For example, California presents its Age-Appropriate Design Code as a privacy regulation. Yet, the law imposes obligations on websites to deploy algorithms, designs, and features in a certain way or face fines. Of course, algorithms, features, and designs are the means by which websites develop, display, and disseminate speech.
Arkansas contends that its Social Media Safety Act regulates social media as a “place.” Arkansas seeks to keep minors out of this place just like it restricts their access to bars and casinos. But there is a fundamental distinction between social media and a bar or casino. Social media sites are speech sites. They are designed to facilitate the creation, consumption, and distribution of speech. Bars and casinos, by contrast, are not.
When challenged, both Arkansas and California refused to concede that their laws are censorial. In fact, California boldly proclaimed that its law has “nothing to do with speech.” In both cases, the government’s entire position depends on courts ignoring reality and the crucial role algorithms and social media play in creating, curating, and disseminating online speech. Fortunately, courts are not so naive.