Taking the constitutional significance of social media seriously

Abstract This essay examines two edited volumes that address the global debate over government regulation of social media platforms, highlighting the contrasting approaches developed within European and American legal traditions. Both works recognize the profound impact of social media on information dissemination, communication rules, and power dynamics, which pose serious challenges for the governance of online speech. Constitutionalising Social Media (by European scholars) advances a comprehensive theory of how platforms should comply with constitutional principles, proposing frameworks for user rights protection and government–platform co-regulation, supported by comparative case studies. By contrast, Social Media, Freedom of Speech and the Future of Our Democracy focuses on US free speech controversies, interrogating the constraints imposed by First Amendment jurisprudence and section 230 of the Communications Decency Act—both of which entrench the power of private platforms. The divergence in themes and arguments between the two volumes underscores deeper structural differences between American and European understandings of fundamental rights and regulatory authority. Within the European legal order, states possess the capacity to impose obligations on digital platforms to safeguard users’ rights, thereby enabling normative debates on digital constitutionalism and models of co‑regulation. In the United States, by contrast, the transplantation of analogous reforms is constrained by foundational legal doctrines—notably the state action doctrine, constitutional protections of press freedom, and the immunities conferred by section 230—which collectively restrict the permissible scope of regulatory intervention. Although neither volume engages directly with the EU Digital Services Act or Artificial Intelligence Act, both offer valuable conceptual insights for evaluating the broader regulatory frameworks within which these instruments are situated.