From Gods to Google

The First Amendment has become a significant barrier to sensible technology regulation. The conventional explanation for this is the Court\u27s deregulatory turn in free-speech law. But the Lochnerization story is incomplete. The Court\u27s profound solicitude for religious speakers plays a central role in the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend to technology firms. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies. This Feature draws the doctrinal through line from gods to Google. We first sketch the basic contours of today\u27s technology regulation and explain why it is vulnerable to First Amendment challenge. We then give an overview of free-speech case law that develops what we call the oppressed-speaker paradigm. The Roberts Court has been motivated not just by free-market zeal but also by the trope of a persecuted religious minority standing fast in the face of a domineering and majoritarian regulator. We pay special attention to 303 Creative LLC v. Elenis, identifying several doctrinal defects likely to have an impact on technology regulation. Technology firms have wasted no time in relying on 303 Creative to challenge a variety of new laws—most notably in last Term\u27s Moody v. NetChoice, LLC, which involved free-speech challenges to the regulation of internet platforms. The Court in Moody, however, sidestepped or ignored the most serious implications of 303 Creative. It may be tempting to think the Court could reconcile the two cases by distinguishing religious speakers from platforms. But doing so would impermissibly enshrine viewpoint and speaker discrimination into free-speech law. The Court thus confronts a conundrum of its own making: either (1) apply the principles developed for religious speakers to new technologies and expose a wide range of technology policy tools to constitutional attack, or (2) create special rules for religious speakers, which would violate the Court\u27s own notions about viewpoint and speaker neutrality. A principled resolution of this conflict cannot be that free-speech law affords special protection for religious speakers. The Roberts Court must find legitimate and coherent limiting principles for the First Amendment landmines it has laid

Corporate Climate Targets: Between Science and Climate Washing

The use of corporate climate targets has exploded in recent years. Over three thousand corporations, including the largest and most profitable in the world, have adopted corporate climate targets as commitments to align their actions with climate science and the Paris Agreement. However, the broad adoption of these targets raises important questions: are these commitments truly aligned with science in the way they are advertised, or do they raise “climate washing” concerns, i.e., do they exaggerate the benefits and significance of the climate targets? This Article investigates the role that science actually plays within targets, and explores potential theories of liability when commitments turn out to be exaggerated. The Article’s analysis focuses on corporate targets issued as part of the Science Based Targets Initiative (SBTi). SBTi is a standard-setting body that provides a detailed rule framework for the setting of corporate climate targets. The nonprofit has recently experienced spectacular growth, with companies representing some $38 trillion –one third of global market capitalization—now committing to targets under its seal. The Article finds that the role of science in SBTi’s rule framework is more complex than it first appears. SBTi rules employ a scientific concept known as the global carbon budget, but scientific knowledge cannot translate that carbon budget, which is indeed global, to company-level targets. When SBTi provides that translation in its rules, it is not merely deriving targets from science, but exercising considerable discretion. That discretion, and its distributive implications, are currently under-appreciated in both academia and practice. Building on this analysis, the Article turns to the issue of potential liability for climate washing in some companies’ SBTi targets. The key, it argues, is to move beyond the instinct that a target can only amount to climate washing if it is in direct conflict with science. Because science itself cannot determine appropriate company-level targets, it is necessary to identify alternative ways in which a given corporate target is problematic or misleading. To this effect, the Article suggests three avenues through which advocates may pursue climate washing liability. These include companies in non-compliance with SBTi criteria, statements that mislead consumer perception, and SBTi criteria that depart from expert consensus

Beyond Discrimination: Market Humiliation and Private Law

Market humiliation is a corrosive relational process to which the law repeatedly fails to respond due to the law’s heavy reliance on the discrimination paradigm. In this process, providers of market resources, from housing and work to goods and services, use their powers to reject or mistreat other market users due to their identities. They thus cause users severe harm and deprive them of dignified participation in the marketplace. The problem has recently reached a peak. The discussion in 303 Creative v. Elenis indicates that the Supreme Court might legitimize market humiliation by granting private providers broad free speech exemptions from nondiscrimination laws. This Article is the first to offer a rigorous analysis of the oral arguments of this pending case. Its troubling findings show why deciding such a critical issue based on abstract preemptive litigation—designed to eliminate those who would be humiliated from the discussion—would be utterly wrong and should be avoided. But the Article not only sounds an alarm in a moment of crisis; it also develops a novel solution. It is time to go beyond discrimination, turning to private law and utilizing its tools to fight market humiliation. The proposed shift requiresmaking more room within private law for a duty not to humiliate. This Article recommends how to do so and what legal reforms of doctrines and remedies are needed. Following these recommendations can empower people humiliated in the marketplace to take action and seek remedies from those who mistreated them. Private law has unique expressive, normative, and remedial powers that can fill the normative void created under nondiscrimination laws. When the market’s inclusiveness is under attack, one salient response is to develop additional ways to secure market citizenship for all

Data Controllers as Data Fiduciaries: Theory, Definitions & Burdens of Proof

As more U.S. states have begun to pass consumer privacy laws, there are growing calls for federal data privacy regulation to ease the burden of compliance with various, sometimes conflicting, state laws. However, scholars and lawmakers are divided on how best to balance robust privacy protections with privacy laws to which businesses can realistically comply. Two prominent regulatory models have emerged from scholarly debate. The Rights/Obligations Model grants consumers various rights and imposes obligations on businesses. This model has been trending in U.S. states, which have mirrored language from the European Union’s General Data Protection Regulation (GDPR) by imposing different obligations on “data controllers” and “data processors.” However, there are shortcomings to this model that limit consumer rights and their ability to vindicate those rights. The Fiduciary Model has also received attention from lawmakers and scholars as an alternative model of regulation. The Fiduciary Model addresses gaps in the Rights/Obligations Model, but prominent critics have voiced skepticism about the workability of the Fiduciary Model. This paper’s contributions are threefold. First, this paper examines the distinction between “data controllers” and “data processors” in the GDPR and whether those terms are likely to apply in a functionally similar way in new U.S. state consumer privacy laws. As companies strategize about how tocomply with laws from a multitude of jurisdictions—and as states incorporate identical language into their own laws—understanding the similarities and differences between how such laws are applied will be crucial. Second, this paper furthers the debate about the workability of the Fiduciary Model by proposing that “data controllers,” as defined in the GDPR and U.S. state laws, should be considered “data fiduciaries.” This definition offers two benefits: (1) defining data fiduciaries as data controllers provides a workable definition that corresponds with fiduciary theory, and (2) harmonizing U.S. and GDPR law. Finally, this paper will argue that companies subject to state consumer privacy laws should be considered “data controllers” by default and bear the burden of rebutting this presumption. This presumption reinforces the substantive policy behind consumer privacy law, accounts for the probability that parties violating consumer privacy laws will most likely be data controllers, and allocates the burden to the party with superior access to the evidence