[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. Here is the section on Moody's reaffirming the right to "present[] a curated compilation of speech."]
[1.] The Majority.—To begin with, as Douek and Lakier note, the Moody majority strongly reaffirmed private entities' power to exclude speech from their "curated compilation[s]" that make up "a single speech product," such as news feeds, parades, and newspapers. That remains true even when the private entities have a great deal of influence over the public sphere.
And this makes sense, partly because we rely on private entities to provide us as readers some valuable services that the First Amendment disables the government from providing. For instance, the government's power to restrict misinformation is sharply limited. But we of course count on newspapers and other publishers to avoid misinforming their readers, including by screening third-party submissions (such as op-eds) for accuracy.
