When the Modern Public Square Goes Private: The Supreme Court's Struggle Over Social Media As the New First Amendment Frontier

Authors

• Jason M. Shepard, California State University, Fullerton
• Kathleen Bartzen Culver, University of Wisconsin-Madison

Abstract

In the wake of the Supreme Court’s 2024 decisions in Moody v. NetChoice and NetChoice v. Paxton, the meaning of free expression in the digital age is being rewritten. Our research analyzes how the Court, advocates, and amici invoked decades of First Amendment and media law precedent to define whether social media platforms act as speakers with editorial rights or as common carriers open to regulation. Relevant doctrines include First Amendment implications of medium-specific regulations, common carrier definitions, speaker autonomy, editorial discretion, expressive conduct, intermediate and strict scrutiny analysis, content-based regulations, viewpoint neutrality, and public forum analysis. Drawing on an empirical review of more than 90 briefs and oral arguments, the article reveals how old doctrines are being stretched, reinterpreted, and sometimes broken as courts grapple with questions of power, protest, and suppression online.

Recommended Citation

Shepard, Jason M. and Culver, Kathleen Bartzen (2025) "When the Modern Public Square Goes Private: The Supreme Court's Struggle Over Social Media As the New First Amendment Frontier," Loyola Interdisciplinary Journal of Public Interest Law: Vol. 3: Iss. 1, Article 2.
Available at: https://digitalcommons.lmu.edu/lijpil/vol3/iss1/2