Speech Balkanization

The First Amendment’s application to the internet is in flux. Ambitious state legislation threatens to undermine social media platforms by splintering them state by state or by forcing them to adopt individual states’ regulatory preferences on a nationwide basis. To mitigate these risks, First Amendment doctrine needs an anti-balkanization principle—a presumption against skewing interstate speech channels along state lines. The Supreme Court has rejected patchwork regulatory regimes that imperiled interstate channels like newspapers, film distributors, and political conventions. But in these cases, the Court never adopted a consistent doctrinal approach to assessing the balkanization dangers that state-by-state regulation posed. And in other areas, patchwork regulation continues to subvert interstate channels.

The anti-balkanization principle offers a solution. It would call for explicit consideration in First Amendment analysis of the key national function served by interstate channels. This means courts would assess whether patchwork regulation would distort national discourse by fatally fracturing interstate channels or by forcing them to adopt an outlier state’s approach nationwide. Accounting for these threats would add a structural backstop to First Amendment doctrine, ensuring that otherwise valid state regulatory interests are measured against conflicting national interests. It would better align the First Amendment with the Constitution’s nation-building design and ends. And it could help resolve a major, looming balkanization hazard: state laws requiring social media platforms to carry content they would rather remove.