Beyond Social Media Analogues

Abstract

The steady flow of social-media cases toward the Supreme Court shows a nation reworking its fundamental relationship with technology. The cases raise a host of questions ranging from difficult to impossible: how to nurture a vibrant public square when a few tech giants dominate the flow of information, how social media can be at the same time free from conformist groupthink and also protected against harmful disinformation campaigns, and how government and industry can cooperate on such problems without devolving toward censorship. To such profound questions, this Essay offers a comparatively modest contribution -- what not to do. Always the lawyer's instinct is toward analogy, considering what has come before and how it reveals what should come next. Almost invariably, that is the right choice. The law's cautious evolution protects society from disruptive change. But almost is not always, and, with social media, disruptive change is already upon us. Using social-media laws from Texas and Florida as a case study, this Essay shows how social-media's distinct features render it poorly suited to analysis by analogy and argues that courts should instead shift their attention toward crafting legal doctrines targeted to address social media's unique ills.