The question of when and how the First Amendment editorial privilege applies to internet platforms deserves greater scrutiny. Section 230, the statute that grants immunity to online platforms from liability for content posted by other parties on their sites, has largely precluded sophisticated debate in court about platform First Amendment rights. If courts even reach this issue—and they usually do not, since judges tend to prefer to resolve disputes on statutory grounds—they address it in passing or in a conclusory manner, without much nuance.¹ With Section 230 reform a top legislative priority, Congress seems likely to amend the statute. In response to these changes, platforms are likely to turn to First Amendment defenses even more than they have in the past.² With this change on the horizon, this Article directs scholarly attention to questions courts must likely soon address directly: whether the editorial privilege should remain the same for online platforms as print news, and whether all online platforms and their decisions should be seen equally as editors or editing.

This Article’s overall argument is simple: the basic qualification for editorial protection does not need to change in an online context. The editorial privilege protects the exercise of selection over the speech of others—curating speech. When platforms exercise selection over speech, they are protected as editors. This Article makes six further specific points about editorial privilege in the online context. First, the role that a platform is playing in any given moment should determine whether editorial protections operate—a simple, but so far underappreciated, point. The fact that an internet platform exercises selection over speech at one moment or on one part of its site does not mean it does so in all instances. Second, no constitutional reason exists to exempt online platforms from the carve-outs for low-value speech from editorial privilege protections. Section 230, of course, does offer statutory immunity to platforms for hosting or republishing low-value speech when the information is provided by another “information content provider.”³ This difference remains one of the most compelling arguments for retaining Section 230. Third, the wholesale (algorithmic) or retail nature of editorial decision-making should not matter to an editorial judgment analysis online; the method of selection should not change the constitutional protection available. Fourth, the targeted nature of much of online advertising should not merit online advertising greater First Amendment protection, despite potential arguments to the contrary. Fifth, under current law, competition considerations do not affect whether editorial privilege applies, an important consideration for ongoing debates about applying antitrust law to platforms. Sixth, when platforms cede control to users over particular content decisions, users should have a duty to mitigate damages before bringing suit over low-value speech.

This general argument and six specific observations are what emerge from current doctrine. The extent to which any of these constitutional outcomes is troubling should motivate statutory fixes. Indeed, where constitutional protections are lacking (rather than explicitly limited) is exactly where legislators have leeway to add statutory protections. That said, conversations about the gap between constitutional and statutory protections for platforms are increasingly difficult to have within the internet community, and with members of the public, as Section 230 becomes more politicized.⁴ Scholars and advocates tend to fall into two camps. The first argues that Section 230 protections are superior to the protections of the First Amendment and that we should direct our efforts at preserving Section 230.⁵ The second camp views editorial protections as inapplicable to platform decision making: platforms are more conduits of speech than constitutional speakers in their own right.⁶ This Article creates a space in between these two poles and builds out an analytical structure for thinking about platform editorial privilege that is not all-or-nothing. This Article is not a referendum on whether Section 230 is better than the First Amendment—indeed, the author is overall fond of Section 230. Rather, it is an attempt to bring an analytical framework to a topic that will likely be before the courts sooner rather than later and may very well inform further debates about the role of statutory protections for internet platforms.⁷

This Article fills a gap in existing academic literature, which has not yet robustly discussed the contours of the editorial privilege as applied to internet platforms.⁸ Several scholars have made elegant cases for extending First Amendment rights, writ broadly, to search engines.⁹ Other pieces argue against the application of the First Amendment to platforms, viewing platforms instead as neutral conduits of information that should receive lesser First Amendment protections.¹⁰ Other relevant scholarship focuses more on the First Amendment-versus-Section-230 debate or is anchored primarily in internal debates about Section 230 itself.¹¹ Yet, these articles do not discuss at length what a constitutional editorial privilege built for the internet might look like.¹² Furthermore, editorial privilege as a concept has not received extensive scholarly attention since Robert Bezanson’s expansive 1999 article, work which this Article updates.¹³ In particular, this Article brings contemporary attention to this body of law by placing it in the context of online platform diversity.

The First Amendment offers a range of protections. Given this range, why focus on editorial judgment as the way to describe internet platform First Amendment rights, especially when other literature has looked at the question more broadly? Editorial judgment is the most precise way to speak about one particular kind of decision internet platforms make: the “choice of material” that they surface to their users.¹⁴ Editorial judgment speaks most precisely to an actor making decisions about content authored by third parties. Internet platforms, to use the language of the Supreme Court in Hurley, do “not forfeit constitutional protection simply by combining multifarious voices . . . [nor] does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication.”¹⁵ In addition, most courts to have addressed the issue of First Amendment platform rights so far have treated platform speech rights as primarily a species of editorial judgment, so this treatment is consistent with emerging case law.¹⁶ It is this elevation (or de-elevation) and ordering of third party content that makes up much of what internet platforms do, hence this Article’s focus.

But not all internet platform decisions are an exercise of editorial judgment. Some platform actions very well might instead constitute commercial speech—or, might not constitute speech at all. Part of this Article’s project is to build out criteria by which we might be able to isolate platform editorial judgment from other kinds of platform speech and non-speech. This endeavor need not mean that other forms of platform speech are unprotected by the First Amendment. Rather, by isolating when platforms are truly editorializing, we can afford such speech appropriately heightened First Amendment protections, while being able to adjust the level of scrutiny we apply to other categories of platform speech and non-speech.

As a starting point, a few notes on scope: this Article only investigates platforms at the application layer of the internet. Scholars have made compelling arguments for treating the application and network layers of the internet differently with respect to First Amendment protections.¹⁷ For the purposes of brevity, this Article accepts this distinction and only focuses on application-layer platforms. Second, this Article treats platforms as editors rather than conduits. I have advanced a few reasons I think editorial judgment is the right approach to some internet platform decisions. But, more importantly, the nascent doctrine on this matter uniformly treats internet platforms as editors, and impending legislative changes to Section 230 all but guarantee courts will be seeing more First Amendment defenses raised by platforms. The fact that early case law has gone this way supports a lengthier investigation of this view. Last—I do not argue that internet platforms are exactly like newspapers. Rather, I argue that courts have recognized protections for editorial functions as such. Looking at whether platforms perform editorial functions, as defined in caselaw, not whether they are like newspapers, is the correct analytical approach to assessing editorial protections for online platforms. For all of these reasons, this Article makes a starting assumption that platforms are generally not conduits but do (sometimes) engage in editing.