[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.
