Jack Balkin

Platform owners will no doubt assert First Amendment defenses to legislative protections of rights. In the Information Age, the First Amendment has become the first line of defense against almost every variety of government regulation of media enterprises. Some of those First Amendment defenses should be taken seriously, but others should not. The First Amendment is misused if it allows platform owners to avoid what is essentially consumer protection regulation. In addition, because platform owners are conduits for the speech of others as well as speakers in their own right, we can imagine game spaces where regulating to protect the free speech interests of the players might be constitutional. But there is a great danger here: legislatures must understand that all game spaces should be treated alike.