Case: 21-51178
Document: 00516474571
Page: 36
Date Filed: 09/16/2022
No. 21-51178
or interferes with their speech. Of course, how the Platforms do or don’t
exercise editorial control is relevant to this inquiry, as it was in Miami Herald
and Turner I. But the Platforms can’t just shout “editorial discretion!” and
declare victory. 16
Premise two of the Platforms’ syllogism is also faulty. Even assuming
“editorial discretion” is a freestanding category of First-Amendmentprotected expression, the Platforms’ censorship doesn’t qualify. Curiously,
the Platforms never define what they mean by “editorial discretion.”
(Perhaps this casts further doubt on the wisdom of recognizing editorial
discretion as a separate category of First-Amendment-protected expression.)
Instead, they simply assert that they exercise protected editorial discretion
because they censor some of the content posted to their Platforms and use
sophisticated algorithms to arrange and present the rest of it. But whatever
the outer bounds of any protected editorial discretion might be, the
Platforms’ censorship falls outside it. That’s for two independent reasons.
First, an entity that exercises “editorial discretion” accepts
reputational and legal responsibility for the content it edits. In the newspaper
context, for instance, the Court has explained that the role of “editors and
16
Our esteemed colleague in dissent makes a similar argument with a different
label. The dissent reads Miami Herald to protect “two levels of publisher speech”: the
published speech itself as well as “the selection process” (or “publishing process”) used
to choose that speech. Post, at 5–6, 11. And it concludes that Section 7 impermissibly
interferes with the Platforms’ publishing process. Id. at 11.
It’s of course true that the right to speak generally entails the right to select what
to speak. But asserting that Section 7 obstructs the Platforms’ “selection process” begs the
question whether the Platforms’ censorship is protected speech at all. If it’s not, then
there’s no First Amendment right for censors to select their targets—just as there’s no
First Amendment right for law schools to select their recruiters, no First Amendment right
for shopping malls to select their pamphleteers, and no First Amendment right for
telephone companies to select which calls to drop.
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