Case: 21-51178
Document: 00516474571
Page: 33
Date Filed: 09/16/2022
No. 21-51178
547 U.S. at 63. By contrast, “space constraints on digital platforms are
practically nonexistent”—unlike with newspapers, cable companies, and
many of the other entities the Platforms invoke by analogy. Knight, 141 S. Ct.
at 1226 (Thomas, J., concurring). For this reason, the Platforms can host
users’ speech without giving up their power or their right to speak their own
message(s).
Second, the Platforms are free to say whatever they want to distance
themselves from the speech they host. The Supreme Court has been very
careful to limit forced-affiliation claims by speech hosts. After all, any speech
host could always object that its accommodation for speech might be
confused for a coerced endorsement of it. But the Court rejected that forcedaffiliation argument in PruneYard, where the shopping mall owner was not
required to affirm the pamphleteers’ expression in any way, and was “free to
publicly dissociate [himself] from the views of the speakers or handbillers.”
447 U.S. at 88. Similarly, in Rumsfeld, the law schools argued “that if they
treat military and nonmilitary recruiters alike . . . they could be viewed as
sending the message that they see nothing wrong with the military’s
policies.” 547 U.S. at 64–65. But the Supreme Court easily rejected this
argument, because “[n]othing about recruiting suggests that law schools
agree with any speech by recruiters, and nothing in the Solomon Amendment
restricts what the law schools may say about the military’s policies.” Id. at
65. Rather, to win a forced-affiliation claim, the speech host must show that
it’s “intimately connected with the communication” and hence cannot
dissociate itself from it. Hurley, 515 U.S. at 576. Here, the Platforms remain
free to expressly disavow, distance themselves from, or say whatever they
want about any expression they host. For example, Platforms can add
addenda or disclaimers—containing their own speech—to users’ posts. And
many of them already do this, thus dramatically underscoring that Section 7
prohibits none of their speech.
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