“Free Speech and Private Power”

I have a short essay with this title in the Harvard Law Review Forum, 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. Here’s the Introduction; I’ll likely also post excerpts from the piece in coming days.

What may and what should courts and legislatures do about private restrictions on speech? This has long been a critically significant and contested question, both before the Court and elsewhere. This Term’s cases—Moody v. NetChoice, LLC, Murthy v. Missouri, and, to a lesser degree, Lindke v. Freed—all considered the issue, but left it mostly undecided.

Professors Evelyn Douek and Genevieve Lakier have written important recent works on this general question, and their Lochner.com? is yet another major contribution on their part. I’d like to elaborate on some of the broader points that they discuss, and then turn to what the cases they focus on (Moody, Murthy, and Lindke) practically mean for the free speech/private power question going forward.

My general theme is that the question has defied, and continues to defy, any simple generalization—perhaps unsurprisingly, given that private power over speech is both dangerous and valuable. Our legal system has not concluded either that all private entities should be constrained by free speech principles, or that all private entities should be free to restrain speech on their property (or by their employees or students) as they prefer. Perhaps this is a problem that is, to borrow the late Professor Fred Schauer’s words from a different First Amendment context, “too hard” for a comprehensive rule. At least, if a rule is indeed possible, it has yet to be discovered.

The new cases add to this complexity, by largely acting cautiously and incrementally, perhaps because of the difficulty of the private power problem and not just because of the novelty of social media technology. I hope the analysis below helps us consider how private power questions might be considered in light of those cases. Where Douek and Lakier evaluate and critique the new precedents, I generally ask a complementary question: What might judges, lawyers, legislators, and academics do in the world those cases create?

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