition parties), or (2) traps us in “echo chambers” or filter bubbles that are characterized by limited, biased information.³⁵ Social media users are also said to be exposed to “fake news,” which are “fabricated information that mimics news media content in form but not in organizational process or intent.”³⁶ High levels of exposure are said to be driven by algorithmic amplification.³⁷ Recent advances in deep-fake-creation tools have further spurred worries about an “information apocalypse” that destroys “public trust in information and the media.”³⁸ Platforms, in this view, foster a world in which citizens lack a shared reservoir of mutual tolerance and factual beliefs about the world. Such deficiencies are said to render meaningful political debate on social platforms challenging—perhaps even impossible. As a result of these changes in peoples’ dispositions, the possibility of democratic life moves out of reach.

These arguments hence assume that democratic life requires the prevalence of certain attitudes and beliefs in order to be durably sustained (an assumption that may or may not be empirically justified). Another way in which these concerns can concretely be understood is to view them in light of the rise of anti-system parties,³⁹ which are characterized by their limited regard for democratic norms. Platforms might facilitate the growth of such anti-system candidates who disrupt or even undermine democratic norms such as broad trust in the state and in co-citizens. Through this indirect path, platforms have a detrimental effect on democracy’s prospects.

There are surprisingly few empirical studies that support the existence of a robust causal connection between social platforms and democratically necessary trust.⁴⁰ Yet some evidence for it can be found in the behaviors and beliefs of significant political actors. President Donald Trump, for example, declared in November 2016 that Facebook and Twitter had “helped him win” the 2016 U.S. presidential election.⁴¹ Since 2020, conservative donors such as the Bradley Impact Fund and the Conservative Partnership Fund have contributed millions to Republican-aligned groups combating effects to “take a tougher line against misinformation online.”⁴² Such significant financial investments by important political actors, beyond merely cheap talk, suggest that social platforms do have predictable partisan effects for candidates and parties that have an arguable anti-systemic orientation.⁴³

On the other hand, well-designed empirical studies have cast doubt on the negative, large-“N” effects of social platforms.⁴⁴ Four studies are illustrative. A first well-designed randomized experiment, which tested the effect of platform deactivation for several weeks before the 2020 election, found no statistically significant effects of platform exposure on affective polarization, issue polarization, or vote choice.⁴⁵ A second random experiment focused on the difference between Facebook’s default algorithms and a reverse-chronological feed. Again, the study found no effect on affective polarization, issue polarization, or political knowledge after switching from a network-driven feed to an algorithmically-driven feed, even though the use of a reverse chronological feed increased the amount of “untrustworthy” content seen.⁴⁶ This null finding from a study of opting into algorithmic content propagation has been replicated in a separate study of YouTube.⁴⁷

Finally, an empirical inquiry into exposure to fake news found only a very small positive effect on the vote share of populist candidates in European elections.⁴⁸ Another study of 1,500 users in each of three countries (France, the United Kingdom, and the United States) identified no correlation between social platform use and more extreme right-wing views; indeed, in the United States, they found a negative correlation.⁴⁹ The authors concluded that their “findings tend to exonerate the Internet generally and social media in particular, at least with respect to right-wing populism.”⁵⁰ Finally, a 2017 study found that President Trump erred when he claimed that Twitter and X helped him in the 2016 election; again, that study found a negative correlation between more extreme right-wing views and social platform usage.⁵¹

Summarizing the available research (including these studies) in a June 2024 issue of Nature, a team of respected scholars concluded that “exposure to misinformation is low as a percentage of people’s information diets” and further “the existence of large algorithmic effects on people’s information diets and attitudes has not yet been established.”⁵² The Nature team warned that the extent to which social platforms undermine political knowledge depends on the availability of other news sources. Where countries “lack reliable mainstream news outlets,” their negative knowledge-related spillovers may be greater.⁵³ I do not pursue that suggestion here, since it invites a bifurcated analysis that separately considers different national jurisdictions, depending on the robustness of their non-digital media ecosystems. What follows should be taken as parochially relevant to North American and European democracies (at least for now) but not the larger world beyond that.

A second view of social platforms’ harms identifies not its spillovers at scale, but rather its effects on certain narrow slices of the population—in particular, those at the tails of the ideological distribution. The intuition here is that engagement with social platforms may not change the dispositions or beliefs of most people, but there is a small subset of individuals who adopt dramatically divergent beliefs (and even behaviors) as consequences of their platform use. “Tail effects” of this sort may not be significant for democratic life under some circumstances, but of particular relevance, there is some evidence of increased support for political violence among Americans.⁵⁴ Extremism at the tails in this context and about this sentiment may have profound consequences. At a moment when President Trump has (twice) faced near-assassination during the 2024 presidential election cycle, and considering how his supporters previously precipitated a deadly confrontation at a 2021 Joint Session of Congress meant to count Electoral College votes, it seems prudent to reckon with the risk that radicalized individuals—even if few in number—may be able to inflict disproportionate harms on institutions that are necessary for core democratic political processes.

This more narrowly gauged claim stands on firmer empirical ground than the critiques of social platforms’ large-“N” effects discussed above. A 2024 study of fake news’ circulation on Twitter found that 0.3 percent of users account for four-fifths of its fake news volume.⁵⁵ These “supersharers,” who tended to be older, female, and Republican, in turn reached a “sizable 5.2% of registered voters on the platform.”⁵⁶ Note that this is not necessarily the population one would expect to engage in political violence. A different study published around the same time also found “asymmetric . . . political news segregation” with “far more homogenously conservative domains and URLs circulating on Facebook” and “a far larger share” of fake news on the political right.⁵⁷

Such findings are consistent with wider-angle studies of partisan polarization, which find different microfoundations on the political left and right.⁵⁸ The Nature team mentioned above hence concluded that exposure to misinformation is “concentrated among a small minority.”⁵⁹ Those who consume false or otherwise potentially harmful content are already attuned to such information and actively seek such content out.⁶⁰ Platforms, however, do not release “tail exposure metrics” that could help quantify the risk of harm from such online interactions.⁶¹ As a result, it is hard to know how serious the problem may be.

What of the concern that social platforms conduce to “filter bubbles” that constrain the range of information sources users can access in problematic ways?⁶² Once again, the evidence is at best inconclusive. A 2016 study found that social homogeneity of users predicted the emergence of echo chambers characterized by asymmetrical patterns of news sharing.⁶³ At the same time, the study offered no empirical evidence about the extent or effects of filter bubbles “in the wild,” so to speak. A 2021 review identified divergent results in studies surveying human users of social platforms or digital trace data; yet, it identified only a handful of studies substantiating the concern.⁶⁴ A 2022 meta-study found that “most people have relatively diverse media diets,” and only “small minorities, often only a few percent, exclusively get news from partisan sources.”⁶⁵ Again, the empirical foundations of the normative worry here seem shaky.

Even if the evidence of filter bubbles existing was more robust, filter bubbles’ substantiated existence would not necessarily be cause for concern. Concern about filter bubbles focuses on the asymmetric character of the information voters consume; this then assumes that there is a counterfactual condition under which the voter might receive a “balanced” diet of information. But what does it mean to say that a person’s news inputs are balanced or symmetrical? Does it require equal shares of data that support Republican and Democratic talking points? What if one of those parties is more likely than the other to lean on false empirical claims? Should a balanced informational diet reflect or discount for such a lean? How are the problems of misinformation or distorted information to be addressed? Is it part of a balanced informational diet to receive a certain amount of “fake news”? These questions admit of no easy answers. Rather, they suggest that the concern with filter bubbles trades on a notion of balance that is hard to cash out in practice without difficult anterior ideological and political choices.

In brief, the available empirics suggest that consequentialist critiques of social platforms are better focused on tail effects instead of the way platform engagement changes the median user or the mass of users. It is also worth underscoring a point that is somewhat obscured by the bottom-line results of these studies but implicit in what I have just set out. That is, the tail effects of social platforms arise from a complex and unpredictable mesh of interactions between technical design decisions and users’ decisions. The external political environment hence shapes platforms’ spillover effects, and when that environment is more polarized and more prone to panics or even violence, it seems likely that the tail risks of social platforms would correspondingly rise. When, by contrast, there are a plethora of reliable non-digital sources which are accurate and easily accessible, the threat to democratic life from social platforms may well be far less acute.

C. Deontic Critiques of Social Platforms

Critiques of social platforms do not need to rest on evidence of their consequences. It is also possible to pick out features of the relationship between platforms and users as morally problematic even in the absence of any harm arising. Two particular strands of such “deontic” critique can be traced in existing literature.

First, social platforms (among other entities) gather data about their users and then use that data to target advertisements to those same users. For many, this circular pattern of data extraction and deployment constitutes a morally problematic exploitation. Such exploitation occurs when “one party to an ostensibly voluntary agreement intentionally takes advantage of a relevant and significant asymmetry of knowledge, power, or resources” to offer otherwise unacceptable contracting terms.⁶⁶

Shoshana Zuboff, who is perhaps the leading expositor of this view, argues that platforms have “scraped, torn, and taken for another century’s market project” the very stuff of “human nature.”⁶⁷ She condemns the “rendition” and “dispossession of human experience” through “datafication.”⁶⁸ Zuboff’s critique of platform exploitation is nested in a broader set of concerns about the presently hegemonic form of “informational” or “financial” capitalism. Reviewing Zuboff’s book, Amy Kapczynski thus asserts that “informational capitalism brings a threat not merely to our individual subjectivities but to our ability to self-govern.”⁶⁹ Similarly, danah boyd characterizes private firms’ use of digital power as a malign manifestation of “late-stage capitalism . . . driven by financialization.”⁷⁰ And as Katharina Pistor puts it, “[t]he real threat that emanates from Big Tech using big data is not just market dominance . . . [but] the power to transform free contracting and markets into a controlled space that gives a huge advantage to sellers over buyers.”⁷¹ The structure of financial or quasi-financial transactions on social platforms, in this view, conduces systemically to users’ exploitation.

In an earlier piece, I have expressed sharp skepticism elsewhere about the empirical and normative arguments offered by Zuboff and Kapczynski.⁷² Their concerns about exploitation seem to trade on imprecise and potentially misleading analogies to more familiar and normatively troubling forms of economic exploitation, despite meaningful differences in structure and immediate effect. Indeed, both analogies fail to take those differences seriously. More generally, their arguments borrow a suite of concerns associated with the larger structures of economic life labeled “neoliberalism,” which have developed since the 1970s. Such critiques of neoliberalism, however, concern aspects of economic life that have little to do with social platforms (for example, deregulation and financialization). One can have neoliberalism with or without social platforms. I see little analytic gain in combining these very different lines of argument respecting quite distinct targets, and I see no reason to invite confusion by mushing together distinct phenomena to achieve guilt-by-association more generally.

Second, concern about exploitation overlaps with a distinct worry about non-domination. Claire Benn and Seth Lazar capture this possibility in their argument that social platforms might compromise an intrinsic, non-instrumental “value of living in societies that are free and equal.”⁷³ They argue that the public is necessarily ignorant about the “tech companies’ control of the means of prediction” and so have “no viable way of legitimating these new power relations.”⁷⁴ But the empirical premise of this argument—widespread public ignorance about predictive tools—seems shaky: As the empirical studies of fake news and political distortion show, there is publicly available knowledge about many salient effects of social platforms. To the extent that the public misconstrues those effects, Benn and Lazar’s argument likely overestimates their magnitude.⁷⁵ I hardly think these critiques are secret.

Still, I think Benn and Lazar are on to something useful when they identify the fact of corporate control as a morally salient one. Social platforms stand in an asymmetrical relation to the general public because of (1) knowledge asymmetries enabled by the corporate form; (2) collective action problems implicit in the one-to-many relation of firms to consumers; and (3) ideological effects (for example, false beliefs in the necessity of unregulated digital markets for economic growth). As a consequence of these dynamics, social platforms exercise a certain kind of unilateral power over the public. Such power might be especially worrying if it is concentrated in the hands of a limited number of people—and if these people have close connections to those in high state office (with the Musk/Trump relationship offering an obvious, highly salient example). This slate of worries comes sharply into play whenever platforms comprise an important part of the democratic public sphere. Under these conditions, Benn and Lazar point out that platforms ought not to merely prevent negative consequences for democratic politics; they must also ensure “that content promotion is regulated by epistemic ideals.”⁷⁶ This entails, in their view, a measure of “epistemic paternalism.”⁷⁷ It rests on platforms’ unilateral, and effectively unconstrained, judgments about interface and algorithmic design.

This deontic argument can also be stated in the terms of Philip Pettit’s influential theory of republican freedom. On Pettit’s account, an individual wields dominating power over another if the former has the capacity to interfere in certain choices of the latter on an arbitrary basis.⁷⁸ Pettit asserts that this arbitrariness condition is satisfied if an agent’s actions are subject only to the arbitrium—the will or judgment—of the agent, and when the interfering agent is not “forced to track the interests and ideas of the person suffering the interference.”⁷⁹ For example, a person ranked by law as a slave is just as unfree even if their master always acts with their interests in mind. Even when an arbitrary legal relationship is exercised in a beneficent fashion with the interest of the weaker party in mind, Pettit suggests that there is a displacement of the subject’s “involvement, leaving [them] subject to relatively predictable and perhaps even beneficial forms of power that nevertheless ‘stifle’ and ‘stultify.’ ”⁸⁰

Yasmin Dawood has fruitfully deployed Pettit’s framework for thinking about the abuse of public power in democratic contexts.⁸¹ Her conceptual framing, moreover, could be extended to private actors such as social platforms without too much difficulty. For instance, one might view the exercise of extensive control over the informational environment online as a species of domination, whether or not it was exercised in a malign or a paternalistic direction. That idea might be rendered more precise by drawing on work by Moritz Hardt, Meena Jagadeesan, and Celestine Mendler-Dünner that defines the “performative power” of an algorithmic instrument in terms of “how much participants change in response to actions by the platform, such as updating a predictive model” as a numerical parameter.⁸² This concept of “performative power” usefully captures the way that platforms “steer” populations.⁸³ As such, it offers a way of understanding and measuring “domination” in social platforms more precisely.

In setting out these two kinds of deontic critiques of social platforms, I thus suggest that there are plausible grounds for worry about social platforms, even absent robust empirical findings of spillovers onto users’ beliefs and dispositions. I recognize that both the exploitation and the domination critiques rest on further moral premises, which I have neither spelled out in full nor tried to substantiate. But I spell out both deontic arguments here to show readers the minimally plausible non-consequentialist grounds for concern about the structure and operation of social platforms and to allow readers to make their own judgments.

D. Making a Better Case Against Social Platforms

Social platforms have become scapegoats of sorts for many of the ills that democratic polities are now experiencing. But the available evidence suggests that many of these critiques miss the mark. For many people, platforms simply do not play a very large or dominant epistemic role (although this may well change in the near future). They also seem not to have the polarizing and epistemically distorting effects many bemoan.

That is not to say, however, that there is no reason for concern. Consequentialist worries about the behavior of users on the tails of the ideological distribution, as well as deontic worries about exploitation or domination, point toward the need for reforming measures. Of course, these arguments might not all point in the same direction in terms of practical change. But reforms that render platforms more responsive and responsible to epistemically grounded truths and the interests of all their users (as well as interests of the general public at large) are plausibly understood to respond to all the salient critiques discussed above.

II. Islands of Integrity—Real and Digital Examples

One way of thinking about how existing social platforms might be reformed is to identify an aspirational end-state, or a model, of how they might ideally work. With an understanding of the best version of a social platform in view, it may be easier to evaluate extant reform strategies and to propose new ones. This inquiry might proceed at the retail level—focusing on what an “ideal” or a “better” platform might look like—or at a general level—asking how the digital ecosystem overall should be designed. With the first of these paths in mind, I introduce in this Part a conceptual framework for thinking about “islands of integrity” developed in the sociological and political science studies of development. While that literature has not yielded any simple or single formula for reaching that aspiration, it still offers a useful lens for starting to think about well-functioning social platforms. Or so I hope to show in what follows.

A. Building Islands of Integrity in the Real World

In recent decades, concern about the legality and the quality of governance has shaped the agenda of international development bodies such as the World Bank.⁸⁴ One of the strategies identified to enhance the quality of public administration centers the idea of “islands of integrity” or “pockets of effectiveness” in sociopolitical environments that are “otherwise dominated by patrimonialism, corruption, and bureaucratic dysfunction.”⁸⁵ An island of integrity has been defined as an entity or unit (generally of government) that is “reasonably effective in carrying out [its] functions and in serving some conception of the public good, despite operating in an environment in which most agencies are ineffective and subject to serious predation . . . .”⁸⁶ The normative intuition is that it is possible to seed islands of integrity, despite pervasive corruption, as a starting point for more large-scale reforms.

There are by now a wide variety of case studies on islands of integrity. Monica Prasad, for example, points to the recently stood-up Indian Institutes of Technology (“IITs”), an archipelago of meritocratic technology-focused colleges across the subcontinent, as an instance where an educational mission is successfully pursued against “a context of patrimonialism and corruption.”⁸⁷ IITs’ mission is preserved and protected from distortion through the use of selection strategies of “meritocratic decoupling” that sort both students and teachers based on academic merit, alongside efforts to show how the institution benefited those who were excluded.⁸⁸

In a different case study, Eliška Drápalová and Fabrizio Di Mascio identify a pair of municipalities in Spain as “islands of integrity.”⁸⁹ They contend that the key move in creating them was the fashioning of a “fiduciary relationship between mayors and city managers,” which allowed for the development of a bureaucratic structure shaped by professional (rather than patrimonial) norms.⁹⁰ City managers, they find, offer “accountability and responsiveness” to elected leaders without compromising the integrity of service-oriented institutions.⁹¹ Similarly, Michael Roll maps the emergence in Nigeria of well-run agencies managing food and drug regulation on the one hand, and human trafficking on the other, to demonstrate that islands of integrity can emerge even under very difficult circumstances given the right leadership.⁹²

Most, but not all, of these case studies on islands of integrity concern real-world public administration, often at a local level.⁹³ The generalizations drawn by the literature are concededly fragile: The heterogeneity of cultural, political, and institutional context makes inference instable, at least at a useful level of granularity.⁹⁴ Still, a couple of regularities do tentatively emerge from a review of the available case studies in the development literature.

Crudely stated, the “islands of integrity” literature underscores the importance of institutional means and leadership motives for resisting patrimonial or corrupt political cultures. First, an island of integrity needs to internalize control over its own workings in order to “create a culture of meritocracy and commitment to the organization’s mission.”⁹⁵ Underpinning this culture, it seems, must be a clear understanding of the public goods that the agency or body is supposed to produce. The truism that leadership is key seems to hold particularly strongly.⁹⁶ Autonomy over personnel choice is also crucial in order to maintain that culture.⁹⁷

Second, there is a consistent institutional need for the creation of tools to resist demands from powerful external actors who try to capture a body for their immediate political or economic gains, which are unrelated to the public-regarding goals of the institution.⁹⁸ Tools by which to mitigate such threats to institutional autonomy vary. Indian universities, Prasad found, tout the local jobs they create in cleaning and maintenance—even as they maintain the separation of student and faculty selection from local pressures—as a way of deflecting local politicos.⁹⁹ Spanish city managers, Drápalová and Di Mascio explain, promise improvements in top-line municipal services to mayors who threaten their autonomy.¹⁰⁰ In effect, reform is purchased in both cases by strategic payoffs to those who threaten its progress.

Just as it is important to work out how to build public-regarding institutional spaces in the real world, so too is it important to identify how to create such spaces in the virtual, digitally mediated world. Just as the bodies in India, Spain, and Nigeria need to have motive and means to keep the corroding forces of public sphere at bay, so too does a social platform that strives to be an island of integrity need leadership, internal culture, and means to create a non-exploitative, non-dominating structure while managing tail risk better than existing platforms. Taken as metaphor, therefore, “islands of integrity” offer a template for the desirable end goal of social platform reform as well as some modest clues about how to get there. Still, it is important not to make too much of this metaphor. The claim that the “islands of integrity” literature can be an inspiration for social platform reform is, at bottom, an argument from analogy, and one that needs to be tested carefully through the application of that analogy.

B. Digital Islands of Integrity: Two Examples

The aforementioned analogy gains force when one realizes that there are already examples of digital islands of integrity online. The two most prominent examples are Wikipedia and the British Broadcasting Company (“BBC”). To be clear, neither is a quintessential social platform as I have used that term here. Nor do they operate at the same scale as X or Instagram. But I offer a brief discussion of both by way of proof of concept.

Wikipedia emerged from the wreckage of an attempted for-profit online encyclopedia called Nupedia.¹⁰¹ The latter’s assets (for example, domain names, copyrights, and servers) were subsequently placed in an independent, charitable organization, the Wikimedia Foundation (“WMF”).¹⁰² At first, corporate governance “emerged” organically from the efforts of those building the site, rather than being imposed from above.¹⁰³ A group of founders then “transformed their charismatic community into a bureaucratic structure” in which “power was diffused and distributed” across “a sprawling bureaucracy with a wide range of formal positions” in response to the perceived mission-related needs of the organization.¹⁰⁴ The organization’s trajectory has also been characterized by moments of greater centralization. For example, in the early 2010s, Wikipedia’s CEO led an effort to be “more inclusive and more open,” somewhat to the chagrin of the then-contributors.¹⁰⁵ That is, Wikipedia’s governance history centers on a choice of corporate form that insulates leadership from external profit-related pressures, a selection of strong leadership, and an exercise of leadership to broaden and empower the organization’s constituencies (potentially mitigating criticism of the organization) to generate a certain kind of “corporate culture.”¹⁰⁶

Even more directly relevant is the web presence of the BBC. The BBC produces thousands of new pieces of content each day for dissemination over a range of sites, such as BBC News, BBC Sport, BBC Sounds, BBC iPlayer, and World Service.¹⁰⁷ The corporation’s charter defines its mission as serving all audiences by providing “impartial, high-quality and distinctive output and services which inform, educate and entertain.”¹⁰⁸ Like Wikipedia, the BBC is organized into a corporate form that is relatively impermeable by law to commercial pressures. To advance its charter goals, the BBC uses machine-learning recommender algorithms created by multi-disciplinary teams of data scientists, editors, and product managers.¹⁰⁹ Once a recommender system has been built,¹¹⁰ editorial staff can offer “continuous feedback” on the design and operation of recommendatory systems to identify legal compliance questions and to ensure “BBC values” are advanced.¹¹¹

Available accounts of this process—while perhaps a touch self-serving because they are written by insiders—suggest that the organization strives to cultivate a distinctive cultural identity. It then leverages that identity as a means of advancing its values via algorithmic design. Specifically, an important part of this recommender design process focuses on empowering users to make their own choices and to avoid undesirable (from the service’s perspective) behaviors. The BBC’s recommender tools are designed to permit personalization, albeit only to the extent that doing so can “coexist with the BBC’s mission and public service purposes.”¹¹² An insider informant speaking anonymously reported that the BBC understands itself as “as ‘morally obliged’ to provide their users with the possibility of tweaking their recommendations.”¹¹³ In the same study, the employee of an unnamed European public broadcaster that managed a recommender system reported that their system proactively identified “users who consume narrow and one-sided media content and recommend[ed to] them more diverse content.”¹¹⁴ That is, the system was designed to anticipate and mitigate, to an extent, the possibility of extremism at the tails of the user distribution, while also preserving users’ influence over the content of their feeds. This is in stark contrast to systems that are designed to maximize engagement under conditions in which predictability entails driving users to more extreme (and even dangerous) content.

I do not want to strain the parallels between the “islands of integrity” literature and these digital examples too much. Both of the latter, nevertheless, point to ways in which the means and the motives to sustain an “island of integrity” can be imagined in an online world. Both services are, for example, explicitly oriented toward a public service mission in terms of leadership. They both also opted for corporate forms that allow for some protection against potentially compromising market forces. Both have systems in place to preserve and transit a valued internal culture, while buffering themselves somewhat against the risks of distorting external or internal pressure. Finally, both seem to have successfully cultivated persisting cultures of service to public-service goals by hard-wiring their cultures into bureaucratic structures or, alternatively, algorithmic designs.

III. The Governance of Social Platforms: Aspiring to Build Islands of Algorithmic Integrity

With the general idea of “islands of integrity” in hand, along with the specific proofs of concept described in Section II.B, it is possible to ask how certain social platforms might be reformed with an ideal of islands of algorithmic integrity in mind. That is, how might we move toward alternative platform designs and operations that address the normative concerns outlined in Part II? What kind of private governance might be imagined that mitigates exploitation and domination concerns, while addressing the tail risk of extremism as best as we can? Could legal regulation play a role? Again, it would be a mistake to frame these questions as mechanical applications of the “islands of integrity” literature. It is better to think of them as falling out of the same institutional design goal.

I approach this inquiry in two stages. I first begin by critiquing leading regulatory strategies observed in the American states and the European Union from an “islands-of-algorithmic-integrity” standpoint. At bottom, these critiques draw out ways in which those regulatory strategies take social platforms as potential sources of harm, largely without an account of the positive role platforms could play. Second, I draw together a number of possible tactics for public or private actors to help build islands of algorithmic integrity. My positive accounting here is concededly incomplete. My hope, however, is that this effort serves as initial evidence of the fruitfulness of an approach oriented toward the aspiration of islands of algorithmic integrity.

A. The Limits of Existing Platform Regulation Regimes

Since 2020, social platforms have become an object of regulatory attention on both sides of the Atlantic. Three main regulatory strategies can be observed. These take the form of new state regulations purportedly targeting “censorship,”¹¹⁵ fresh efforts to extend common law tort liabilities to social platforms, and a risk-based regulatory regime that has been promulgated by the European Union. Broadly speaking, all such legal intervention is premised on concern about platforms’ society-wide effects on listeners, although deontic concerns may play a role too. The tools seized for those tasks, however, have been inadequate. Their shortfall can be traced to the way in which they focus exclusively on platform harms (missing the importance of benefits), misconstrue those harms, and then fail to incentivize the formation of platforms with the means and the motive to mitigate documented harms while resisting exploitation or domination.

Regulating Ex Ante for Harms

The 2022 Digital Services Act (“DSA”) offers a first model of ex ante platform regulation. In important part, it trains on the potential for harms by recommender systems without any account of their positive effects. It contains a suite of new legal obligations: Article 25, for example, prohibits any digital platform design that “deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions.”¹¹⁶ Article 38 provides a right to opt out of non-personalized algorithms.¹¹⁷ Articles 14 and 26 set out some disclosure obligations on certain companies.¹¹⁸ Most importantly, for present purposes, Article 34 of the DSA requires “very large online platforms and . . . online search engines” to conduct an annual assessment of any systemic risks stemming from the design or functioning of their service, including negative effects on civic discourse, electoral processes, or fundamental rights.¹¹⁹

At first blush, the DSA seems oriented toward the creation of islands of algorithmic integrity. But there are reasons for being skeptical of conceptualizing the project this way. To begin with, the Article 38 opt-out is unlikely to be exercised by those “supersharers” at the tails of the ideological distribution who are most responsible for the diffusion of fake news.¹²⁰ Self-help remedies never avail those already fixated on harming themselves and others. Moreover, Article 34 risk assessments impose no clear affirmative command to build epistemically robust speech environments.¹²¹ In effect, the act offers no clear account of how social platforms could or should enable democratic life. Even more problematic, the DSA ultimately leans on platforms themselves to accurately document and remedy their own flaws. It does not seem excessively cynical to predict that profit-oriented companies will not be falling over themselves to flag the negative externalities of their own products in publicly available documents and flagellate themselves over how to remedy them. The DSA, in short, is promising as theory. But it may fall substantially short in practice.

Regulating Ex Ante for Balance

Both Florida and Texas have enacted statutes intended to limit platforms’ abilities to “deplatform” a person because of their violation of terms of service.¹²² The Florida statute, for example, prohibits platforms from “willfully deplatform[ing] a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate.”¹²³ In its July 2024 decision in Moody v. NetChoice, the U.S. Supreme Court cast doubt on the constitutionality of such measures.¹²⁴ While litigation is ongoing as this essay goes to press, it seems likely that the deplatforming elements of both statutes will not survive.

Relying on familiar doctrinal tools from the First Amendment toolkit, a majority of the Moody Court reached two conclusions that are relevant here. First, Justice Elena Kagan’s majority opinion explained that when an entity “provide[s] a forum for someone else’s views” and is thereby “engaged in its own expressive activity, which the mandated access would alter or disrupt,” a First Amendment interest is implicated.¹²⁵ Second, the Court held that the government has no constitutionally cognizable interest “in improving, or better balancing, the marketplace of ideas.”¹²⁶ This anti-distortion argument is familiar from the campaign finance context.¹²⁷ There, however, the argument is deployed generally by conservative justices to resist governmental efforts to advance an equality interest in political speech given its “dangerous[] and unacceptable” effects.¹²⁸ In the Florida and Texas cases, by contrast, the argument was listed against efforts by Republican state governments to enforce their understanding of balance on the platform-based speech. Such ideological valence thus flipped from campaign finance to platform regulation.

Independent of these familiar constitutional logics, there are more empirically grounded reasons to conclude that Florida’s and Texas’s efforts to mitigate platforms’ curatorial capacity are likely to undermine, rather than promote, the emergence of islands of algorithmic integrity. These reasons run parallel to Justice Kagan’s reasoning, but are distinctive in character.

The first reason is banal and empirical. The available research suggests that conservative voices in the United States are asymmetrically responsible for the dissemination of fake news.¹²⁹ To the extent that Florida and Texas leaned on a conception of “balance” in the speech environment, they did so by culpably ignoring the platforms’ interest in a generally reliable and trustworthy news environment. Enforcement of the Florida and Texas laws, to the contrary, seems likely to lead (all else being equal) to a decline in the quality of those platforms. That is to say, by a sort of Gresham’s law for political speech, the increasing proportion of misleading speech on a platform will tend to drive out those concerned with truthfulness. Such an effect creates a vicious circle of sorts, one that is absent from the campaign finance context.

This argument might be supplemented by a further observation. As I show below, there are a number of fairly obvious affirmative measures that private and public actors can take if they are truly concerned with the creation of islands of algorithmic integrity.¹³⁰ If we see a government failing to take these needful steps while affirmatively adopting counterproductive measures, there is some reason to doubt the integrity of its claim to be acting in the public interest. The islands of algorithmic integrity frame can be put to work here as a lens through which one may understand the gap between a state’s professed interests and its actual ambitions.¹³¹ If, as Justice Kagan once suggested in her academic role, the First Amendment doctrine is best understood as “a series of tools to flush out illicit motives and to invalidate actions infected with them” and a “kind of motive-hunting,”¹³² then the failure to pick low-hanging fruit while making elaborated and far-fetched claims about one’s integrity-related aims is a telling one. To the extent that it identifies some of those low-hanging fruit, the islands of algorithmic integrity grafts on comfortably to advance those goals.

A second reason to be skeptical of measures such as Florida’s and Texas’s is conceptual in character: balance-promoting measures of their ilk help themselves to the assumption that there is a neutral baseline that has been disturbed by a platform’s algorithm. But “the most common choice of baseline fundamentally depends on the state of some components of the system,” and assumes away the effect of past bias and amplification.¹³³ Accordingly, the Florida and Texas laws’ presupposition of a neutral baseline of undistorted speech is misplaced; it is better to instead focus on the structural qualities associated with islands of integrity. Where a government asserts an interest in “neutrality” or “fairness” in the context of social platforms, its arguments should be viewed as pro tanto dubious since it is striving to return to a status quo that, for technological reasons, is imaginary. A version of this baseline difficulty arises in the campaign finance context, albeit for different reasons.¹³⁴ It also lacks the sociotechnical foundation that is present in the platform context.

Tort Liability for Harmful Algorithmic Design

The Texas and Florida statutes impose ex ante controls on social platforms. An alternative regulatory strategy when it comes to platforms involves the ex poste use of tort liability to incentivize “better” (by some metric) behavior. Platforms benefit from a form of intermediate immunity from tort liability under Section 230 of the Communications Decency Act.¹³⁵ Section 230 immunity is likely wider than the immunity from liability available under the First Amendment,¹³⁶ although the scope of constitutionally permissible tort liability remains incompletely defined.¹³⁷

Recent lawsuits have tried to pierce Section 230 immunity from various angles. Some have tried to exploit federal statutory liability for aiding and abetting political violence.¹³⁸ Others lean on common law tort theories, but contend that Section 230 does not extend to suits that turn on platforms’ use of algorithmic controls to sequence and filter content. For example, in an August 2024 decision, a panel of the Third Circuit reversed a district court’s dismissal of a common law tort complaint against TikTok for its promotion of content that played a role in the death of a minor.¹³⁹ The circuit court held that Section 230 did not extend to a claim that TikTok’s “algorithm was defectively designed because it ‘recommended’ and ‘promoted’ the Blackout Challenge.”¹⁴⁰ The Blackout Challenge, said the panel, was “TikTok’s own expressive activity,” and as such fell outside Section 230’s scope.¹⁴¹ This construction of Section 230 has been severely criticized.¹⁴² Thus, it is far from clear how this ruling can be squared with the seemingly unambiguous Section 230 command that no platform can “be treated as the publisher or speaker of any information provided by another information content provider.”¹⁴³

Reflection on the prospect of tort liability that is delimited in this fashion and consistent with Section 230 (especially with the idea of “islands of algorithmic integrity” in mind) offers some further reasons for skepticism of the Third Circuit’s decision and the consequences of tort liability for algorithmic design more generally. For it is far from clear how algorithmic-design-based liability of the sort that the Third Circuit embraced can be cabined. Every algorithmic decision changes the overall mix of content on the platform. So, it is always the case that such decisions in some sense “cause” the appearance of objectionable content.¹⁴⁴ Indeed, one could argue that any mechanism imposed to limit one sort of harmful speech necessarily increases the likelihood that other sorts of speech (including other sorts of harmful speech) will feature prominently on the platform. For example, a decision to filter out speech endorsing political violence is (all else being equal) going to increase the volume of speech that is likely conducive to adolescent mental health problems. In this way, the Third Circuit’s decision (at least as written) has the practical effect of carving out all algorithmic content-moderation activity from Section 230’s scope. It is hard to imagine this concurs with Congress’s enacting intent.

Indeed, tort liability for algorithmic decision will inevitably push platforms to rely more on networks, rather than algorithms, as drivers of content. But the empirical evidence suggests that network-based platform designs are more, not less, likely to experience higher levels of fake news, and that they are less amenable to technical fixes.¹⁴⁵ Tort liability, at least as understood by the Third Circuit in the TikTok case, therefore pushes platforms away from socially desirable equilibria. Paradoxically, all else being equal, it is likely to increase, and not decrease, the volume of deeply troublesome material on platforms of the sort at issue in the Third Circuit TikTok case. More generally, it is again hard to see how liability for algorithmic design decisions, all else being equal, is socially desirable.

B. The Possible Vectors of Algorithmic Integrity

The fact that state and national governments opt for partial or unwise regulatory strategies does not mean that are no promising paths forward. To the contrary, the examples examined in Part II suggest a range of useful reforms. I outline three here briefly.

To begin with, the examples of Wikipedia and the BBC suggest that it may be possible to build at least small-scale islands of algorithmic integrity either in the private or the public sector. Those examples further suggest that whether state or private in character, such an island needs mechanisms to shield itself from the pressure to maximize profits. An entity that is exposed to the market for corporate control is unlikely to be able to resist commercial pressures for long.

Corporate form hence matters. For example, social platforms’ incentive to maximize engagement, and hence maximize advertising revenue, has been “critical” to driving the dissemination of radicalizing and hateful speech.¹⁴⁶ The transformation of Twitter to X after its purchase by Elon Musk, and the subsequent degradation and coarsening of discourse on the platform, offer an abject lesson in the perils of the unfettered free market for islands of algorithmic integrity.¹⁴⁷ The market for corporate control, which is often glossed over in light of the efficient capital markets hypothesis, is commonly viewed as an unproblematic good.

One of the main lessons of the islands of integrity literature, however, is the need for well-motivated leadership of the sort that has been described at Wikipedia and the BBC. It is hard to see how such motivation survives under the shadow of potential corporate takeover.

Second, islands of integrity require the right means (or tools), as well as the right motive. The use of algorithmic tools to curate a platform creates means in a way that reliance on network effects does not. It is thus a mistake to assume, as the Third Circuit seems to have done in the TikTok case, that an algorithmically managed platform is worse than a network based one. As Part I illustrated, the empirical evidence suggests that algorithmically managed platforms are generally not more polluted by misinformation than ones driven by users’ networks.¹⁴⁸ Quite the contrary.

Moreover, a social platform built around an algorithm may have tools to improve its epistemic environment that a network-based platform lacks. For instance, a 2023 study found that certain “algorithmic deamplification” interventions had the potential to “reduce[] engagement with misinformation by more than [fifty] percent.”¹⁴⁹ Another example of an instrument for epistemic integrity is, somewhat surprisingly, a feature of Facebook’s algorithm, which has baked in a preference for friends-and-family content that “appears to be an explicit attempt to fight the logic of engagement optimization.”¹⁵⁰

Third, there is a range of tailored reforms that precisely target ways in which social platforms stand in asymmetrical relations of exploitation and dominance to their users. As a very general first step, Luca Belli and Marlena Wisniak have proposed the use of “nutrition labels,” detailing key parameters of platform operation as a way of enabling better informed consumer choice between platforms.¹⁵¹ This kind of notice-based strategy, while plausible to implement, assumes a measure of user choice over which platform to use. At present, such choice is largely illusory because of the market dominance of a small number of platforms.¹⁵² It is also hard to see how consumers, particularly those already at the ideological margin, could be persuaded to make the right kind of choice. Inducing more competition, and hence more consumer choices, in social platforms would give notice-oriented measures more bite. Some work has been done on potential varieties of platform design,¹⁵³ but there remains ample room for inquiry and improvement. The basic point, though, is that some combination of increased competition and better consumer-facing notices would better allow certain users to select among different social platforms based on their own preferences—although it is hard to be confident that the right users, so to speak, will be those aided.

There are also steps that can be taken by a well-motivated platform manager. Within a platform, for example, the BBC’s strategy of promoting personalization could be adopted and redeployed in a number of ways. For instance, bots, or “user-taught” agents could be supplied to help individual users curate the shape of their feeds over time.¹⁵⁴ These bots, however, might be constrained by the understanding of the platform’s mission, which excluded normatively troublesome activity characterizing the tails of the ideological distribution.

Finally, another way of mitigating exploitation concerns focuses on advertisers rather than users. Firms advertising on platforms are often unaware their products or services are marketed next to fake news, despite having an aversion to that arrangement.¹⁵⁵ They lack, however, information on when and how this occurs. Increased disclosure by platforms on “whether . . . advertisements appear on misinformation outlets,” as well as increased “transparency for consumers about which companies advertise” there, provides the potential to stimulate a collective shift to a more truthful equilibrium.¹⁵⁶ Such disclosures help ensure that “the means of ensuring legibility [will not completely] fade into the background of the ordinary patterns of our li[ves],”¹⁵⁷ as platform affordances become too banal to notice. Such disclosures, finally, might be mandated by law, potentially as a means of mitigating fraud concerns related to platform use.

Conclusion

In this essay, I have tried to offer an affirmative vision of social platform governance in the long run, or at least the seeds of such a vision. No doubt this vision is leagues away from the grubby, venal, and hateful reality of social platforms now. It is, indeed, a stark contrast to those extant realities. But one of the functions of scholarship is to generate plausible pathways away from a suboptimal institutional status quo. The articulation of alternatives is itself of value.

As I have suggested, drawing on sociological and political science literature on islands of integrity in public administration allows us to see some of the limits of existing regulatory strategies with respect to social platforms. Doing so opens up new opportunities for improved public and private governance. Of course, the model of islands of integrity in a public administrative context cannot be mechanically transposed over to the platform context. But by offering us a new North Star for reforming governance efforts, I hope it can advance our understanding of how to build platforms fit for our complex, yet (perhaps still) fragile democratic moment.

98 S. Cal. L. Rev. 1287

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Aziz Z. Huq*

* Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School, and associate professor, Department of Sociology. Thanks to Erin Miller for extensive and illuminating comments, and to participants in the symposium—in particular Yasmin Dawood—for terrific questions and conversation. The editors of the Southern California Law Review, in particular Michelle Solarczyk and Tyler Young, did exemplary work in making this essay better. The Frank J. Cicero Foundation provided support for this work.

Pluralism and Listeners’ Choices Online

September 2025September 2025Alan K. Chen*

“The plain, if at times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, ‘we are inescapably captive audiences for many purposes.’ ”¹

The speech and technology world has changed dramatically, even unimaginably, since Justice Powell penned these words about drive-in movie theaters. In attempting to grapple with this quandary in the contemporary era, James Grimmelmann offers us the provocative and original paper, Listeners’ Choices Online.² His contribution to this Symposium builds on earlier work in which he argues for a theoretical approach to free speech that makes listeners’ interests the central focus of First Amendment doctrine.³ As he argues in the earlier paper, freedom of expression involves what he calls a “matching problem”—ideally lining up speakers with listeners who want to hear their expression, but not with listeners who do not.⁴

The current paper is simultaneously both too complex and too nuanced to adequately summarize in this brief Comment, but here are a few of his main points as I interpret them, and that my comments will address.

Facilitating matching between willing speakers and willing listeners is the goal of a system of free speech. In that regard, “listeners’ choices matter more than speakers’.. . . A consistent

commitment to protecting these willing speaker-listener pairs results in a system of First Amendment law that regularly defers to listeners’ choices.”⁵

Applying that model resolves some of the important First Amendment questions arising from the regulation of contemporary electronic speech media.
It is useful to disaggregate communication media into four types, each of which presents distinct matching challenges: (1) Broadcast (television, radio, cable); (2) Delivery (telephone, email, messaging); (3) Hosting (providers of space for speech, but not engaged in speech themselves); and (4) Selection (directing listeners to specific content via algorithms based on the perception of listener preferences).⁶ Currently, hosting and selection functions are frequently combined, though that does not have to be so.⁷
Selection intermediaries play a key role in determining what listeners hear or see. This is an essential function because the sheer volume of speech available on the Internet creates otherwise insurmountable attention scarcity problems for listeners.⁸
This listeners’ choice model allows for limited regulatory interventions on the media’s selection functions that would not violate the First Amendment.
It would violate the First Amendment for regulators to prohibit intermediaries from offering listeners the ability to choose what speakers to listen to because that interferes with listeners’ right to listen.⁹
However, the government may permissibly intervene when a search engine (or, presumably, other selection intermediary) is dishonest or disloyal to its users, “when it shows them results that (objectively) differ from the engine’s own (subjective) judgment about what the users are likely to find relevant,”¹⁰ because that also interferes with listeners’ interests.
It would also be permissible to have a rule requiring pure selection intermediaries to treat first-party content evenhandedly with content posted by third parties.¹¹
“Seeing the Internet from listeners’ perspective is a radical leap. It requires making claims about the nature of speech and about where power lies online that seem counterintuitive if you are coming from the standard speaker-oriented First Amendment tradition. But once you have made that leap, and everything has snapped into focus again, it is impossible to unsee.”¹²

There is much to admire in Professor Grimmelmann’s paper. It makes a number of important and original contributions to thinking about the regulation of social media and is in many parts completely persuasive. First, consistent with the objective of this Symposium, it highlights listeners’ interests as a basis to evaluate the American system of freedom of expression. It is indisputable that the Supreme Court and legal scholars have underappreciated the role of listeners’ interests in articulating First Amendment doctrine.¹³ The primary context in which the Supreme Court expressly considers listener interests involves unwilling listeners as captive audiences, but those are the only cases that place listeners’ interests at center stage.¹⁴ The Court has upheld legal rules that bar speakers from imposing speech on unwilling listeners when the listeners’ “substantial privacy interests are being invaded in an essentially intolerable manner.”¹⁵ Even in captive audience situations, as Grimmelmann points out, under current doctrine the interests of willing listeners will sometimes outweigh the rights of unwilling listeners, particularly if it is easy for the latter to avoid the speech.¹⁶

Listeners’ Choices Online also offers us a way out of the ongoing effort to find the appropriate perspective through which to evaluate how First Amendment doctrine should apply to the contemporary media environment. Much recent scholarship has struggled with this question, with legal scholars sometimes seeking to find appropriate analogies from regulation of past communication technologies to justify a legal framework for thinking about the regulation of social media platforms.¹⁷ Is cable television like traditional television and radio broadcast media? Does regulation of telephone services offer any insight into how we ought to regulate digital communications? Is Facebook more like a parade or a shopping mall? Can social media companies be treated like common carriers, subjecting them to greater regulatory constraints than would otherwise be permissible to impose on private companies engaged in speech?¹⁸

None of the analogies work perfectly, however, because each different electronic speech medium bears some distinguishing features that complicate the analysis.¹⁹ Some, as the article points out, are mere vessels for delivery of content, while others engage in important speech-impacting selection decisions that help listeners sort through the onslaught of online content, but, in doing so, may affect listeners’ interests by providing them content they do not want to hear or directing them away from content they would welcome.²⁰

The Supreme Court has only just dipped its toes in the water, in its dicta in last term’s Moody v. NetChoice, LLC, with the majority opinion stating unequivocally that “[l]ike the editors, cable operators, and parade organizers this Court has previously considered, the major social-media platforms are in the business, when curating their feeds, of combining ‘multifarious voices’ to create a distinctive expressive offering.”²¹ But as Grimmelmann points out, that is looking at the challenged state laws exclusively from the platforms’ perspective, and not the listeners’.²²

Rather than attempting to argue purely by analogy with past regulations of earlier media technologies, Grimmelmann’s paper elegantly uses listeners’ interests and choices as an organizing principle that cuts across these different media to create a coherent First Amendment model for evaluating media regulations. He suggests that focusing on these interests allows us to see more clearly the competing speech interests involved in ways that the purely analogical approach simply cannot. His listeners’ choice theory emphasizes matching speakers to willing listeners, which can be accomplished by structural designs, by some content neutral government regulation, and, in part, by requiring the separation of hosting and selection functions in ways that maximize these speaker-listener connections.²³

While Professor Grimmelmann’s model is intriguing and helps us think about media regulation in useful ways, I offer three modest thoughts, two focused on whether, in some circumstances, prioritizing listeners’ rights may come at the expense of other important First Amendment values, and one questioning whether there is a need for further promoting listeners’ choices on social media given the increasing market for niche social media sites.²⁴

Prioritizing Listeners’ Choices May Diminish Public Discourse

First, permitting limited regulation of selection intermediaries to protect listeners’ interests could, in some cases, have deleterious effects on public discourse. Even the modest regulatory interventions that Grimmelmann suggests would be permissible to advance listeners’ interests could be leveraged to challenge selection intermediaries’ decisions to offer a more balanced, fact-checked feed to their subscribers. Or, even if those effects do not come to fruition, the very existence of regulatory interventions might deter selection intermediaries from experimenting with innovations to promote delivery of a greater diversity of content that does not cater purely to listeners’ interests.

Consider a hypothetical new platform calling itself Balanced Social Media (“BSM”). Following Grimmelmann’s model, let us assume that a different company is the host for BSM, which exclusively serves a selection function. BSM designs an algorithm that, for the most part, favors listeners’ choices of content, but adds three specific features that veer from the default rule. First, it builds in its own fact-checking mechanism that flags content posted by third-party users that may be objectively false or come from sources that have proven unreliable or inaccurate in the past. The BSM algorithm will still direct the user to that content, but the content will be marked with a red flag that warns the user that the factual foundation of the material may not be valid, and provides a link to a source that disputes the factual validity of the original post.

Second, the algorithm is designed to monitor users’ feeds to determine if they are seeking content that is unilaterally biased toward one particular ideology, for example, if a user reads only content posted by Fox News or MSNBC. If the algorithm identifies users who seek ideologically unbalanced content, it will occasionally feed such users some third-party content that comes from a dissimilar political perspective. This counter-ideological feed could come randomly or perhaps after the user has viewed ten consecutive stories from sources with their preferred ideological perspective.

Alternatively, BSM could instead offer a slightly less intrusive option under which, rather than posting counter-ideological content, BSM could give the user a warning or notice to the effect that the user has been reading content that is exclusively coming from sources with a specific political orientation and asking if the user would like to see something from a different perspective. This might operate in a manner like TikTok’s option for its users to set a daily screen time limit and be notified when they have reached that limit.²⁵ Under my hypothetical, however, users would not be able to turn off this setting.

Third, BSM occasionally posts its own independent content on the platform that discusses issues regarding the responsible use of social media and the importance of ensuring that information is factually accurate before posting it. As with the counter-ideological posts, it will feed periodically into all users’ feeds. BSM users cannot opt out of any of these functions; though, of course, they may decide they do not want to use BSM. When users sign up to use BSM, they are fully informed about the algorithm’s functions, which they agree to as part of the Terms of Service (“TOS”). The TOS even says, “BSM offers a new vision of social media, one that will deliver content that you did not ask for, or even that you do not want to see (of course, we cannot make you read it, that is up to you!). The goal of our model is to expose all people to a range of ideologically diverse content.”

Grimmelmann’s model seems to suggest that lawmakers might be able to forbid BSM to adopt these innovative features because they do not fully promote listeners’ choices. The fact-checking flags and counter-ideological feeds are content that many users may not wish to see; indeed, they may be viscerally repelled by these posts, particularly if this interferes with their ability to experience the emotional resonance associated with speech that highlights their own world views.²⁶ He suggests that regulators may be able to restrict selection intermediaries’ use of such algorithms to the extent that “it shows [users] results that (objectively) differ from the engine’s own (subjective) judgment about what the users are likely to find relevant.”²⁷ In fact, BSM’s model is designed to show user content they do not want to see. In Grimmelmann’s terms, the intermediary is being disloyal to its users (although because the algorithm’s functions are fully disclosed in the TOS, they can argue they are not being dishonest).²⁸

Moreover, the BSM-produced content (and maybe even the fact-checking posts) can be viewed as first-party content.²⁹ BSM is in some sense trying to compete in the social media market by offering a new way of delivering content. Would a pure listener-based approach result in such experiments being shut down by regulators because they are occasionally giving their first-party content priority over content posted by third parties?³⁰ That is, by feeding users first-party content in the form of sermons on the importance of truth in the responsible use of social media, has BSM interfered with listener choice? Because Moody holds that social media platforms are speakers when they make decisions about content moderation,³¹ they are unquestionably speakers if they are producing their own content. How would Grimmelmann’s model address the tension between a regulation prohibiting BSM from prioritizing first-party content to protect listeners’ choice and the platform’s First Amendment speech rights?

To the disloyalty argument, Grimmelmann might respond that because BSM is transparent about its algorithm, it is not actually being disloyal or dishonest to its users.³² Listeners who do not want this type of balanced approach can simply choose a different platform that better suits their listening tastes. However, while BSM is certainly giving listeners choice at the first level (platform selection), its model will inevitably result in some BSM users receiving speech at the second level (content selection) that they subjectively do not want to hear.

Elevating Listeners’ Choices Could Encourage Information Silos

A closely related concern with a system of electronic media regulation focusing primarily on promoting listeners’ interests is whether such an emphasis could have the broader systemic effect of exacerbating ideological information silos even more than under the current system.³³ An important function of a system of free expression is, of course, promoting robust public discourse. Public discourse is inherently oppositional—speakers of different viewpoints must be able to engage each other for it to meaningfully occur.

In many cases, speakers desire to reach listeners whom they believe will be persuaded by their messages if those listeners only had an opportunity to hear them. Anti-abortion advocates may sincerely believe that if women considering abortions only had more information, they would make different choices. Protesters concerned about the humanitarian crisis associated with Israel’s military actions in Gaza would like to reach those who are unconditionally sympathetic to Israel’s right to defend itself because they think, with additional information, these listeners may modify their positions. On social media as well, speakers try to convince unwilling listeners of the virtues of their political positions. Preaching only to the converted does not facilitate healthy discourse.

Outside of the captive audience context, which is almost exclusively applied to unwanted speech in one’s home,³⁴ a key function of the First Amendment is served by advancing the interests of speakers to influence those who are not inclined to agree with them.³⁵ As the Supreme Court has recognized:

[Speech] may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.³⁶

These express values are in direct tension with a purely listener-based approach. This may be particularly true of speech on social media, which the Court has argued is one of the “most important places . . . for the exchange of views.”³⁷

Thus, a second concern I have with a model prioritizing listeners’ choices over speakers’ is that its application, in many contexts, may impede what we might describe as lawful, but uncomfortable, speech that is intended to persuade.³⁸ If listeners can confine themselves only to speech they want to hear, even in the social media context, then prioritizing that interest can operate as a kind of quiet heckler’s veto. In a social media environment in which listeners’ choice prevails, it is hard to imagine how persuasion might work, either individually or collectively. Are there any situations involving such speech through media in which the default position is not valuing the listener over the speaker, and if so, how could that decision be implemented?

Perhaps our society is headed in this direction already given that, as Grimmelmann observes, even in the absence of regulation of selection intermediaries, listeners might deploy a combination of pure hosting platforms with middleware, a third-party software that allows them to customize their feeds at an even greater level of detail.³⁹ While this, too, would benefit listeners’ choices, it would move us in the direction of a more atomized speech universe—which is not necessarily a good thing, but at least it would not be the product of government intervention.

Market Responses Are Already Enhancing Listeners’ Choices

Finally, one could argue that market forces are already moving toward a listener-centric model with the proliferation of niche social media platforms, even in the absence of regulatory interventions.⁴⁰ There is some evidence that users are beginning to migrate from more general social media sites such as X (formerly known as Twitter), to special interest platforms where they can avoid the cacophony of hostile rhetoric in favor of sites where they can engage with a smaller cohort of people who share common interests. That development certainly enhances listener choice without risking the possible unintended consequences of regulations designed to promote listeners’ choice.

Especially during the 2024 election season, there seemed to be growing dissatisfaction with general social media sites because of the unavoidability of sometimes harsh political discourse. It was not uncommon to hear calls for platforms dedicated to only discussion of books, movies, music, gaming, and other mostly nonpolitical (or, at least, not primarily political) topics that listeners sought out to find some respite. Sports lovers initially were the exception to this rule, although even those users have now started fleeing X.⁴¹

Available statistics suggest that the market has responded to this interest and is already enhancing listener choice by serving its own matching function. About 115,000 users deactivated their X accounts on the day after the November 2024 Presidential Election.⁴² No matter how the total user base is measured, that is a very small percentage, which is unsurprising because network effects deter people from leaving even platforms with which they are dissatisfied. Of course, people can maintain active X accounts while still seeking out other outlets for speech. In comparison, niche social media platforms are still quite small. One of the largest, Goodreads, a platform to share book recommendations, had about 150 million users as of 2023.⁴³ Houzz, a home design social media platform, reportedly has about 70 million users.⁴⁴ A platform for movie lovers (especially indie) called Letterboxd now has about 17 million users.⁴⁵ Reddit, while open to a wide range of users, is well known for facilitating smaller communities to generate discussion of interest, and now has about 91 million daily active users.⁴⁶ Finally, Substack, a platform for distributing individualized newsletters to both paid and unpaid subscribers, now has approximately 50 million subscribers.⁴⁷

It may seem somewhat contradictory to fret about information silos while simultaneously celebrating the expansion of niche social media sites. To address this briefly, I would argue that the siloing problem is much more problematic on the larger, omnibus social media platforms than with niche social media platforms. Political discourse is one of the main features of the larger platforms, so cutting off speech that is ideologically diverse is truly undermining the opportunities for persuasion. In contrast, the niche social media sites are mostly excluding posts about other topics not because of any ideological commitments, but rather to help filter out what they regard as irrelevant information. That is not to say that political discourse cannot arise in the context of these niche sites,⁴⁸ but it is at least less likely to do so. And, of course, these users may be walling themselves off from any political speech, which could be problematic for public discourse in the long run. But there is nothing to suggest that these users might not still engage in political discourse on other platforms or in other contexts of communication in their non-online lives.

* * *

Notwithstanding my limited reservations and questions, I wholeheartedly welcome Professor Grimmelmann’s important and valuable contribution to thinking about the complex constitutional and social issues associated with regulation of electronic media in the current climate. Continued efforts to meaningfully apply standard First Amendment doctrine to new media allow us all to think critically about the best way forward.

98 S. Cal. L. Rev. 1387

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Alan K. Chen*

* Thompson G. Marsh Law Alumni Professor, University of Denver Sturm College of Law. Thank you to Erin Miller and to the editors and staff of the Southern California Law Review, and especially Simone Chu, for their efforts in organizing this fantastic Symposium. Thanks also to Nina Christensen and Charlotte Rhoad for their helpful research.

Protecting Listeners From Unwanted One-to-One Speech

September 2025September 2025Eugene Volokh*

I. The Value of the One-to-One vs. One-to-Many Line

“[N]o one has a right to press even ‘good’ ideas on an unwilling recipient,” the Supreme Court held in Rowan v. United States Post Office Department.¹ At the same time, “[t]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.”² That is generally true even if the speaker’s opinion gives offense not just to “society” but to many of the speaker’s listeners.³

The best way to reconcile these principles, it seems to me, is to distinguish (1) one-to-one speech said to an unwilling listener from (2) one-to-many speech that reaches both potentially willing and unwilling listeners.⁴ Ashutosh Bhagwat well explains both the precedents and the policy arguments supporting the distinction. Most speech should generally be protected because it may persuade or inform some potentially willing listeners even if others are upset.⁵ But speech said solely to an unwilling listener, where it’s clear the listener is unwilling, is likely only to offend. The government can in many situations help protect listeners against such one-to-one speech, because that promotes the unwilling listener’s autonomy without interfering with communication to potentially willing listeners.⁶

And this helps explain the constitutionality of many common speech restrictions, including:

telephone harassment laws,⁷
do-not-call registries,⁸
harassment restraining orders that forbid speech to the protected person,⁹
application of university “hostile environment harassment” policies to people “following students around and yelling slurs or otherwise directing hostile speech at individual students who have demanded to be left alone,”¹⁰
application of workplace harassment law to one-to-one insults, or one-to-one repeated unwanted romantic advances,¹¹
residential picketing laws,¹² and more.

II. Must Restrictions on Unwanted One-to-One Speech Be Content-Neutral?

This general conclusion, however, raises subsidiary questions. A particularly important one is whether restrictions on one-to-one speech must be content-neutral.

There is precedent suggesting this, as well as broader First Amendment principles supporting such a view. Frisby v. Schultz upheld a content-neutral residential picketing ban on the grounds that such picketing is essentially speech targeted to the unwilling listener in the home.¹³ But Carey v. Brown had earlier struck down a residential picketing ban that excluded labor picketing because that exclusion made the law content-based.¹⁴ It was the content neutrality of the ban in Frisby that saved it.¹⁵

We see something similar in Rowan v. United States Post Office Department.¹⁶ Rowan upheld a statute that barred senders from sending material to householders, once the householder informed the post office that he “in his sole discretion believes [the mailings] to be erotically arousing or sexually provocative.”¹⁷ The statute was thus content-based on its face, but the Court stressed it was essentially content-neutral as enforced:

Both the absoluteness of the citizen’s right under [the statute] and its finality are essential; what may not be provocative to one person may well be to another. In operative effect the power of the householder under the statute is unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents—or indeed the text of the language touting the merchandise. Congress provided this sweeping power not only to protect privacy but to avoid possible constitutional questions that might arise from vesting the power to make any discretionary evaluation of the material in a governmental official.¹⁸

Yet if content neutrality is indeed required in such situations, then many restrictions on one-to-one speech would be hard to defend. Telephone harassment laws, for instance, often specially target lewd or indecent harassing calls.¹⁹ Workplace harassment law ends up specially targeting one-to-one speech that is personally insulting.

Likewise, when various laws target one-to-one speech intended to “harass” or “abuse,” they must be treated as content-based. As the Court held in Reed v. Town of Gilbert, “[s]ome facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.”²⁰ When the “regulated speech” is defined by a purpose to harass or abuse, that definition generally targets speech that has a harassing or abusive “message.” The definition is therefore content-based.

More broadly, when even a “generally applicable law” is “directed at [a speaker] because of what his speech communicated”—when the speaker violates the law “because of the offensive content of his particular message”—that too is treated as a “content-based regulation of speech.”²¹ This would cover most harassment laws, at least when speech is found to be harassing because of its offensiveness rather than because it’s too loud or ties up telephone lines.

Indeed, relatively few of these laws actually set up Rowan-like rules that (1) require the listener to first tell a speaker, “stop speaking to me,” but then (2) make that order binding regardless of what the speaker wants to say. The laws are indeed aimed at “address[ing] the ‘first blow’ of curse words spoken only once.”²² At the same time, they aim to avoid giving someone an absolute veto on future communications: consider, for instance, workplace harassment, where the law can’t let employees categorically forbid any future communications (including on legitimate work-related topics) by coworkers.

Now perhaps that’s the wrong approach—perhaps the law should indeed insist on content neutrality even as to restrictions on unwanted one-to-one speech. Or perhaps content-based restrictions should indeed be subjected to strict scrutiny but might in some situations be upheld.

But I think it might be better to recognize that at least some such content-based restrictions are permissible when it comes to one-to-one speech, even if they wouldn’t be permissible as to one-to-many speech. The Court has acknowledged that content-based restrictions may be constitutional when “substantial privacy interests are being invaded in an essentially intolerable manner.”²³ Perhaps the “privacy interests” here should be read as not just focusing on privacy in the home, or true captivity of a sort where it is “impractical for the unwilling viewer or auditor to avoid exposure.”²⁴ Rather, perhaps they should also be seen as including intrusions on the listener’s autonomy rights that Professor Bhagwat rightly identifies: the targeting of a particular likely unwilling listener for one-to-one speech may be what is “essentially intolerable.”

R.A.V. v. City of St. Paul²⁵ may provide a helpful framework for dealing with this. The Court in R.A.V. held that content-based restrictions must generally be subject to strict scrutiny even when they are limited to subsets of unprotected categories of speech. For instance, a ban on racist fighting words would be presumptively unconstitutional even though a ban on all fighting words would be valid.²⁶ But the Court also held that this principle has certain exceptions, again where the content discrimination is entirely within an unprotected category; the relevant exceptions are:

“[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable,”²⁷ for instance when the law restricts “only that obscenity which is the most patently offensive in its prurience,” or “only those threats” that are especially disruptive;²⁸
when “a particular content-based subcategory of a proscribable class of speech” is “swept up incidentally within the reach of a statute directed at conduct rather than speech”;²⁹ and
when “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.”³⁰

The same might apply with regard to subcategories of likely unwanted one-to-one speech, if Professor Bhagwat and I are right that such speech is essentially constitutionally unprotected. Indecent harassing phone calls, for instance, may well be especially likely to be unwanted, and a restriction on such calls may indeed be unlikely to involve “official suppression of ideas.”

Likewise, a prohibition of one-to-one speech intended to abuse or harass might be justified on the same theory, and might also be “swept up incidentally within the reach of a statute directed at conduct rather than speech,” given that such harassment laws often do target nonspeech conduct (such as physical stalking) as well as speech. R.A.V. itself gave hostile environment harassment law as an example of a law that may “incidentally” “swe[ep] up” “sexually derogatory ‘fighting words,’ among other words,” because it bans a wide range of conduct as well as speech.³¹ Likewise, the law may incidentally sweep up derogatory unwanted one-to-one speech more broadly. (For reasons I explain elsewhere, this rationale does not extend to offensive one-to-many ideological expression, even when it’s viewed as sexist, racist, and the like.³²)

III. When Must the Government Tolerate One-to-One Speech to Government Officials?

Though one-to-one speech to unwilling listeners may generally be forbidden, the analysis must be different when the speech is addressed to government employees on the job, especially public-facing employees. I agree with Professor Bhagwat that listeners generally have considerable autonomy interests in not hearing unwanted speech—interests that the government may protect. But when one works for the public,³³ one must accept the risk of disapproving speech from the public:

[R]eceiving mail from disgruntled constituents is usual for a politician. A person “who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs . . . [and] runs the risk of closer public scrutiny than might otherwise be the case.” Here, given Michael’s status as a selectman and the content of the letters, it cannot be said that Michael’s “substantial privacy interests [were] invaded in an essentially intolerable manner.”³⁴

This is particularly clear for elected officials,³⁵ candidates for office,³⁶ or high-level political appointees.³⁷ But it may be true for lower-level public-facing employees as well, such as police officers³⁸ or others.³⁹ Some cases do allow punishing offensive speech to such employees,⁴⁰ but I think they’re mistaken.⁴¹

IV. The Borders of “One-to-One”

Finally, “one-to-one” and “one-to-many,” like many such useful general phrases, may not fully capture the legal principles that courts should and do apply. To give one example, say someone is speaking simultaneously to three listeners, all of whom have asked the speaker to stop bothering them. That’s technically one-to-three speech, not one-to-one speech. But it should be restrictable as tantamount to one-to-one speech, precisely because it is addressed solely at unwilling listeners.

Likewise, say Wendy Smith’s ex-husband Harry Smith posts a Facebook message on his own page saying, “My ex @WendySmith is a slimy trollop.” (This @ syntax is specifically designed to notify the Facebook user WendySmith about the post; Twitter and Instagram have the same feature.) It is thus more or less like an e-mail to Wendy (one-to-one speech), coupled with a post about her to the author’s friends (one-to-many speech). If Wendy gets a harassment restraining order barring further correspondence from Harry, it would be constitutionally permissible for that order to be interpreted as banning such mentions; Harry would still be able to communicate with his friends by posting the same item without the @ (“My ex Wendy Smith is a slimy trollop”).⁴²

The hardest question arises when speech appears to be largely aimed at a particular unwilling listener but also reaches some other listeners. This is what the Court faced in Frisby v. Schultz, where it reasoned that residential “picketing is narrowly directed at the household, not the public”:

The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way. Moreover, even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy. . . .

Because the picketing prohibited by the Brookfield ordinance is speech directed primarily at those who are presumptively unwilling to receive it, the State has a substantial and justifiable interest in banning it.⁴³

Here the speech wasn’t “foisted (exclusively) upon unwilling listeners”⁴⁴—presumably at least some residential picketers also want to reach the resident’s neighbors.⁴⁵ Rather, the Court says the speech was targeted “primarily” at the resident and acknowledges that it might have also had “a broader communicative purpose.”

Distinguishing the “primary” audience from the “secondary” is of course subjective, plus it’s not clear why even secondary audiences should be ignored. For instance, if animal rights protesters are picketing outside a fur store, is their speech “directed primarily” at buyers, who are likely “unwilling to receive” the message (especially if the message is framed harshly)? After all, fur buyers presumably know well where the fur comes from—and like it. Or is the speech directed at least equally to neighbors and passersby, or to the likely relatively rare ambivalent customer?

Likewise, most people who go to abortion clinics are likely unwilling to hear from anti-abortion protesters and counselors, but some might be open to their arguments.⁴⁶ Most people who go to churches, synagogues, or mosques that are being picketed are unwilling to hear from protesters,⁴⁷ but again some might be persuadable.

I’m not sure how this line is to be properly drawn. Perhaps courts should view Frisby as limited to “residential privacy,” given its reliance on the precedents saying that, “[a]lthough in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different.”⁴⁸ On the other hand, there will always be arguments for extending this sort of extra protection beyond the home to medical facilities,⁴⁹ funeral homes,⁵⁰ high schools,⁵¹ places of worship,⁵² and more. Here, I just want to acknowledge the difficulty that this issue raises.

Conclusion

The one-to-one/one-to-many distinction is critical to understanding how and when unwilling listeners may be protected. I hope this short article has helpfully elaborated on a few questions the distinction raises.

98 S. Cal. L. Rev. 1427

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Eugene Volokh*

* Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford); Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA.

Introduction

I. Robotaxis Today

A. Technologies

B. Economics

Market Structure

Cost Structure

Deployment

C. Potential for Wider Adoption

D. Regulation

Safety Regulation

Service Regulation

II. Curbing Externalities

A. Externalities and Mode Choice

B. Pollution

C. Wear-and-Tear

D. Congestion

E. Privacy

III. Protecting Riders

A. Promoting Competition

Competition and Safety

Open Entry

Lock-in Contracts

B. Preserving Autonomy

Transparent and Rider-Neutral Fares

Emergency Planning

IV. Redesigning Mobility

A. Liberating Land

B. Refocusing Transit

C. Expanding Access

People with Low Incomes

People with Disabilities

Sparsely Populated Areas

Conclusion

99 S. Cal. L. Rev. 603

INTRODUCTION

I. THE ARRIVAL OF KIDFLUENCERS

A. A Brief History of Stage Mothers

B. Reality Television Bridges the Gap from Film and Television to the Internet

II. REGULATING THE LABOR OF KIDFLUENCERS

A. Existing Labor Regulations for Child Entertainers

1. Federal Measures for Child Workers: The Fair Labor Standards Act

2. SAG-AFTRA, States’ Approaches & the Coogan Law

3. When Does the Home Become a Set?

B. New Efforts: Expanding Child Labor Regulations to Cover Kidfluencers

A. Privacy Regulations for Children as Users Online

Existing and Proposed Federal Regulations for Children Online

i. The Children’s Online Privacy Protection Act of 1998

ii. COPPA 2.0

2. Online Platforms’ User Age Restrictions

B. Relevance and Current Limitations of the Common Law Rights of Privacy and Publicity

C. Falling Through the Gaps: Protecting Kidfluencers’ Privacy

1. Kidfluencing’s Unique Threat to Privacy

2. Adapting COPPA 2.0 and the Necessity of a Right to Removal

IV. THE SOLUTION—FEDERAL LABOR AND PRIVACY PROTECTIONS AND REQUIRING SOCIAL-MEDIA PLATFORMS TO ENFORCE KIDFLUENCER RIGHTS

A. Section 230 and Techlash

B. Contributory Liability as a Basis for Platform Enforcement

CONCLUSION

99 S. Cal. L. Rev. 449

Introduction

I. A Well-Functioning Speech Environment and its Challenges

A. Speakers, Listeners, and the First Amendment

B. A Normative Account of a Well-Functioning Speech Environment

Informed Voting

Discussion and Deliberation

Meaningful Participation and Governmental Responsiveness

C. Digital Exceptionalism

II. Law and the Speech Environment

A. The First Amendment as a Positive Right

B. Public Discourse and Campaign Finance Regulation

C. Public Discourse and Social Media Platforms

III. Possibilities for Countervailance

A. Disclosure and Transparency

B. False Election Speech

C. Deepfakes and AI

D. Incentives and Norms

E. Public Jawboning

F. Civil Society and the State

Conclusion

98 S. Cal. L. Rev. 1193

Introduction