Transparency is often considered the cornerstone of good technology governance and best industry practice – whether applied to social media platforms or AI developers and deployers. At the same time, when transparency mandates are imposed by the government, they can implicate the First Amendment. This guide intends to help policymakers effectively navigate rapidly developing and often contradictory First Amendment precedent to empower legislation that would mandate meaningful transparency about technology and the way it affects people’s rights and lives.
What is Compelled Speech?
Government requirements that individuals or entities “speak a particular message” are considered compelled speech. Compelled speech is generally subject to strict scrutiny – the most stringent form of First Amendment review. Courts recognize, however, that certain types of compelled speech are more justifiable than others – for example, relating to product disclosures. These more justifiable types of compelled speech, therefore, are subject to a lower standard of First Amendment review. Transparency mandates are one form of compelled speech.
Lawmakers should tailor transparency requirements to the appropriate level of First Amendment scrutiny to ensure the mandates stand on strong legal ground. Tech transparency requirements often fall into one of three categories, each with their own standard of First Amendment review:
- Disclosures About Regulated Conduct. The government often compels regulated entities to provide information about compliance with regulatory requirements – e.g., SEC filings. The Supreme Court has long recognized that compelled speech can be justified as “part of a far broader regulatory system that does not principally concern speech.” These disclosures are subject to a lenient form of First Amendment review. If the underlying regulatory requirement relates to speech itself – including editorial decision-making – then it may be better understood to be “speech about speech.”
- Factual & Uncontroversial Commercial Disclosures. Commercial speech is speech that “does no more than propose a commercial transaction” or that relates “solely to the economic interests of the speaker and its audience.” Common examples include advertising and product labels. Commercial speech is reviewed under an intermediate form of First Amendment review. One subset of commercial speech requirements, however – namely those that compel “factual and uncontroversial information about the terms under which . . . services will be available” – is subject to a lower standard of First Amendment review than other kinds of commercial speech.
- Speech About Speech. “Speech about speech” is a helpful way to think about transparency requirements (i.e., compelled speech) that implicate and burden underlying protected expression. Speech about speech comes up frequently in tech policy due to the editorial decision-making inherent to the design of social media platforms and AI models. Where transparency mandates are “inextricably intertwined” with and burden underlying fully protected expression, such as editorial decision-making by platforms and AI developers, those mandated disclosures are best understood as “speech about speech.” These disclosures are likely to be subject to stringent First Amendment review, including strict scrutiny.
