Jeremy Kessler (Columbia University – Law School) has posted The Short, Strange Career of Viewpoint Discrimination (Platform Regulation and Freedom of Expression in the US and Europe: Across the Great Divide (Ronald J. Krotoszynski et al. eds.) (Oxford University Press, forthcoming)) on SSRN. Here is the abstract:
In Moody v. NetChoice, the U.S. Supreme Court treated the First Amendment norm against viewpoint discrimination as intuitive and timeless. Yet the majority opinion’s portrayal of social media platforms as the victims of viewpoint discrimination relied entirely on post-1970 caselaw. That is because what this Chapter calls “viewpoint discourse” was an invention of the 1970s legal elite. That elite was responding to a distinctive social problem: the growing size and diversity of the “information class,” that is, the population of workers who earn a wage by manipulating information, whether stored on hard drives or in the human mind. This Chapter reconstructs the ideological and political economic foundations of viewpoint discourse and explores how the platform economy has destabilized them.
Highly recommended.