UNIVERSITY of NOTRE DAME

Mailyn Fidler, The New Editors: Refining First Amendment Protections For Internet Platforms, 2 Notre Dame J. Emerging Tech. 241 (2021).

The New Editors: Refining First Amendment Protections For Internet Platforms

Mailyn Fidler

This Article envisions what it would look like to tailor the First Amendment editorial privilege to the multifaceted nature of the internet, just as courts have done with media in the offline world. It reviews the law of editorial judgment offline, where protections for editorial judgment are strong but not absolute, and its nascent application online. It then analyzes whether the diversity of internet platforms and their functions alter how the Constitution should be applied in this new setting.

First Amendment editorial privilege, as applied to internet platforms, is often treated by courts and platforms themselves as monolithic and equally applicable to all content moderation decisions. The privilege is asserted by all types of platforms, whether search engine or social media, and for all kinds of choices. But Section 230’s broad protections for internet platforms have largely precluded the development of a robust body of First Amendment law specific to internet platforms. With Section 230 reform a clear priority for Congress, internet platforms will likely turn to First Amendment defenses to a greater extent in coming years, prompting the need to examine how the law of editorial privilege applies online.

I offer six concrete conclusions about how online platforms do or do not challenge how courts currently apply the law of editorial judgment. The features and functions of online platforms do not change the need to differentiate when a platform is occupying a speaker or non-speaker role, the application of longstanding First Amendment exceptions for low value speech to platforms, and the judiciary’s hesitancy to include market competitiveness in First Amendment analyses. These same features and functions require insisting that no distinction between wholesale and retail-level editorial judgments emerges in the online space and that useful distinctions between editing and advertising remain. Finally, they suggest that user decisions should be given greater weight in determining speech-related damages in claims brought against platforms.

Introduction

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.

References

*Legal Fellow, Technology and Press Freedom Project,R eporters Committee for Freedom of the Press; Adjunct Professor and Visiting Faculty Fellow at the Nebraska Governance and Technology Center at University of Nebraska Lincoln; Research Affiliate, Berkman Klein Center for Internet & Society, Harvard University. The views in this Article do not necessarily reflect those of my employer, and any errors are mine alone. Author previously consulted for Google on policy matters (2013-14) and worked on some of the cases described in this article as a summer associate at a law firm retained by Google (2019). Thanks to Doni Bloomfield, Eric Goldman, Daphne Keller, Ela Leshem, Berin Szóka, Eugene Volokh, and Quinn White for comments on the article. Special thanks to Matt Kristoffersen for research assistance and editing.

1. See infra Part IV.

2. Indeed, since this paper’s original drafting, internet organizations have filed a challenge against a law in Florida that purports to prevent internet platforms from blocking political candidates from their sites. The challenge argues that the law impermissibly constrains editorial privilege. See Netchoice and Computer Comm’n Industry Assoc. v. Ashley Brooke Moody et al., No. 4:21-cv-00220 (N.D. Fla. 2021).

3. 47 U.S.C. §230.

4.Jeff Kosseff, What’s in a Name? Quite a Bit, If You’re Talking About Section 230, Lawfare (Dec. 19, 2019, 1:28 PM), https://www.lawfareblog.com/whats-name-quite-bit-if-youre-talking-about-section-230; Danielle Keats Citron & Mary Anne Franks, The Internet as Speech Machine and Other Myths Confounding Section 230 Reform, 2020 U. Chic. L. F. 45, 46 (2020) (describing Section 230 as essentially an “article of faith.”).

5.See, e.g., Eric Goldman, Why Section 230 Is Better Than the First Amendment, 95 Notre Dame L. Rev. Reflection 33 (2019); Bruce D. Brown & Alan B. Davidson, Is Google Like Gas or Steel? N.Y. Times (Jan. 4, 2013), https://www.nytimes.com/2013/01/05/opinion/is-google-like-gas-or-like-steel.html.

6.See James Grimmelmann, Speech Engines, 98 Minn. L. Rev. 868, 879 (2014) (helpful overview of conduit theory).

7.See, e.g., supra note 2.

8.The primary exception is Heather Whitney, Search Engines, Social Media, and the Editorial Analogy, Emerging Threats Series, Knight First Amendment Inst. At Colum. U. (2018) (arguing against the editorial analogy). This paper is not a law review article, and I disagree strongly with Whitney’s interpretation of caselaw in several instances, including the relevance of Pruneyard and Packingham; her piece also critiques the analogy more than the underlying doctrine. Eric Goldman responds with representative critiques in Eric Goldman, Of Course the First Amendment Protects Google and Facebook (and It’s Not a Close Question), Emerging Threats Essay Series, Knight First Amendment Inst. At Colum. U. (2018). See also Genevieve Lakier, The Problem Isn’t the Use of Analogies but the Analogies Courts Use, Emerging Threats Essay Series, Knight First Amendment Inst. At Colum. U. (2018); Frank Pasquale, Preventing a Posthuman Law of Freedom of Expression, Emerging Threats Essay Series, Knight First Amendment Inst. At Colum. U. (2018).

9.Id. (providing what is arguably the most comprehensive treatment); Eugene Volokh & Donald M. Falk, Google: First Amendment Protection for Search Engine Search Results, 8 J. L. Econ. & Pol’y 883 (2012); Grimmelmann, supra note 6; Eric Goldman, Search Engine Bias and the Demise of Search Engine Utopianism, 8 Yale J. L. & Tech. 188 (2006).

10. Jennifer A. Chandler, A Right to Reach an Audience: An Approach to Intermediary Bias on the Internet, 35 Hofstra L. Rev. 1095 (2007); Frank Pasquale, Rankings, Reductionism, and Responsibility, 54 Clev. St. L. Rev. 115 (2006).

11. See, e.g., Goldman, supra note 5; Danielle Keats Citron & Benjamin Wittes, The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity, 86 Fordham L. Rev. 401 (2017); Citron & Franks, supra note 4; Kendra Albert, et al., FOSTA in the Legal Context, Hacking/Hustling (Jul. 30, 2020), https://hackinghustling.org/fosta-in-a-legal-context/; Kyle Langvardt, Regulating Online Content Moderation, 106 Geo. L. J. 1353 (2018).

12. John Blevins’ work comes closest: he argues for distinguishing First Amendment protections for network versus application layer platforms, but he focuses on media access regulations rather than on editorial judgment. See John Blevins, The New Scarcity: A First Amendment Framework for Regulating Access to Digital Media Platforms, 79 Tenn. L. Rev. 353 (2012). None of these articles explicitly address, for example, how social media platforms might differ from search engines from an editorial judgment standpoint. Kate Klonick’s work touches on the unique features of social media content moderation, but she focuses on the actual mechanisms platforms employ as editors rather than on First Amendment doctrine. See Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harv. L. Rev. 1598 (2018).

13. Randall P. Bezanson, The Developing Law of Editorial Judgment, 78 Neb. L. Rev. 754 (1999).

14. Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp. of Bos., 515 U.S. 557, 575 (1995).

15. Id. at 569-70.

16. Some courts refer to platform First Amendment rights in other constitutional terms. For instance, in Search King v. Google, the court uses language about opinion without reference to editorial judgment. Search King, Inc. v. Google Tech., Inc., 2003 WL 21464658, at *2-4 (W.D. Okla. May 27, 2003).

17. See, e.g., Blevins, supra note 12; see also Annemarie Bridy, Remediating Social Media: A Layer-Conscious Approach, 24 B.U. J. Sci. & Tech. L. 193 (2018) (providing an excellent history of layer-based internet regulation); Lawrence Solum & Minn Chung, The Layers Principle: Internet Architecture and the Law, U. San Diego School Of L. Pub. L. & Legal Theory Research Paper 55 (2003).

Article by Philip M. Nichols

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