Case: 21-51178
Document: 00516474571
Page: 20
Date Filed: 09/16/2022
No. 21-51178
Supreme Court doctrine. And under that doctrine, the Platforms contend,
Section 7 somehow burdens their right to speak. How so, you might wonder?
Section 7 does nothing to prohibit the Platforms from saying whatever they
want to say in whatever way they want to say it. Well, the Platforms contend,
when a user says something using one of the Platforms, the act of hosting (or
rejecting) that speech is the Platforms’ own protected speech. Thus, the
Platforms contend, Supreme Court doctrine affords them a sort of
constitutional privilege to eliminate speech that offends the Platforms’
censors.
We reject the Platforms’ efforts to reframe their censorship as speech.
It is undisputed that the Platforms want to eliminate speech—not promote
or protect it. And no amount of doctrinal gymnastics can turn the First
Amendment’s protections for free speech into protections for free censoring.
We (1) explain the relevant doctrine and Supreme Court precedent. Then we
(2) hold this precedent forecloses the Platforms’ argument that Section 7 is
unconstitutional.
1.
Supreme Court precedent instructs that the freedom of speech
includes “the right to refrain from speaking at all.” Wooley v. Maynard, 430
U.S. 705, 714 (1977); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S.
624, 642 (1943). So the State may not force a private speaker to speak
someone’s else message. See Wooley, 430 U.S. at 714.
But the State can regulate conduct in a way that requires private
entities to host, transmit, or otherwise facilitate speech. Were it otherwise,
no government could impose nondiscrimination requirements on, say,
telephone companies or shipping services. But see 47 U.S.C. § 202(a)
(prohibiting telecommunications common carriers from “mak[ing] any
unjust or unreasonable discrimination in charges, practices, classifications,
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