The Limits of Antidiscrimination Law in the Digital Public Sphere

Abstract

Complaints regarding private censorship abound in the digital age, united by the underlying fear that the private companies that control platforms may use that control to distort public debate. Legislators and scholars have turned, in part, to antidiscrimination law as a potential solution. This essay argues that it would be possible and desirable to craft a constitutional nondiscrimination law for the platforms. However, such a law, if it is to be both constitutional and beneficial to the vitality of the digital public sphere, will not be able to address most of what gets described as platform censorship these days. Antidiscrimination law can require the social media companies to enforce their rules in a nondiscriminatory manner and prevent platforms from discriminating against users because of their race, gender, and sexual orientation. However, this does not achieve what most of those who advocate for antidiscrimination laws want those laws to accomplish: preventing social media companies from writing rules that shape the boundaries of public conversation. To the extent that platform power over public discourse is a legislative concern—as it surely should be—lawmakers will have to find tools from other reaches of law to cabin it.