Case: 21-51178
Document: 00516474571
Page: 34
Date Filed: 09/16/2022
No. 21-51178
Third, Section 7 does not impose a content-based penalty on the
Platforms’ speech. Recall that the right-of-reply law in Miami Herald
burdened newspapers with the duty to publish a response column if they
published an article questioning the character or record of a political
candidate. 418 U.S. at 244. As the PG&E plurality explained, this imposed a
content-based penalty on the newspaper’s speech in two distinct senses:
First, the penalty was “triggered by a particular category of newspaper
speech”; and second, access “was awarded only to those who disagreed with
the newspaper’s views.” 475 U.S. at 13; see also id. at 14 (explaining that the
Commission’s order in PG&E was content-based in the second sense). Here,
by contrast, no category of Platform speech can trigger any additional duty—
or obviate an existing duty—under Section 7. And Section 7 does not create
a special privilege for those who disagree with the Platforms’ views. Cf. id. at
14 (billing envelope space was awarded only to a single entity formed to
oppose PG&E’s views). Rather, it gives the exact same protection to all
Platform users regardless of their viewpoint.
c.
The Platforms do not seriously dispute any of this. Instead, they argue
that Section 7 interferes with their speech by infringing their “right to
exercise editorial discretion.” They reason as follows. Premise one is that
“editorial discretion” is a separate, freestanding category of FirstAmendment-protected expression. Premise two is that the Platforms’
censorship efforts constitute “editorial discretion.” Conclusion: Section 7
burdens the Platforms’ First Amendment rights by obstructing their
censorship efforts.
Both premises in that syllogism are flawed. Premise one is faulty
because the Supreme Court’s cases do not carve out “editorial discretion”
as a special category of First-Amendment-protected expression. Instead, the
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