Can America regulate big tech at all?

The first amendment—which prevents the government from “abridging the freedom of speech”—is foundational to America’s democracy. Several states have recently passed legislation to regulate the tech industry that may violate this fundamental right. In 2024, tech companies will fight back.

The big question is whether a country with First-Amendment protections can regulate tech at all. The Children’s Online Privacy Protection Act (COPPA), which went into effect in 2000, requires websites to obtain parental consent before collecting, using, or disclosing personal data from children under 13. Aside from this law, the tech industry operated with limited regulation for 20 years. Now statehouses on both sides of the political divide have stepped in to fill this void.

The state policies can be split into two broad categories. One type of law claims to protect children. California’s governor signed the California Age-Appropriate Design Code Act in September 2022. It requires companies to be more careful about how they interact with children. Florida and Connecticut have drafted similar bills, but in September a federal judge temporarily blocked California’s law over First-Amendment concerns. A related law in Arkansas was also blocked. The worry is that these laws restrict the publication of free speech.

A second type of law attempts to regulate how tech companies moderate content. A law in Florida prohibits social-media companies from “deplatforming” users. Texas’s version of the law would prevent companies from removing posts or banning users based on their political viewpoints. A federal judge upheld Texas’s law, but the policy in Florida was blocked by a federal judge. The tech firms argue that being able to decide what to publish and what to take down, without government interference, are constitutionally protected freedoms.

These cases will force America’s legal system to reckon with complicated questions. The idea that the government cannot limit speech (with exceptions such as defamation and obscenity) extends to media companies and their right to edit content. But does it include tech firms’ moderation of posts and feeds?

A further question centres on the First-Amendment rights of children. The Supreme Court has ruled that children do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” and have a right to read controversial books. But it also says harmful materials can be restricted. How this applies to the internet is unclear.

NetChoice, a trade organisation that counts Meta, Google and other tech firms as members, says the new laws are unconstitutional. It has sued Arkansas, California and Texas, and shows no sign of backing down. At least one case, relating to efforts by Florida and Texas to intervene in content moderation, may reach the Supreme Court in the coming year. ■

Tamara Gilkes Borr, US public policy correspondent, The Economist