UMass Law Associate Dean for Academic Affairs Shaun Spencer joined an international panel of experts at a Loyola Chicago Law School symposium, “Consumer Protection in the Online Ecosystem.”
Spencer joined professors from Australia, the Czech Republic, and the Netherlands for a panel on Consumer Decisionmaking in a Technology-Driven World. Spencer’s presentation, “Mandatory Social Media Labeling and the Zauderer Test,” discussed the First Amendment implications of a pending Senate bill, the Social Media Nudge Act.
The Social Media Nudge Act proposes a study of “content-agnostic interventions” that social media platforms could implement to mitigate the viral spread of harmful content. The FTC would rely on the study to draft regulations specifying which interventions social media platforms must implement. The Act contemplates three types of interventions: purely informational nudges to users such as screen time alerts; prompts to help users identify manipulative and microtargeted ads; and alerts prompting users to read content before sharing it.
If the FTC were to mandate such interventions, their best chance at surviving the inevitable First Amendment challenge would be to fall within the Zauderer test, which applies to laws mandating “purely factual and uncontroversial” disclosures in commercial advertising and product packaging. Under Zauderer, courts uphold such mandatory disclosures unless they are unduly burdensome or not reasonably related to the state’s interest.
Drawing on emerging research on social media content moderation, Spencer detailed examples of three types of mandatory disclosures that the FTC could implement. Spencer then assessed the likelihood that these mandatory disclosures survive First Amendment challenges. The outcome would likely turn on whether online platforms are analogous to the advertising or product packaging to which the Zauderer test usually applies. Zauderer applies only to commercial speech, meaning speech that merely proposes a commercial transaction or is related solely to the economic interests of the speaker and audience. The platforms would likely argue that Zauderer cannot apply because the Nudge Act disclosures would be intertwined with the speech that users share online, which is not commercial speech. To survive First Amendment scrutiny, the government would have to persuade the court that the Nudge Act mandatory disclosures were part of the platforms’ infrastructure rather than the speech of its users. In that case, they would be analogous to mandatory disclosures on the packaging of “speech” products such as video games to which courts have previously applied Zauderer. In Spencer’s view, that would be the better legal interpretation, but the Supreme Court’s current hostility to long-standing commercial speech law suggests that the government might face an uphill battle.