Free Speech

Ash Bhagwat, "Do Platforms Have Editorial Rights?"

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More from the free speech and social media platforms symposium in the first issue of our Journal of Free Speech Law; you can read the whole article (by UC Davis law professor Ashutosh Bhagwat) here, but here's the abstract:

Many regulatory proposals have been advanced, and in some cases legislatively enacted, to restrict how social media platform owners control what content they host, refuse to host, display, and prioritize. These proposals include, among other things, imposing common carrier status on platforms (an approach endorsed by Justice Thomas in a recent separate opinion), requiring viewpoint-neutral content moderation policies, and restricting or conditioning platforms' Section 230 immunities. These proposals seek to restrict how social media platforms control the content that they host, refuse to host, display, and prioritize.

These proposals are in deep tension with the idea that platforms themselves have First Amendment rights to control what content is available or visible on their platforms—what I call editorial rights. In this article, I define and distinguish various kinds of First Amendment editorial rights. I then examine how, and to what extent, the courts have extended editorial rights to new communications technologies. I next turn to the specific question of internet platform editorial rights, concluding that social media platforms should indeed enjoy substantial editorial rights, though probably fewer than prototypical holders of editorial rights such as print newspapers. I conclude by considering whether current regulatory proposals are consistent with these editorial rights.