The Supreme Court has recognized in various cases that regulating media may implicate the First Amendment interests of both the regulated entity and the public.1 These interests may not always be aligned. For example, a newspaper’s interest in choosing the material it prints to promote a single perspective may conflict with the public’s interest in access to a variety of perspectives on significant issues. This potential conflict raises the question of whether the First Amendment permits government to require media outlets to devote space or airtime to alternative points of view—essentially, to elevate the public’s speech interests over the media outlet’s. For most forms of media, the answer is no.2 Instead, the Court has recognized a protected right of “editorial control and judgment” for a media outlet to choose the speech it transmits.3 One exception to this general rule lies in broadcast, where the “unique characteristics” of the medium justify greater—but not unfettered—government involvement.4 Even in that context, however, the Supreme Court has recognized a need to also protect broadcasters’ “editorial discretion.” 5

In striking down legislative attempts to require access to media facilities, the Supreme Court has relied on the principle that government may not compel a private party to provide a forum for views other than its own.6 For example, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court was unanimous in holding void under the First Amendment a state law that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper.7 A newspaper challenged this statute, arguing that the law forced the newspaper to print content it would not have otherwise published.8 The government argued that a “right to reply” law was necessary to ensure a broad range of opinions due to the concentration of media ownership and a consequent dearth of diverse perspectives.9

The Supreme Court rejected the government’s argument, noting that while “press responsibility” may be a “desirable goal,” it is “not mandated by the Constitution.” 10 The Court’s primary concern in Tornillo was instead that the law might “compel[] editors or publishers to publish that which reason tells them should not be published.” 11 Because newspapers exercise “editorial control and judgment” and are not “passive receptacle[s]” for news, the Court held that they engage in protected speech when they select material to include in a newspaper or make choices on how to arrange and limit material, and a government effort to supplant the newspaper’s editorial judgment violates the First Amendment.12 Rather than subjecting the “right to reply” law to a particular level of First Amendment scrutiny, the Court appeared to approach the law as if restrictions on editorial control would be categorically prohibited under the First Amendment.13 Following Tornillo, the Court began to recognize this right of editorial judgment outside the media context as well, where it similarly treated restrictions on editorial judgment as categorically unconstitutional.14

Footnotes

1

E.g., Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 ( “But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment.” ).

2

Cf., e.g., Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 749–50 (2011) (rejecting the idea of a compelling government interest in “leveling the playing field” for political speech, describing this type of government intervention as “a dangerous enterprise” ).

3

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974).

4

See Red Lion Broad. Co., 395 U.S. at 391–92.

5

FCC v. League of Women Voters of Cal., 468 U.S. 364, 385 (1984).

6

See, e.g., Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 9 (1986).

7

418 U.S. 241 (1974).

8

Id. at 245.

9

Id. at 250–51.

10

Id. at 256.

11

Id. (internal quotation marks omitted).

12

Id. at 258.

13

Id.

14

E.g., Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 9 (1986) (recognizing right of privately-owned utility company to exclude third-party material from commercial mailers); Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995) (recognizing right of parade organizers to exclude organizations from parade); see 303 Creative LLC v. Elenis, 600 U.S. 570, 587 (2023) (recognizing website designer’s right to refuse to create websites communicating messages with which the designer disagrees); see also Moody v. NetChoice, LLC, No. 22-277, slip op. at 30 (U.S. July 1, 2024) (concluding in dicta that a law constraining content moderation choices of social media platforms’ newsfeeds would regulate protected expression).