Fidler on The New Editors: Refining First Amendment Protections for Internet Platforms

Mailyn Fidler (Harvard University – Berkman Klein Center for Internet & Society) has posted “The New Editors: Refining First Amendment Protections for Internet Platforms” (Notre Dame Law School Journal on Emerging Technology, 2021 (Forthcoming)) to SSRN. Here is the abstract:

This Article envisions what it would look like to tailor 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 functions alters this application at all.

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 the application of 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, threaten to collapse the useful distinction between editing and advertising, and suggest user decisions should be given greater weight in determining speech-related damages.