Journal of Free Speech Law: "Beyond the Editorial Analogy: First Amendment Protections for Platform Content Moderation After Moody v. NetChoice,"

by Kyle Langvardt & Alan Z. Rozenshtein.

The article is here; the Introduction:

Over the past several decades, a combination of a laissez-faire regulatory environment and Section 230's statutory protections for platform content-moderation decisions has mostly foreclosed the development of First Amendment doctrine on platform content moderation. But the conventional wisdom has been that the First Amendment would protect most platform operations even if this regulatory shield were stripped away. The simplest path to this conclusion follows what we call the "editorial analogy," which holds that a platform deciding what content to carry, remove, promote, or demote is in basically the same position—with the same robust First Amendment protections—as a newspaper editorial board considering which op-eds to carry.

While formally appealing, this analogy operates at such a high level of abstraction that one might just as plausibly characterize platforms as more akin to governments—institutions whose power over speech requires democratic checks rather than constitutional protection. These competing analogies point in opposite directions: one treats platforms as democracy-enhancing speakers deserving autonomy; the other as institutional censors warranting regulation.

A circuit split over which analogy to follow prompted the Supreme Court's decision last Term in Moody v. NetChoice, LLC. The Eleventh Circuit had invalidated Florida's content-moderation law as an unconstitutional interference with platforms' editorial discretion. The Fifth Circuit upheld Texas's similar law based on the traditional understanding that common carriers—in this case social platforms—are appropriately subject to anti-discrimination requirements.

The Court found both of these stories too tidy.

All the Justices agreed that some platform moderation decisions are "editorial" and speech-like in nature. Yet they also agreed that this protection might vary across platforms, services, and moderation techniques. Unable to resolve these nuances on a sparse record, the Court remanded for more detailed factual development about how these laws would actually operate.

While Moody can fairly be characterized as a punt—merely postponing hard constitutional questions—its very reluctance to embrace categorical analogies marks a significant shift. Simply by characterizing direct regulation of platform content moderation as a complex question that requires close, fact-specific analysis, Moody upsets tech litigants' basic strategy and suggests a more nuanced First Amendment jurisprudence than many expected. Moreover, the Justices' various opinions offer revealing glimpses of why traditional analogies fail to capture platforms' novel characteristics.

This Article examines Moody's implications for platform regulation. Part I traces the development of the First Amendment's protections for "editorial discretion" and the political controversies that prompted the state regulation. Part II analyzes the Justices' competing approaches. Part III explores Moody's immediate impact on litigation strategy, explaining how its skepticism towards facial challenges will reshape tech-industry resistance to regulation, while arguing that the decision leaves surprising room for carefully designed rules that can withstand more focused constitutional scrutiny. Part IV proposes moving beyond editorial analogies to focus on platforms' actual effects on user speech—an approach that we have endorsed elsewhere and that we believe better serves First Amendment values in the digital age.

Comments

[Brett Bellmore]

"The simplest path to this conclusion follows what we call the "editorial analogy," which holds that a platform deciding what content to carry, remove, promote, or demote is in basically the same position—with the same robust First Amendment protections—as a newspaper editorial board considering which op-eds to carry."

This would be fine, if Section 230's protection against liability for such content were removed, and the platforms were just as liable as newspapers are for op-eds. Then offer them restored liability protection if they relinquished that editorial control in favor of becoming common carriers.

You'd then get massive common carrier platforms with minimal moderation for actual illegal content, and, returning to the actual intent of Section 230, user selected 3rd party filters for anything beyond that.

And niche platforms that instead chose to engage in heavy moderation.

[David Nieporent]

This would be fine, if Section 230's protection against liability for such content were removed, and the platforms were just as liable as newspapers are for op-eds. Then offer them restored liability protection if they relinquished that editorial control in favor of becoming common carriers.

This is either incoherent or nonsensical or both. They already have liability protection for carrying other people's speech if they don't exercise any moderation. So you're offering them nothing. In exchange for them losing editorial control over their own property.

And you're still completely wrong about "the actual intent of Section 230."

[Brett Bellmore]

" They already have liability protection for carrying other people's speech if they don't exercise any moderation."

Yeah, the problem is that currently, due to over the top court interpretations of "or otherwise objectionable", they also have that protection if they moderate to the point of exercising full editorial control.

I'm saying they should be given back the original deal: Editorial control AND liability, or no editorial control and no liability.

[David Nieporent]

To be clear, there was never any "deal" here one way or the other. But if you want to repeal § 230 — which is what you're proposing — then why pretend you care if it's misinterpreted? (And once again: it's not being misinterpreted; that's what "otherwise objectionable" means.)

[Lee Moore]

I was wondering why this felt like wading through drying cement, so I did a word count.

It starts with a 35 word sentence, only 13 of which are monosyllables – the glory of the English language. There as many words with three or more syllables ! This is not how to write English, even if you are writing something nerdy. And you certainly don't want to cosh the reader right from the off.

I skimmed down a few posts to see how that Ukrainian peasant, EV, born on the steppe with his poor infant head stuffed with math, managed when writing a legal sentence - ie not just an intro.

The first I found was 33 words long and had 19 monosyllables. And only 7 words with three or more syllables. And it only goes on for 33 words because it includes an itemized list.

So the Ukrainian peasant wins it. By a mile.

C’mon guys, this is English not German.

[JoeFromtheBronx]

I wonder if the Trump Administration has done anything of 1A note.

[Stephen Lathrop]

What a mess of an article. Not totally worthless, but never showing sustained coherence. The authors begin with a mistake, and stick with it through thick and thick, to a dreary conclusion.

The mistake is a common one, made by many. It is failure to notice that 1A expressive freedom consists of two clauses, not one: as attention to history discloses, speech freedom and press freedom got recognized separately, not as bipolar manifestations of some, vaguely-mish-mashed value set, expressive freedom.

To protect with the press freedom clause a mere extension of personal expressive power was not what the founders did, or meant to do. They lived in an age which had come to recognize that the invention of newspaper publishing enabled an entirely new kind of expressive activity, with unprecedented power to advance both public insight, and public interest.

Publishing viewed that way was not merely personal expressive freedom generalized. It was a previously undreamed-of power to use collaborative activity to affect in new ways all manner of public policy questions, right down to the most pertinent of them: the particulars of how governments operated, moment by moment.

Before that, speech freedom had long been a practical reality for anyone capable to evade government focus. But never for everyone, and especially not for those whom governments sought to compel.

Thus, speech freedom had limits which the invention of collaborative institutional publishing could transcend. As America's founders discovered and proved, press freedom could openly defy government, and even revolutionize it.

As would-be journalists have rediscovered again and again, participation among allies to operate an institutional press is a force multiplier. It not only elevates the power of the journalist to new levels, it also creates previously unknown power to affect public life, for better, or for worse.

There are unmistakable instances where internet activity unmistakably is publishing, as shown by choice of methods, economic practices, and especially by activity to recruit and curate audiences to pay the costs of sustained publishing activities. Indeed, this OP targets the question of public policy to manage the largest publishers the world has ever seen.

For that public policy issue, the crucial question is not at all whether it is the scope of personal expressive liberty which gets better or worse. The question is instead whether a variously managed, multi-faceted publishing universe, which features a myriad of private publishers, will stay empowered to continue and improve public capacity to understand and confront government.

Plainly, existing public policies to manage internet publishing have left many unsatisfied. Giantistic platforms look like governments with powers of censorship. There is real risk they will turn out that way. Worried focus on personal expressive opportunity does nothing to address that risk. More the opposite.

It is time to pause the focus of discussion on speech freedom, and look instead for a time towards the press freedom challenge. That is the task to keep information about public life, and about government accountability, dispersed among a myriad of private publishers, characterized by mutually competing views and interests.

Do that first, and then turn to address the task to optimize individual expressive liberty. Think hard about ways to take full advantage of private expressive opportunities created by internet technology. Many will be forthcoming. The internet will continue in every application to deliver speed, scale, accessibility, and cost advantages better than anything seen previously. But none of that can be realized during a war for control of press freedom, with an eye to winning it by leveraging government power against a free private press.