Perhaps the most important question posed by the recent First Amendment challenges to Texas and Florida’s new social media laws is whether platforms exercise a constitutionally protected right to “editorial discretion” when they moderate speech. The platform’s central challenge to both laws is that their must-carry and transparency obligations infringe on that right by interfering with the platforms’ ability to pick and choose what speech they host on their sites. It’s the same right, they argue, that newspapers exercise when they pick and choose what speech appears in their pages.
Judge Oldham’s opinion in the recent Fifth Circuit Court of Appeals case, NetChoice v. Paxton, upholding the Texas social media law (known as H.B. 20), treated this argument with a kind of scorn and dismissiveness that was characteristic of much of his judgment. The platforms, Oldham wrote, “cannot invoke ‘editorial discretion’ as if uttering some sort of First Amendment talisman to protect their censorship … [T]he Supreme Court’s cases do not carve out ‘editorial discretion’ as a special category of First-Amendment-protected expression.” Instead, what matters to the First Amendment, he claimed, is “whether a challenged regulation impermissibly compels or restricts protected speech” (our emphasis); whether an entity exercises editorial discretion is merely a relevant consideration in that assessment.
Oldham’s assertion that the First Amendment protects only the right to speak, not to engage in editorial discretion, is patently wrong. It is true that the Court has never been particularly clear about how to define “editorial discretion.” Nevertheless, rereading the cases in which courts have discussed the concept shows that it very much is a distinct category of First Amendment-protected expression, and that it covers decisions not to publish content just as much as it covers decisions to publish speech.
It’s important to stop and appreciate this point because it tells us something very important about the First Amendment. The Fifth Circuit opinion in the NetChoice case expresses a perhaps intuitive view of the First Amendment: namely, that because the First Amendment protects speech, it obviously cannot also protect the right of powerful social media companies to suppress (or, to use Oldham’s language, “censor”) users’ speech. But what the editorial discretion cases show is that the First Amendment is not concerned solely—or perhaps even primarily—with the maximization of speech per se. Instead, what it protects and facilitates is the kind of information ecosystem in which free speech values can flourish. Courts have recognized that protecting the right of speech intermediaries to choose what they do and do not publish—in other words, protecting their right to editorial discretion—is a necessary means of creating that kind of environment.
To be clear: The right to editorial discretion is not an absolute one. There are important questions about when and how it should be limited—questions that the cases have not so far satisfactorily answered. But the right to editorial discretion is, nonetheless, an incredibly important component of the freedom that the First Amendment protects. This is obvious if one reviews the many, many Supreme Court and lower court cases that discuss the protection the First Amendment affords editorial discretion—as we do in this post.
The Supreme Court’s Editorial Discretion Cases
The question of what First Amendment rights powerful private institutions enjoy in their control of important forums of public expression is one courts have wrestled with since the early 20th century, when the modern First Amendment emerged. Since that time, the Supreme Court has recognized that one of the rights that all private speech intermediaries possess under the First Amendment is the right to make decisions about the speech that flows through their platforms. The Court hasn’t always used the term “editorial discretion” to describe that right. In the early cases, it referred instead to the right of newspapers and other large media corporations to refuse to print “anything which their ‘reason’ tells them should not be published.”
Beginning in the 1970s, however, the Court started to refer to that right as “editorial discretion” or “editorial judgment.” Consider, for example, the important 1973 case, CBS v. Democratic Nat’l Committee. In that case, the Court held that neither the Fairness Doctrine nor the First Amendment required broadcasters to accept paid editorial advertisements because the opposite result would infringe too much on “journalistic discretion.” Chief Justice Burger explained that “it would be anomalous for us to hold, in the name of promoting the constitutional guarantees of free expression, that the day-to-day editorial decisions of broadcast licensees” could be so constrained. Indeed, “[t]o do so in the name of the First Amendment would be a contradiction” because it “would be antithetical to the very ideal of vigorous, challenging debate on issues of public interest.” Justice Stewart was even more emphatic in his concurrence, stating that “[i]f we must choose whether editorial decisions are to be made in the free judgment of individual broadcasters, or imposed by bureaucratic fiat, the choice must be for freedom.”
The next month, in Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels., the Court “reaffirm[ed] unequivocally the protection afforded to editorial judgment and to the free expression of views … however controversial.”
The next year came the Court’s perhaps most famous case about the protection of editorial discretion, Miami Herald Pub. Co. v. Tornillo, in which it held unconstitutional a right of reply statute that would have forced newspapers to publish the replies of political candidates to critical editorial content. Chief Justice Burger, speaking for a unanimous Court, cited the passage from Pittsburgh Press above and explained:
The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. (emphasis added)
As the Court later summarized in Turner I, “Tornillo affirmed an essential proposition: The First Amendment protects the editorial independence of the press.” Indeed, by 1996, Justice Thomas was able to say in Denver Area that editorial discretion is something that “all recognize is fundamentally protected.”
Of course, this raises many questions. What is editorial independence? Who is the press? But it also unequivocally answers one question, raised by Judge Oldham: Is editorial discretion a special category of protected expression? Clearly yes—indeed, this is, as the Court said in Turner, an “essential proposition” of First Amendment law.
The Appellate Editorial Discretion Cases
Unsurprisingly enough, given the strong language in Turner and Tornillo, every single one of the lower federal courts has also embraced the idea that the First Amendment protects editorial discretion, as an independent component of “the freedom of speech.”
Let’s start with the Fifth Circuit itself (that is, Judge Oldham’s circuit). The Fifth Circuit has described “editorial freedom” as the lifeblood of the “First Amendment’s protection of a free press.” It has also held unequivocally that the “First Amendment interdicts judicial interference with the editorial decision” to not publish speech as well as to publish. Indeed, the Fifth Circuit has been explicit in saying that “editorial decisions to cancel [programming] cannot be properly characterized as ‘censorship’,” (our emphasis) and that government interference with such decision-making would “implicate the same destruction of editorial freedom” as government interference with decisions to disseminate speech.
Other circuits have used similarly strong language to describe the importance of the right. For example, the D.C. Circuit has held that impinging on editorial discretion “affect[s] values that lie near the heart of the First Amendment.” It noted that the Court has only done it “grudgingly … in highly specialized circumstances,” and that “the First Amendment guards against governmental intrusions into the editorial function … jealously.” The Second Circuit has held that “[t]he Supreme Court cases which grant protection to the editor … are unequivocal in their terms.” The Eighth Circuit has said that “governmental interference with the editorial process raises a serious First Amendment issue” and that “Courts must be slow to intrude into the area of editorial judgment,” in cases of omissions from publication as much as inclusions. The Ninth Circuit has held that “[i]t is clear that the First Amendment erects a barrier against government interference with a newspaper’s exercise of editorial control” and that “[t]he danger inherent in government editorial oversight … is well established.” And the Eleventh Circuit, in its parallel NetChoice decision about Florida’s social media law, said that “[t]he Supreme Court has repeatedly held that a private entity’s choices about whether, to what extent, and in what manner it will disseminate speech—even speech created by others—constitute ‘editorial judgments’ protected by the First Amendment.”
Courts have recognized that the right to editorial discretion does not immunize newspapers or other media businesses from all government regulation that might impact their editorial process in one way or another. They have held, for example, that the right to editorial discretion does not exempt media companies from compliance with the Civil Rights Act of 1964 or other nondiscrimination mandates, and that this is true even when it comes to the hiring and firing of newspaper editors. Courts have found the same to be true of the nondiscrimination mandates imposed by the National Labor Relations Act. They have also upheld federal laws (see here and here) that require broadcasters and other media corporations to carry the speech of political candidates even when they do not wish to.
Even in these opinions, however, the courts went out of their way to reaffirm, as a general matter, the newspapers’ “First Amendment right to be free from governmental interference in determining what [they] publish.” As such, they only reinforce how idiosyncratic Judge Oldham’s blanket dismissal of the idea that editorial discretion constitutes a freestanding First Amendment right really is.
Are the Editorial Discretion Cases Really Just about Compelled Speech?
To be fair to Judge Oldham, it is not that he denies the existence of these apparently countervailing precedents. But he reads them against the grain: as cases in which what is really protected (notwithstanding the strong language quoted above) is not editorial discretion per se, but the right of newspapers and other expressive organizations to control their own speech. More specifically, Oldham argues that in cases like Tornillo, the Supreme Court protected the editorial discretion of newspapers because, given the close control that newspapers maintain over the material that appears in their pages, doing otherwise would be “tantamount to forcing newspaper[s] to speak.” He argues that in other cases the Court protected the editorial discretion of other speech intermediaries when—but only when—those intermediaries were sufficiently “intimately connected” with the speech they disseminated that it became more or less their own.
This argument is creative but, like the earlier one, total bunk. First, the idea that newspapers’ editorial discretion is protected only because they are “intimately associated” with the speech they publish finds no support in Tornillo itself. What was protected was “the function of editors,” not the speech that constituted the outcome of that function.
In any event, while it is true that newspaper editors affirmatively select most of the material that appears in their pages or on their sites, this does not always mean they are identified with the views that content expresses. It is highly unlikely that The New York Times intended to express alignment with the views of Adolf Hitler, Vladimir Putin, or the Iranian foreign minister when it published their op-eds, for example, or that any reader took the paper to be doing so. A more quotidian example is the thousands of ads that newspapers or news sites run every day—those clearly speak in another speaker’s voice and are often subject to a much more lax editorial process. And yet, as the Court has affirmed on multiple occasions, the right to select or not select ads is part of the right to editorial discretion that newspaper editors enjoy, even when those ads do not represent the newspaper’s point of view.
Meanwhile, cable television providers typically do not select every single show that appears on their networks. Instead, they choose shows or content producers, who in turn decide what programs appear on the television network. Nevertheless, in Turner, the Court recognized that these cable television producers possessed a constitutionally protected right to make choices about what programs or networks they host, even if not an absolute one, notwithstanding their lack of any “intimate” connection to the speech.
The Court has recognized, in these and other cases, that entities that truck in the business of speech have a constitutionally protected right to decide what speech they will or will not disseminate in their networks and on their platforms. And that is because granting speech intermediaries such a right is key to how our system of free expression operates—regardless of whether they are intimately associated with that speech, or identified with that speech by the viewing public. Private businesses get to decide what speech to disseminate in order to ensure that the government doesn’t get to—at least, most of the time. As the Fourth Circuit recently explained: “Because the integrity of the newsroom does not readily permit mandated interaction with the government, the First Amendment [protection for editorial discretion] applies in full force to all news, comment, and advertising.”
Of course, no right is absolute. The right to editorial discretion can be trumped by other interests, as the Court recognized in Turner when it upheld a federal law requiring cable television providers to host broadcast television stations even when their editorial judgment counseled against it. But the analysis of when those interests are sufficiently substantial to justify government intervention starts from the premise that editorial discretion is protected, not that it is “censorship.”
Recognizing that the First Amendment protects editorial discretion does not mean that figuring out when or how social media platforms actually exercise that editorial discretion is an easy task. Nor does it tell us what other interests are sufficient to override platforms’ exercise of that right.
Indeed, what the editorial discretion cases implicitly illustrate is that this analysis must be purpose-driven. The reason why speech intermediaries’ editorial discretion is protected is not purely because it is a form of speech per se. Indeed, the exercise of editorial discretion necessarily results in some voices being privileged over others. But courts have nevertheless protected it because they have recognized that intermediaries are important institutions in preserving a public sphere that serves democratic discourse.
Therefore, Judge Oldham was correct to assume in his opinion that it matters to the constitutional analysis that platforms curate speech differently than newspapers do (although his assumptions about how the platforms curate speech were, um, not entirely correct). There is no question that platform content moderation works differently than the editorial process that newspapers and other media organizations employ. These differences reflect the fact that platforms play a different role in the public sphere. If the point of protecting editorial discretion is to protect a process because of what that process contributes to democratic discourse, these facts should matter to the judicial analysis of the form and extent of platforms’ editorial discretion rights.
So in a sense, Judge Oldham was also right that “Platforms can’t just shout ‘editorial discretion!’ and declare victory.” Simply shouting the name of any right doesn’t tell you its content or whether governmental intrusion can be justified in any particular case. But when, how, and why the First Amendment protects editorial discretion is the question we should be asking, not whether it does. That latter question has been well and truly answered—in the affirmative.
We would like to thank Rachel Shields, Aneliese Castro, and Andrés Suarez for their amazing research assistance.
Evelyn Douek is an assistant professor of law at Stanford Law School and was a senior research fellow at the Knight First Amendment Institute at Columbia University from 2021-22.
Genevieve Lakier is a professor at the University of Chicago Law School and was the Knight Institute's senior visiting research scholar, 2021-2022.