Online must-carry in comparative perspective

Social media platforms claim that when they apply their content moderation policies to exclude or limit the reach of users or posts that violate those rules, they are engaging in expression. While the 2024 NetChoice case commits the current US Supreme Court to a First Amendment methodology that favors the platforms’ expressive right to moderate user content over users’ rights to access those platforms for their own speech, the horizontal approach to constitutional rights recognized by European and international courts provides the basis for a more nuanced approach that takes conflicts between property and power into fuller account. Comparing the two approaches highlights fundamental distinctions with respect to what constitutes a “public” forum for speech. It also gives an opportunity to consider where in the hierarchy of rights expressive-based rights should fall.