Empowering Speech by Moderating It - Danielle Keats Citron & Jonathon Penney A

Under the Texas law, a “social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: (1) the viewpoint of the user or an- other person; (2) the viewpoint represented in the user’s expression or another person’s expression; or (3) a user’s geographic location in this state or any part of this state.”5 The Fifth Circuit u. [...] The Court explained that deciding whether third-party speech will be included or excluded, pursuant to a social media compa- ny’s terms of service, amounts to editorial choices protected by the First Amend- ment and that “[h]owever imperfect the private marketplace of ideas,” it is far worse to have the government decide when speech is imbalanced and “coerc[e] speakers to provide more of some view. [...] Computer hackers and peeping toms cannot avoid crim- inal penalties by insisting that they were only trying to discover information that the public would benefit from knowing.25 What about the argument that the disclosure of intimate images involves the discloser’s speech so it cannot be the basis of civil remedies or criminal penalties? When the government regulates speech based on the content of. [...] Colorado that the First Amendment requires proof that a defendant was reckless about the terrorizing nature of a threat to crimi- nally punish a “true threat.” The law can regulate true threats, but there must be proof that the defendant consciously disregarded the risk that their speech activ- ity would be viewed as threatening in order to prevent the chilling of protected speech.29 As we wait fo. [...] 40 Dædalus, the Journal of the American Academy of Arts & Sciences Danielle Keats Citron & Jonathon Penney about the authors Danielle Keats Citron, a Member of the American Academy since 2023, is the Jefferson Scholars Foundation Schenck Distinguished Professor in Law at the Uni- versity of Virginia.