Political or ideologically-based corporate censorship of social media content and users is a discernable social, economic and political problem. As private conduct, it is not a violation of the First Amendment’s speech clause. The problem appears intractable because of a combination of broad statutory protection for online service providers, one-sided terms of service and a lack of federal regulatory acknowledgment of the problem.
This paper suggests, however, that a state-based consumer protection initiative requiring the “good faith” application of social media platforms’ terms of service to user bans could overcome these obstacles and would be consistent with a wide range of consumer-oriented remedial regimes that have survived constitutional and other attacks.
This is an updated and revised version of the one posted here on May 1, 2019.