(This post is part of a five-part series on regulating online content moderation.)
Before we dream up policy recommendations for how the state might intervene when private content moderation runs amok, we should probably figure out whether the state can intervene at all. The First Amendment limits the power of governments to regulate online speech, either directly or indirectly by regulating intermediaries that host others' speech. Since most online content constitutes speech, does the First Amendment completely bar the state from regulating in this space?
That indeed is the view most academics seem to take. In support of that view—let's call it the "strong editorial rights" position—adherents often point to two cases. First, in Miami Herald v. Tornillo, the Court unanimously struck down a Florida law that required newspapers to print responses from political candidates who were criticized within their pages. Noting that a newspaper is more than a "passive receptacle for news, comment, and advertising," the Court explained that the choice of what "material [should] go into a newspaper … constitute[s] the exercise of editorial control and judgment." Interfering with that judgment, therefore, violated the First Amendment's guarantee of a free press. Nor could it be assumed that newspapers retained their editorial judgment just because the right-of-reply statute required them merely to append a small amount of additional material. Since newspapers offer only a limited number of physical pages, printing mandatory rebuttals would "tak[e] up space that could be devoted to other material the newspaper may have preferred to print." Let's call this the "space constraints" principle.
