Election Speech and Collateral Censorship at the Slightest Whiff of Legal Trouble

Abstract

Collateral censorship occurs when an intermediary refuses to carry a speaker’s message for fear of legal liability. Election speech intermediaries are prone to engage in collateral censorship because their interests do not align with the interests of election speakers, yet the common law places liability on intermediaries and speakers alike. But collateral censorship is not a problem unique to election speech. It would threaten the vibrancy of Internet speech had it not been for the Communications Decency Act immunizing Internet intermediaries from civil liability (except intellectual property law). The rationales and successes of the CDA justify immunizing election speech intermediaries because they, like Internet intermediaries, do not share the same characteristics as traditional publishers, have misaligned interests that are seldom addressed by the market, and are incentivized to censor valuable speech when uncertain about liability. This Comment proposes model legislation to immunize election speech intermediaries, but only from claims for defamation and violation of state false election speech laws. Such legislation would largely remove election speech intermediaries’ incentive to censor election speech that may seem unlawful (or legally troublesome), but in fact be lawful and highly valuable to our democracy.

Sadeghi-63-5-update
By uclalaw