Free Speech and Private Power: No Decision About Speaker- and Content-Based Protections

[I am serializing my short Harvard Law Review Forum essay titled "Free Speech and Private Power", 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.]

The Florida law in Moody didn’t ban all removals by platforms: It banned only removal of materials posted by political candidates and journalistic organizations, as well as material about political candidates. The Texas law covered speakers and topics generally, but banned only viewpoint discrimination, and not viewpoint-neutral content discrimination, and excluded expression that “is the subject of a … request from an organization with the purpose of … protecting survivors of sexual abuse from ongoing harassment.” Likewise, even bans on viewpoint discrimination in direct messaging would presumably need to have some exclusions for spam, and determining what is spam may sometimes involve content judgments.

Would such rules themselves be viewed as impermissibly content-based? The Court left this question unsettled. The Court did not, for instance, resolve whether the laws should be judged under “strict or intermediate scrutiny,” because it concluded that any restrictions on the platforms’ newsfeeds—their “curated compilation[s]“—would fail even intermediate scrutiny.

Nor do the Court’s precedents resolve the issue. To be sure, laws that restrict speech are generally subject to strict scrutiny if they are content-based, even if they are viewpoint-neutral. But the Court has never decided how courts should review laws that selectively protect speech from private restrictions, as many laws do.

Laws protecting employee speech, for instance, often focus just on “political” speech, or even just on speech about political campaigns. Federal labor law limits employers’ ability to restrict employees’ speech related to unionization or labor conditions, and limits unions’ ability to punish their members for such speech. State and federal whistle-blower and retaliation laws also limit employers’ ability to punish employees for their complaints about certain kinds of illegal or civilly actionable conduct.

Likewise, laws that protect speech in places of public accommodation often protect only speech about certain broad categories of political matters. Some state legal rules that provide some right of access to shopping malls (often inferred from state constitutions) protect only signature gathering for ballot measures, not speech on other topics. Some telephone company common carrier laws don’t require the regulated businesses to provide access to dial-a-porn.

To be sure, perhaps all these protections against private power, including protections against Big Tech private power, should be subject to strict scrutiny unless they protect all speech equally with no content classifications (except perhaps for exclusion of speech that fits within a First Amendment exception). But nothing in Moody so mandates.

I’m inclined to think that these sorts of content-based but viewpoint-neutral speech protections are indeed constitutionally permissible. In a sense, they are like the sort of benefit program discussed by the Court in Iancu v. Brunetti and by Justice Barrett’s concurrence in Vidal v. Elster: The government is offering something to speakers—here, protection from retaliation or exclusion—as a means of promoting a diversity of speech. While the benefit must be viewpoint-neutral, it may be limited based on content. So if the legal rules discussed in the preceding paragraphs aren’t rendered unconstitutional by their preference for some categories of speech, then social media platform access requirements shouldn’t be rendered unconstitutional by the viewpoint-neutral but content-based protection rules they may draw.

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