Case: 21-51178
Document: 00516474571
Page: 30
Date Filed: 09/16/2022
No. 21-51178
It is no answer to say, as the Platforms do, that an observer might
construe the act of hosting speech as an expression of support for its message.
That was the precise contention the Court rejected in both PruneYard and
Rumsfeld: Neither the shopping mall nor the law schools wanted to endorse
the hosted speech. The Rumsfeld Court dismissed that concern out of hand
because even schoolchildren know the difference between sponsoring speech
and allowing it. See 547 U.S. at 65 (citing Bd. of Educ. of Westside Cmty. Schs.
(Dist. 66) v. Mergens, 496 U.S. 226, 250 (1990)). That’s precisely why even
the Platforms concede that “objective observer[s]” would not “conclude
that [Platforms] intended . . . to promote terrorism” when they host terrorist
content. Motion to Dismiss at 23, Gonzalez v. Twitter, Inc., No. 4:16-cv-03282
(N.D. Cal. Jan. 13, 2017).
Recognizing that their compelled-speech analogy to newspapers is a
stretch, the Platforms turn to parades and the Hurley case. The Platforms
contend that Section 7 forces them to host speech that’s inconsistent with
their corporate “values.” But of course, the Platforms do not contend that
they carefully curate users’ speech the way a parade sponsor or composer
“selects . . . expressive units . . . from potential participants.” Hurley, 515
U.S. at 568. Nor do they suggest that they are “intimately connected with
the communication” Section 7 requires them to host. Id. at 576. The
Platforms instead contend that their censorship is protected because Hurley
creates a freewheeling right for speech hosts to discriminate against messages
they don’t like.
Hurley said nothing of the sort. The Court instead carefully limited its
holding to a speech host (like a parade organizer or composer) who is
“intimately connected” with the hosted speech (like a parade or a
No. 3:16-cv-00213 (N.D. Cal. Apr. 6, 2016) (stating Twitter is “a service provider acting
as a conduit for huge quantities of third-party speech”).
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