October 10, 2025
The George Washington Law Review’s Volume 94 Symposium featured an afternoon panel on the “First Amendment in Social Media,” moderated by Professor Thomas Colby, John Theodore Fey Research Professor at The George Washington University Law School. The panelists were Professor Ashutosh Bhagwat, Boochever and Bird Distinguished Professor of Law at the University of California, Davis School of Law; Professor Dawn C. Nunziato, Pedas Family Endowed Professor of IP and Technology Law and William Wallace Kirkpatrick Research Professor at The George Washington University Law School; and Professor Evelyn Douek, Associate Professor of Law at Stanford Law School.
The discussion examined how First Amendment principles translate to modern online platforms and the tensions among speakers, audiences, and platform editorial control. The conversation illuminated deeper conflicts between private moderation and public coercion, contrasted U.S. and European regulatory philosophies, and questioned the uncertain role of courts in safeguarding speech across digital networks.
Professor Bhagwat opened by previewing his paper, “The Right to an Audience.” He argued that speech is only meaningful when a speaker can reach their intended audience––a principle that should be implicit in all First Amendment protections. Listeners who affirmatively assert a desire not to listen should be protected, he explained, but the government cannot presume unwillingness. So long as some audience members remain silent or willing, speakers retain the right to reach them. Courts, Professor Bhagwat observed, have been overly deferential in upholding “place” restrictions, such as at the 2004 Democratic and Republican National Conventions where security efforts effectively prevented protesters from reaching intended audiences. Additionally, he emphasized, apart from obscene material, the government may not shield minors from protected speech, citing Free Speech Coalition v. Paxton and Brown v. Entertainment Merchants Ass’n to underscore the narrowness of permissible restrictions.
Turning to digital contexts, Professor Bhagwat argued that if meaningful speech requires the ability to choose one’s audience, that right also extends to online speakers. He described the EU’s Digital Services Act (“DSA”) as “broad, vast, and intrusive,” suggesting its ban on targeted advertising to minors would be flatly unconstitutional in the United States. Similarly, laws mandating platforms to utilize algorithmic ranking or reverse-chronological feeds would infringe both user and platform rights. Finally, he suggested that because targeted advertising relies on data, the collection and use of personal data constitute protected “speech inputs” deserving of First Amendment scrutiny but are still subject to stricter limits for minors.
Moderator Professor Colby further questioned Professor Bhagwat on the scope of presumed “willing audiences,” inquiring whether the government should sometimes infer unwillingness ex ante for vulnerable individuals rather than requiring individualized opt-outs. Professor Bhagwat agreed that protecting unwilling listeners is a legitimate interest, but expressed skepticism that governments can reliably identify unwillingness without ideological bias. He instead supported listener-initiated mechanisms, such as moderated or closed groups, that allow individuals to assert the right to be left alone without granting the government broad power to restrict speakers’ access to intended audiences. Responding to a related question about whether the “captive audience” doctrine might offer guidance, Professor Bhagwat was unconvinced, noting that it “doesn’t really exist outside the home,” and warned that expanding such doctrines could empower the government to restrict speech more than protect the individual.
Professor Nunziato focused on the growing friction between the United States’s First Amendment protections and regulatory regimes abroad, especially the EU’s DSA. She traced platform policies over the last decade, noting a shift from relatively light moderation toward greater engagement with international human rights frameworks, such as the International Covenant on Civil and Political Rights (“ICCPR”), and a more recent retrenchment on fact-checking and hate speech enforcement under political and market pressures. She highlighted how the DSA’s requirements regarding hate speech and misinformation have prompted platforms to build legal-removal workflows for EU users, even as they scale back fact-checking in the United States. These trends, she suggested, reflect both the “Brussels Effect” by which global companies harmonize compliance standards across borders, and the simultaneous influence of domestic political pressures that have turned moderation into a partisan issue.
Professor Douek then connected the discussion to themes from the Symposium’s other panels, noting that both universities and social media serve as powerful “gatekeepers” or “choke points” that attract governmental pressure, or “jawboning,” to shape public discourse. She emphasized that while First Amendment doctrine robustly protects the platform’s right to self-curation, it struggles to address regulation-by-proxy. She cautioned against overreliance on recent court decisions that downplay government influence merely because platforms—or even universities—might have acted similarly on their own had they not been in partnership with the federal government. The First Amendment, she warned, also remains ill-equipped to recognize the diffuse, informal mechanisms through which government influence now operates, often through private intermediaries rather than direct censorship. She also noted that doctrinal nuance remains after Moody v. NetChoice, as different platform interfaces (e.g., public feeds versus private messaging) may raise distinct First Amendment concerns, and courts may ultimately treat them differently.
During Q&A, the panel turned to the analogy: Is social media the new “town square”? The consensus was cautious. Professor Nunziato warned that treating platforms as public forums would compel them to host all harmful but protected speech, thereby undermining their ability to moderate content effectively. Professor Bhagwat added that the analogy falters in today’s fragmented, ideologically sorted ecosystem, as “we’re moving toward multiple town squares.” Professor Douek went further, calling the town square idea more myth than reality and a “PR campaign” for platforms. Although Professor Douek acknowledged the harms of arbitrary deplatforming, she rejected the notion that access to any single platform is indispensable to free speech.
In closing, the panelists reflected on the future of speech online. Professor Bhagwat struck a sober note, fearing “retrenchment rather than reform,” as polarized politics erode consistent commitments to free expression. Professor Nunziato expressed optimism about the courts as institutional checks against executive overreach in coercion and jawboning cases. Professor Douek closed on a hopeful note: “A crossroads is different from a slippery slope,” she said, “it’s a place of choice and agency.” The challenge at this current crossroad, Professor Douek urged, is to choose the path that preserves both liberty and accountability in the digital public sphere.
This summary was authored by Natalie More, Member.