Free Speech and Private Power: The Right to "Present[] a Curated Compilation of Speech"

[I am serializing my short Harvard Law Review Forum essay titled "Free Speech and Private Power" in the Harvard Law Review Forum, 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. Here is the section on Moody's reaffirming the right to "present[] a curated compilation of speech.”]

[1.] The Majority.—To begin with, as Douek and Lakier note, the Moody majority strongly reaffirmed private entities’ power to exclude speech from their “curated compilation[s]” that make up “a single speech product,” such as news feeds, parades, and newspapers. That remains true even when the private entities have a great deal of influence over the public sphere.

And this makes sense, partly because we rely on private entities to provide us as readers some valuable services that the First Amendment disables the government from providing. For instance, the government’s power to restrict misinformation is sharply limited. But we of course count on newspapers and other publishers to avoid misinforming their readers, including by screening third-party submissions (such as op-eds) for accuracy.

Indeed, it would be hard to have effective democratic self-government or search for truth without some private entities—newspapers, scientific journals, book publishers—that help us sort the true from the false and good ideas from bad ones. The Court concluded that the same principles that protect newspaper publishers, parade organizers, and the like also protect social media platforms. A magazine might want to present a conservative view or a liberal view. A parade organizer might want to organize a parade that conveys a particular theme and not other messages that the organizer views as inconsistent with the theme. Likewise for social media platforms striving to create particular “curated speech products” for their users.

Private entities can also help promote useful discussions by trying to shape a pleasant environment for participants, readers, and listeners. Historically, many newspapers have had editorial policies aimed at satisfying what was seen as editors’ and readers’ preference for decency and propriety. Likewise, the moderator of an online discussion group may want to block people or posts that are unduly vulgar, menacing, or otherwise offensive, and that risk leading potential participants to leave. Indeed, without this, useful conversation might become difficult for all but the thickest-skinned.

A social media platform might similarly try to block similar material from comments posted on users’ pages, or the items that it includes in its news feed, in order to keep those pages and news feeds valuable to its users. It is especially important for such platforms to block spam, or else their products would become unusable. But even blocking offensive ideas may help them create a speech product that more readers will want to consume.

Douek and Lakier suggest the Court spoke too categorically in foreclosing the future viability of even modest right-of-access mandates such as “relatively modest nondiscrimination obligations” that mandate some degree of equal treatment of the speech of political candidates. (Think the narrow and precise obligations imposed on broadcasters by the candidate equal opportunity and noncensorship rule, rather than the broad, vague, and discretionarily applied obligations imposed by the old fairness doctrine.) Perhaps there should be some more latitude for narrow laws that aim to limit “the capacity of the powerful tech companies to, for example, sway an election if they desire to do so.” But on balance, I think, the Court was right to conclude that, as to their curated feeds, platforms have the same broad curatorial power that newspapers do.

[2.] Possible Departures?—But there is a complication: One of the five Justices who joined the majority in full, Justice Barrett, filed a concurrence flagging questions for the future, and suggesting that certain kinds of “”curation” might not be fully protected by the First Amendment after all. These might include:

• platforms’ using algorithms that “just present[] automatically to each user whatever the algorithm thinks the user will like—e.g., content similar to posts with which the user previously engaged”;
• platforms’ “hand[ing] the reins to an AI tool and ask[ing] it simply to remove ‘hateful’ content,” based “on large language models” that “determine what is ‘hateful”D’; and
• “foreign … corporations” making decisions “at the direction of foreign executives.”

Justices Alito, Thomas, and Gorsuch were even more broadly open to certain kinds of restrictions on platforms. While some of their analysis was squarely rejected by the majority, some of it fits Justice Barrett’s reservations: They, too, expressly noted that “when AI algorithms make a decision, ‘even the researchers and programmers creating them don’t really understand why the models they have built make the decisions they make,”‘ and asked, “[a]re such decisions equally expressive as the decisions made by humans?”

Finally, Justice Jackson’s minimalist concurrence suggested she may be saving such questions (among others) for a later day: “Faced with difficult constitutional issues arising in new contexts on undeveloped records, this Court should strive to avoid deciding more than is necessary.” There thus may be at least five Justices who are open to some limitations even on “[a] private party’s collection of third-party content into a single speech product.”

To be sure, the majority rejected one possible basis for such limitations: the claim that such collection loses First Amendment protection “just because a compiler includes most items and excludes just a few.” But, as noted above, other bases may yet be available.

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