Case: 21-51178
Document: 00516474571
Page: 31
Date Filed: 09/16/2022
No. 21-51178
symphony). Ibid. And the Platforms are nothing like such hosts. They don’t
pick content to “mak[e] some sort of collective point,” even an abstract one
like “what merits celebration on [St. Patrick’s] day.” Id. at 568, 574. Rather,
the Platforms permit any user who agrees to their boilerplate terms of service
to communicate on any topic, at any time, and for any reason. And as noted
above, virtually none of this content is meaningfully reviewed or edited in any
way.
Nor can the Platforms point to the content they do censor and claim
that makes them akin to parade organizers. In Rumsfeld, for example, the law
schools argued that their denial of access to military recruiters was protected
expressive conduct because it “expressed” the schools’ disagreement with
the military. 547 U.S. at 66. But the Court held that the denial of access was
not inherently expressive, because such conduct would only be understood as
expressive in light of the law schools’ speech explaining it. See ibid.
Otherwise, observers wouldn’t know that the denial of access stemmed from
an ideological disagreement—they might instead conclude, for example, that
“the military recruiters decided for reasons of their own that they would
rather interview someplace else.” Ibid.
The same reasoning applies here. 14 If a Platform censors a user’s post,
the expressive quality of that censorship arises only from the Platform’s
14
To be clear, unlike in Rumsfeld, the Platforms in this case never argue that their
acts of censorship constitute “expressive conduct.” Cf., e.g., Texas v. Johnson, 491 U.S.
397, 404 (1989) (noting that expressive conduct may be protected by the First Amendment
if the actor both has “an intent to convey a particularized message” and “the likelihood
[is] great that the message would be understood by those who viewed it” (quotation
omitted)). In fact, the phrase “expressive conduct” never even appears in their brief before
our court. Compare infra at 82 n.41 (noting that the Platforms made such an argument
before the Eleventh Circuit). But to the extent any such argument is latent in their reliance
on Hurley or their claim of protected “editorial discretion,” it’s plainly foreclosed by the
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