Paths to Reform

Work in progress

This case is under active development. All pages are being written, expanded, and fact-checked on an ongoing basis — content and coverage are subject to change.

The constraint landscape

Documented

Any regulatory approach to dominant social media platforms must navigate three legal constraints simultaneously:

1. The First Amendment. Whether platform curation decisions are protected speech determines whether compelled-carriage requirements survive constitutional scrutiny. This question is currently pending on remand from Moody v. NetChoice (2024).
2. The statutory classification of platforms. Congress placed internet services in the “information service” category under the Telecommunications Act of 1996, outside Title II common-carrier obligations. Reclassification requires either congressional action or a persuasive argument that the original classification was wrong.
3. Loper Bright (2024). Regulatory agencies cannot rely on broad delegations of authority to reclassify entities or impose new obligations without clear congressional authorisation. Any FCC-only approach must now demonstrate a much clearer statutory basis than it would have required before 2024.

Path 1: Section 230 amendment

Contested

Congress could amend 47 U.S.C. § 230 to condition the publisher-immunity shield on compliance with non-discrimination obligations for platforms above a defined scale threshold. Under this approach, a platform that moderates content based on viewpoint would lose its Section 230(c)(1) immunity; a platform that moderates based only on content type (illegal material, spam, explicit content) would retain it.

Several bills have been introduced along these lines, including the PACT Act, the EARN IT Act (focused on child safety rather than viewpoint), and proposals from members of both parties that would condition immunity on auditable transparency.

The First Amendment objection: if platform curation decisions are protected editorial speech (as platforms argue), Congress cannot condition a statutory benefit on the platform’s relinquishment of that speech. Courts would likely apply unconstitutional conditions doctrine to evaluate this. None of the proposed Section 230 reforms had passed Congress as of the end of the 118th Congress (January 2025).

Path 2: FCC reclassification

Contested

The FCC could attempt to reclassify dominant social media platforms as telecommunications carriers under Title II of the Communications Act, subjecting them to common-carrier non-discrimination obligations. This approach would mirror the FCC’s approach to broadband in its 2015 Open Internet Order.

Obstacles are substantial. The FCC’s jurisdiction extends to “communications,” which courts have interpreted to require some form of direct communications transmission. Social media platforms arguably provide an “information service” rather than a telecommunications service. The FCC’s broadband classification was vacated by the Sixth Circuit in January 2025 under Loper Bright analysis; a similar reclassification of social media would face the same or greater statutory ambiguity challenge. No FCC chairman has proposed this approach as of 2025.

Path 3: new federal legislation

Open

Congress could enact new legislation outside the Section 230 / Telecommunications Act framework, designating dominant social media platforms as common carriers by name and imposing non-discrimination obligations directly. This approach would not require FCC reclassification (Congress can create a new regulatory regime) and would give courts a clear textual hook rather than a reclassification argument.

A well-crafted statute could also attempt to resolve the First Amendment question prospectively by limiting non-discrimination obligations to a defined category of platform conduct (access decisions: deplatforming, demonetisation) while leaving algorithmic curation protected. Whether this line-drawing survives First Amendment review is uncertain; it would depend on how courts resolve the editorial-discretion question on remand from Moody v. NetChoice.

No such legislation had passed as of early 2026. Bipartisan support for some form of platform accountability legislation has been expressed in multiple congressional sessions, but specific proposals have consistently failed to advance past committee stage.

Path 4: antitrust structural remedies

Contested

If First Amendment limits prevent must-carry obligations across the board, antitrust law may provide an alternative mechanism. Rather than requiring existing platforms to carry content they would prefer to exclude, antitrust remedies could target the structural conditions that give a small number of platforms infrastructure-level power.

Structural remedies could include:

• Divestiture of vertically integrated acquisition targets (e.g., requiring a social media network to divest platforms acquired after a certain date or above a certain market-share threshold).
• Interoperability requirements mandating that dominant platforms provide APIs allowing third-party services to exchange messages with their users — reducing the network-effect lock-in that makes departure from the platform costly.
• Data-portability obligations enabling users to transfer their social graphs and content history to competing services, reducing switching costs.

The Federal Trade Commission filed suit against a major social networking company in December 2020, alleging illegal acquisition of Instagram and WhatsApp to neutralise competitive threats (FTC v. Meta Platforms, Inc.). The defendant prevailed at trial; a federal judge ruled in its favour in November 2025. Antitrust remedies operate on a longer timeline than regulatory designation and do not directly address the non-discrimination question; they address market structure that enables non-competitive conduct.

Path 5: EU Digital Markets Act model

Documented

The European Union’s Digital Markets Act (DMA), which entered into force in November 2022 and became generally applicable in May 2023 (with gatekeeper-specific obligations taking effect March 2024), provides a working model for platform-specific regulation distinct from both traditional antitrust and common-carrier frameworks. The DMA designates certain platforms as “gatekeepers” and imposes specific obligations including:

• Interoperability requirements for messaging services
• Data portability for end users
• Prohibitions on self-preferencing in search results and app stores
• Advance notification requirements for acquisitions

The DMA avoids the First Amendment issue because it focuses on structural market conduct (access to data, interoperability, self-preferencing) rather than on the content of individual moderation decisions. It does not require platforms to carry specific speech; it requires them to operate the structural infrastructure of the platform on non-discriminatory terms.

Whether the United States would enact domestic legislation modelled on the DMA is an open political question. Bills proposing similar interoperability and portability requirements have been introduced in the Senate (including the American Innovation and Choice Online Act and the Open App Markets Act) but had not passed as of early 2026. The DMA approach does not resolve the non-discrimination question that animated the Texas and Florida statutes; it addresses a different dimension of infrastructure power.

The baseline question

Open

All five paths share a common predicate: a determination that existing law does not adequately address the structural position of dominant social media platforms in modern public discourse. Whether that determination is correct, and what specifically is inadequate about the current framework, is contested in the legal and policy literature. This case documents the structural gap and the available mechanisms; it does not adjudicate the normative debate about whether any reform is warranted.