Cite as: 603 U. S. ____ (2024)
17
Opinion of the Court
Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 547 U. S. 47 (2006) (FAIR), the Court reiterated that a
First Amendment claim will not succeed when the entity
objecting to hosting third-party speech is not itself engaged
in expression. The statute at issue required law schools to
allow the military to participate in on-campus recruiting.
The Court held that the schools had no First Amendment
right to exclude the military based on its hiring policies, because the schools “are not speaking when they host interviews.” Id., at 64. Or stated again, with reference to the
just-described precedents: Because a “law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper,” the required
“accommodation of a military recruiter[ ]” did not “interfere
with any message of the school.” Ibid.
That is a slew of individual cases, so consider three general points to wrap up. Not coincidentally, they will figure
in the upcoming discussion of the First Amendment problems the statutes at issue here likely present as to Facebook’s News Feed and similar products.
First, the First Amendment offers protection when an entity engaging in expressive activity, including compiling
and curating others’ speech, is directed to accommodate
messages it would prefer to exclude. “[T]he editorial function itself is an aspect of speech.” Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 737
(1996) (plurality opinion). Or said just a bit differently: An
entity “exercis[ing] editorial discretion in the selection and
presentation” of content is “engage[d] in speech activity.”
Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666,
674 (1998). And that is as true when the content comes
from third parties as when it does not. (Again, think of a
newspaper opinion page or, if you prefer, a parade.) Deciding on the third-party speech that will be included in or excluded from a compilation—and then organizing and presenting the included items—is expressive activity of its