Case: 21-51178
Document: 00516474571
Page: 32
Date Filed: 09/16/2022
No. 21-51178
speech (whether on an individualized basis or in its terms of service) stating
that the Platform chose to censor the speech and explaining how the
censorship expresses the Platform’s views. Otherwise, as in Rumsfeld, an
observer might just as easily infer that the user himself deleted the post and
chose to speak elsewhere. In terms of the conduct’s inherent expressiveness,
there is simply no plausible way to distinguish the targeted denial of access to
only military recruiters in Rumsfeld from the viewpoint-based censorship
regulated by HB 20. Section 7 does not compel the Platforms to speak.
b.
Nor does it do anything to prohibit the Platforms from speaking.
That’s for three independent reasons.
First, the Platforms have virtually unlimited space for speech, so
Section 7’s hosting requirement does nothing to prohibit the Platforms from
saying what they want to say. Contrariwise, both Miami Herald and PG&E
involved “forum[s] of inherently limited scope”—a newspaper and
newsletter with significant space constraints. PG&E, 475 U.S. at 24
(Marshall, J., concurring in the judgment). So when the State appropriated
space in the newspaper or newsletter for a third party’s use, it necessarily
curtailed the owner’s ability to speak in its own forum. See Miami Herald, 418
U.S. at 256 (“[T]he compelled printing . . . tak[es] up space that could be
devoted to other material the newspaper may have preferred to print.”); see
also Rumsfeld, 547 U.S. at 64 (explaining the results in Miami Herald and
PG&E in these terms). Accordingly, when a “speaker’s own message [is]
affected by the speech it [is] forced to accommodate,” the speaker may
invoke the First Amendment to protect their own ability to speak. Rumsfeld,
Supreme Court’s reasoning in Rumsfeld. Moreover, the Platforms never suggest that their
censorship could “convey a particularized message.” See Johnson, 491 U.S. at 404.
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