as Moody’s v. NetChoice Most pointed out that both parties focused on content primarily on Facebook and YouTube. Most focus equally on these primary feeds in a broad discussion of First Amendment principles, and as syndicated blogger Ilya points out, it leaves no doubt about the unconstitutionality of the Texas and Florida statutes that apply to them . Network selection These laws are not invalidated on their face because of uncertainty about how these regulations apply to other services, which are rarely, if ever, discussed in the brief below.
The article linked to by syndicated blogger Eugene in today’s 12:19 PM post may be the strongest argument in favor of the laws in Texas and Florida. Network selection (Lawyers for both states cited Eugene’s article during oral arguments.) Platforms could be treated like common operators so that regulation of user hosting would not involve the First Amendment. Alito’s opinion (which concurred with the remand decision but rejected the majority’s application of the First Amendment to the statute) generally agreed with Eugene’s reasoning, but the majority disagreed.
Eugene said, “Most No Deciding whether the First Amendment extends to many other features of a platform, such as a platform deciding whether to “de-platform” a user in some way to prevent readers from seeing a user’s posts even if they intentionally seek them out,” I think is Right. For platforms other than select platforms like Facebook and YouTube, I can easily imagine that a court might find that a platform like Gmail can’t deplatform anyone based on their opinions because Gmail doesn’t do that in the first place. express the purpose of the amendment.
Is there any argument Network selection Normative exclusion (i.e. de-platforming) user Are the main types of feeds that most people focus on not dealing with the First Amendment? I do not think so. The passage Ilya cites (and many others like it in the opinion) is very clear about the application of the First Amendment to these platforms. Beyond that, the logic that applies the First Amendment to excluding messages (and most people apparently do) also applies to excluding users. Platforms can exclude pro-KKK messages as part of their communications about their aversion to such messages. Likewise, excluding the Ku Klux Klan as a group or the Grand Wizard of the Klan as a person so that other users cannot see their posts would convey that it wants nothing to do with the Klan. As most people say,
For example, suppose a newspaper is Tighten The right of reply is granted to all but one candidate. It makes no difference; Florida [right-of-reply] Regulations still cannot change the newspaper’s policy.
As most have pointed out, these platforms rely on algorithms to enforce their exclusion criteria. The decision to implement an algorithm that excludes all messages related to the Ku Klux Klan (or the Kentucky Derby) would be bound by the First Amendment. If one of the ways they choose to implement exclusions is to exclude all information from the Grand Wizard of the Ku Klux Klan or the Kentucky Derby organization, they are still making editorial decisions that constitute speech for First Amendment purposes. We might object that their decision excludes more speech than we would like (what went wrong with the Kentucky Derby?), just as we might object to the parade organizers’ decision to Hurley or in newspapers Tighten. But that doesn’t change the fact that they are communicating by doing this.
Anyway, I guess Eugene and I will be discussing this in an upcoming webinar on these cases. See below for a look at the fireworks among law professors.
