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Document Type

Article

Abstract

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.

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