Foster on Originalism, the Right to Publish, and Social Media

Will Foster, Columbia University, has publishd Originalism, The Right to Publish, and Social Media. Here is the abstract.

Florida and Texas have recently passed laws that restrict social media platforms’ ability to ban, censor, or deprioritize certain accounts or content. Soon the Supreme Court may agree to hear the platforms’ First Amendment challenges to such laws. While lower courts have been forced to evaluate the laws based primarily on Supreme Court case law, the justices will not be so constrained. This article argues that they can and should look to the First Amendment’s original meaning for guidance: specifically, the original meaning of the “freedom … of the press.” Like modern social media platforms, Founding-era newspapers aggregated content from a variety of sources and published it. No one doubted that newspapers were protected by press freedom. Moreover, social media platforms are not analogous to the entities traditionally subject to regulation as common carriers or places of public accommodation, such as inns and railroads. Based in part on new Founding-era research, and utilizing modern originalist methodology, this article concludes that the First Amendment is most naturally read — as a matter of original meaning — to protect social media platforms’ choices of which content to feature on their websites. *** This paper received an Honorable Mention for the 2023 Eaton Award Honoring Excellence in Constitutional Scholarship from the University of Chicago Federalist Society.

Download the article from SSRN at the link.