A law regulating platform amplification of user content IS a law regulating speech. Smart people are wasting time having discussions that assume that problem away. 1/
You can’t escape First Amendment barriers (or international human rights law) just by shifting focus from “harmful content” to “the amplification of harmful content.” 2/
Most discussions I hear about this focus on making platforms demote / not amplify harmful content that is still, for better or worse, constitutionally protected speech. A law like that would have two First Amendment problems. 3/
First, an amplification law would mean the govt picks winners and losers among different users’ speech. Users can challenge that law and win. (Barring some serious communications regulation-like legal gymnastics, which is where attention will shift eventually.) 4/
Second an amplification law would dictate platforms’ editorial policy. Platforms can challenge that law and win. (Again, barring some major legal developments that would look a lot like old FCC cases.) 5/
I get why people want to talk about this. Platforms’ recommendation and ranking algorithms matter a ton. Wanting to change them, and pressuring platforms to change them *voluntarily*, is totally legit. (Though then we have to agree on the values and rules for that...) 6/
And there is an intuitive logic to saying “platforms aren’t responsible for what their users say, but they are responsible for what they choose to amplify.” 7/
But you still can’t pass laws regulating amplification if those laws are just a backhanded way of regulating legal speech. 8/
If the amplified content is actually *illegal* then we are in a different legal universe. Then the questions about what content platforms should demote look a lot like the current ones about what they should remove. 8/
If your position is that currently legal content *should* be illegal and we should change 1st Am jurisprudence, that is fine & intellectually coherent. But until that huge shift in law happens, there is no point tying that question to amplification or platform liability. 9/
One day I will write a paper saying all this in more detail. For now, thanks for bearing with my Twitter rants. 10/10
