Free Speech and Private Power: Function-by-Function Analysis and Permissible Nondiscrimination Rules

[I am serializing my short Harvard Law Review Forum essay titled "Free Speech and Private Power", responding to the Harvard Law Review's publication of Evelyn Douek & Genevieve Lakier's excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter, mostly asking what the Court's recent cases mean going forward, rather than trying to critique them.]

Sections I.A and I.B above also reflect the Court's recognition that, in the words of Justice Jackson:

The question is not whether an entire category of corporations (like social media companies) or a particular entity (like Facebook) is generally engaged in expression …. [C]ourts must make sure they carefully parse not only what entities are regulated, but how the regulated activities actually function before deciding if the activity in question constitutes expression and therefore comes within the First Amendment's ambit.

The same focus was fully embraced by the Moody majority. The majority noted "that some platforms, in at least some functions, are indeed engaged in expression." It noted that lower courts must ask "as to every covered platform or function, whether there is an intrusion on protected editorial discretion." And it acknowledged, applying a pre-social-media precedent:

Of course, an entity engaged in expressive activity when performing one function may not be when carrying out another. That is one lesson of FAIR. The Court ruled as it did because the law schools' recruiting services were not engaged in expression. The case could not have been resolved on that ground if the regulation had affected what happened in law school classes instead.

[1.] Email and Direct Messaging.—In particular, when the Court raised the need to ask, "as to every covered … function," whether the content moderation restrictions "intru[de] on protected editorial discretion," it noted that:

[T]he answers might differ as between regulation of Facebook's News Feed (considered in the courts below) and, say, its direct messaging service (not so considered). Curating a feed and transmitting direct messages, one might think, involve different levels of editorial choice, so that the one creates an expressive product and the other does not. If so, regulation of those diverse activities could well fall on different sides of the constitutional line.

Justice Barrett's concurrence echoed this, reasoning that courts need to consider "whether and how specific functions—like feeds versus direct messaging—are inherently expressive."

Other institutions have previously suggested that direct messaging functions, including email and text, should generally not be subject to broad content controls by the service providers. For instance, New York's high court remarked, in rejecting any duty on the part of email systems to block defamatory messages, that an email system's "role in transmitting e-mail is akin to that of a telephone company, which one neither wants nor expects to superintend the content of its subscribers' conversations." Likewise, though the FCC has held phone companies are not common carriers as to text messaging, the rationale for that decision was the need to block unwanted robotexting—and as to messages among willing customers, a concurring opinion assured readers that "[t]omorrow, like today, our text messages will go through." State laws, whether the existing Texas and Florida laws or potential future laws, that seek to act on these concerns may well be allowed to do so.

Nor would the interest in restricting viewpoint discrimination as to direct messaging be the forbidden interest "in improving, or better balancing, the marketplace of ideas." Rather, it would be the interest in allowing people to better communicate with each other, free from certain kinds of discrimination imposed by platforms—an interest similar to the one that has historically justified the government's common carrier mandates imposed on telegraph and telephone communications, or antitrust access rules to important resources such as wire reports.

[2.] Removal of Posts.—The Court's decision also didn't resolve whether state law may ban viewpoint-discriminatory removals of posts or of entire user accounts—removals that keep the posts or accounts from being visible even individually, by people who want to go to that Facebook page, X feed, WordPress blog, and the like. To be sure, the Court mentioned the platforms' ""removing" posts, as part of its description of what platforms do. But the Court's specific holding, and the heart of its First Amendment analysis, turned on platforms' ability to control their curated feeds, not to remove individual posts. The Court also expressly reserved the question whether platforms can exclude people based on their off-platform views:

In addition to barring "censor[ship]" of "expression," the law bars "censor [ship]" of people. More specifically, it prohibits taking the designated " "censor[ial]" actions against any "user" based on his "viewpoint," regardless of whether that "viewpoint is expressed on a social media platform." Because the Fifth Circuit did not focus on that provision, instead confining its analysis to the law's ban on "censor[ing]" a "user's expression" on the platform, we do the same.

A law that leaves platforms free to exclude posts from curated feeds, but forbids them from removing users or even posts outright, might thus remain constitutional. Indeed, the rule upheld in Rumsfeld seems consistent with that: Congress was allowed to insist that universities not remove or otherwise exclude military recruiters, but presumably, universities would have remained free to choose whether to include military recruiters in any "Recommended Recruiters" list that they would choose to compile.

To be sure, the Court's discussion of Turner Broadcasting System, Inc. v. FCC may suggest broad platform authority to decide whom to exclude. The Court cited Turner as presumptively protecting cable systems' right to "exercis[e] editorial discretion over which stations or programs to include in [their] repertoire," free of government attempts to "forc [e] the operators to carry stations they would not otherwise have chosen." "A private party's collection of third-party content into a single speech product (the operators' 'repertoire' of programming) is itself expressive, and intrusion into that activity must be specially justified under the First Amendment."

Yet this should be read, I think, in light of the Turner Court's conclusion that platforms' interest in "editorial control" was insufficient to invalidate the must-carry mandate, precisely because the mandate wouldn't affect the content of the cable systems' speech: The Court reasoned that there was no unconstitutional speech compulsion because there was "no content-based penalty" on speech or evidence "that must-carry will force cable operators to alter their own messages to respond to the broadcast programming they are required to carry" (though the Court also relied on cable systems' ""bottleneck … control" over what TV channels can come into the home).

Likewise, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., the Court distinguished parades from cable systems on the grounds that:

Unlike the programming offered on various channels by a cable network, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience.

When a user seeks to directly access a Facebook page, WordPress blog, or X account—as opposed to seeking out a platform-curated feed—it is even more clear that the user is seeking "individual, unrelated" items "that happen to be transmitted together for individual selection by members of the audience." And even if a cable system is seen as providing a "repertoire" of a few dozen channels (common in 1994), it's not clear that the millions of pages, blogs, or accounts hosted on Facebook, WordPress, or X are those platforms' "repertoire."

[3.] Net Neutrality.—Moody also seems to bear on another important form of regulation, which goes beyond social media platforms: net neutrality rules that limit internet service providers' (ISPs') ability to favor or disfavor certain kinds of content traffic on their systems. Justice Kavanaugh, when he was a D.C. Circuit judge, argued that net neutrality rules violated the compelled speech doctrine, analogizing the rules to impermissible restrictions on the "editorial discretion" of newspapers, bookstores, newsstands, and cable operators. "The First Amendment," Judge Kavanaugh argued, "affords editors and speakers the right not to speak and not to carry or favor unwanted speech of others, at least absent sufficient governmental justification for infringing on that right," and suggested that ISPs necessarily qualify as such ""editors and speakers."

But under Moody, compulsions to carry speech are unconstitutional "if, though only if, the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt." And Moody appears to reaffirm PruneYard and Rumsfeld, which make clear that sometimes entities may indeed be compelled to carry the unwanted speech of others—including when those entities (such as universities) engage in a great deal of speech in their various other functions.

To be sure, Justice Kavanaugh's joining the Moody majority might mean he sees the Moody rule as consistent with his views about net neutrality—perhaps on the theory that net neutrality rules do ""alter or disrupt" service providers' "own expressive activity," in a way that the rules in PruneYard and Rumsfeld didn't alter or disrupt the property owners' expressive activities. For instance, some might argue that ISPs' favoring certain kinds of traffic (such as Netflix video streaming) over other traffic is indeed the ISPs' "own expressive activity," and thus that prohibiting such favoring would alter or disrupt that expressive activity. But following Moody, a court needs to be persuaded that providing faster transmission speeds to some business partners is indeed the ISP's "own expressive activity."