Ashutosh Avinash Bhagwat, ‘Do Platforms Have Editorial Rights?’

ABSTRACT
Social media today plays a central, albeit vexing and divisive role in our social and political culture. In response to the alleged failures of social media, a vast array of regulatory proposals have been advanced, and in some cases legislatively enacted, that would restrict the ways in which social media platform owners may moderate content on their platforms. These proposals include, among other things, imposing common carrier status on platforms (an approach endorsed by Justice Thomas in a recent separate opinion), requiring viewpoint-neutral content moderation policies, and restricting or conditioning platforms’ Section 230 immunities in various ways. What all of these proposals have in common is that they seek to impose legal restrictions on how social media platforms control the content that they host, refuse to host, display, and prioritize.

These proposals are in deep tension with the idea that platforms themselves have First Amendment rights to control what content is available or visible on their platforms – what I call editorial rights. This article considers whether, and to what extent, social media platforms enjoy First Amendment editorial rights, and the implications of those rights for assorted regulatory initiatives.

I begin by defining First Amendment editorial rights, and distinguishing between different kinds of editorial rights. I then examine how, and to what extent, the courts have extended editorial rights to new communications technologies. I next turn to the specific question of internet platform editorial rights, concluding that social media platforms should indeed enjoy substantial editorial rights, though probably fewer than prototypical holders of editorial rights such as print newspapers. I conclude by considering whether current regulatory proposals are consistent with these editorial rights.

Bhagwat, Ashutosh A, Do Platforms Have Editorial Rights? (July 8, 2021). 1 Journal of Free Speech Law (forthcoming 2021).

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