The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Justice Barrett's Netchoice Concurrence Raises Questions Relevant to TikTok Case


From her opinion in Moody v. Netchoice, LLC:

Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves. But foreign persons and corporations located abroad do not. Agency for Int'l Development v. Alliance for Open Society Int'l, Inc. [II] (2020)….

What if the platform's corporate leadership abroad makes the policy decisions about the viewpoints and content the platform will disseminate? Would it matter that the corporation employs Americans to develop and implement content-moderation algorithms if they do so at the direction of foreign executives? Courts may need to confront such questions when applying the First Amendment to certain platforms.

I will have more about the core issues in the Netchoice cases soon, but composing that post will take some time; for now, I just wanted to flag this discrete issue (and another one, in a coming post).