Document Type

Essay

Degree Name

Master of Laws

Abstract

This paper argues that the constitutional assumption that truth will prevail over falsehood in the marketplace of ideas has always depended on three structural preconditions. These conditions were: distributive parity for counter-speech, institutional segmentation of the information environment, and epistemic credibility signals that allowed non-expert audiences to distinguish authoritative from non-authoritative sources. Together, these conditions ensured that truth was granted a structural advantage sufficient to offset the harms of falsehood. Social media platforms have destroyed all of these conditions. The destruction is a consequence of an economic model organized around behavioral advertising and engagement maximization, which systematically amplifies disinformation over truth. The legal frameworks that previously disciplined disinformation have been rendered practically inoperable in this environment. Section 230 immunizes platforms from liability for the disinformation their users produce. Moody v. NetChoice constitutionalizes the algorithmic architecture that amplifies it. The existing content moderation measures, however resource-intensive, operate exclusively ex post. As such, none of them alter the ranking algorithm that gives disinformation its structural advantage.

This paper proposes a Pigouvian tax on the advertising revenue that platforms earn from engagement-optimized algorithms, which is the architectural feature that gives disinformation its structural advantage. Platforms that redesign their ranking algorithms to include epistemic quality signals, such as source credibility or institutional provenance, would qualify for a safe harbor and pay a reduced rate or no tax at all. The tax targets the architectural choice instead of the content. The safe harbor leaves the selection and design of epistemic signals entirely to the platform, subject to independent audit. Since the proposal does not regulate speech, it does not require the government to define truth, and survives First Amendment scrutiny under intermediate scrutiny as a content-neutral regulation of economic conduct. It prices an externality and allows the market to determine the response.

Disciplines

Constitutional Law | First Amendment | Law

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