Free Speech and Private Power: Function-by-Function Analysis and Permissible Nondiscrimination Rules
[I am serializing my short Harvard Law Review Forum essay titled “Free Speech and Private Power”, responding to the Harvard Law Review’s publication of Evelyn Douek & Genevieve Lakier’s excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter, mostly asking what the Court’s recent cases mean going forward, rather than trying to critique them.]
Sections I.A and I.B above also reflect the Court’s recognition that, in the words of Justice Jackson:
The question is not whether an entire category of corporations (like social media companies) or a particular entity (like Facebook) is generally engaged in expression …. [C]ourts must make sure they carefully parse not only what entities are regulated, but how the regulated activities actually function before deciding if the activity in question constitutes expression and therefore comes within the First Amendment’s ambit.
The same focus was fully embraced by the Moody majority. The majority noted “that some platforms, in at least some functions, are indeed engaged in expression.” It noted that lower courts must ask “as to every covered platform or function, whether there is an intrusion on protected editorial discretion.” And it acknowledged, applying a pre-social-media precedent:
Of course, an entity engaged in expressive activity when performing one function may not be when carrying out another. That is one lesson of FAIR. The Court ruled as it did because the law schools’ recruiting services were not engaged in expression. The case could not have been resolved on that ground if the regulation had affected what happened in law school classes instead.
[1.] Email and Direct Messaging.—In particular, when the Court raised the need to ask, “as to every covered … function,” whether the content moderation restrictions “intru[de] on protected editorial discretion,” it noted that:
[T]he answers might differ as between regulation of Facebook’s News Feed (considered in the courts below) and, say, its direct messaging service (not so considered). Curating a feed and transmitting direct messages, one might think, involve different levels of editorial choice, so that the one creates an expressive product and the other does not. If so, regulation of those diverse activities could well fall on different sides of the constitutional line.
Justice Barrett’s concurrence echoed this, reasoning that courts need to consider “whether and how specific functions—like feeds versus direct messaging—are inherently expressive.”
Other institutions have previously suggested that direct messaging functions, including email and text, should generally not be subject to broad content controls by the service providers. For instance, New York’s high court remarked, in rejecting any duty on the part of email systems to block defamatory messages, that an email system’s “role in transmitting
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