The Publisher’s Privileges: How the Supreme Court Built a First Amendment Fortress Around Big Tech

For the better part of a decade, a single, foundational question has haunted every legislative and judicial attempt to reckon with the gargantuan power of the internet: In the eyes of the Constitution, are dominant online platforms like Facebook, YouTube, and X more analogous to a phone company or to a newspaper? Are they neutral, common-carrier conduits that must grant access to all, or are they private, curated publications with the sovereign right to choose what they present to the world? The entire future of online speech, regulation, and the very nature of our digital public square hinged on the answer.

On the final day of its term, the Supreme Court, in a landmark one-two punch, answered with resounding and revolutionary clarity. In its tandem rulings in NetChoice v. Florida and Free Speech Coalition v. Paxton, the Court rejected the burgeoning argument that these platforms are public utilities. Instead, it has formally enshrined them as private publishers, bestowing upon them the full, formidable, and often uncomfortable First Amendment privileges that come with that title: both the sovereign right to exclude speech and the protected right to publish it without undue government burden.

This new doctrinal fortress, constructed with startling speed and intellectual cohesion, represents a triumph for a certain brand of free speech absolutism. Yet in doing so, it simultaneously cedes unprecedented, and constitutionally blessed, control over the modern public square to a handful of private, profit-driven corporations. The Court, by resolving two seemingly disparate cases in tandem, has not merely settled a legal debate; it has fundamentally reshaped the battleground for information in the 21st century, and we will all be living with the consequences.

The Right to Exclude: Rejecting the Digital Public Square

The first pillar of the Court’s new doctrine was erected in NetChoice v. Florida. The case concerned Florida’s SB 7072, a law born of the political frustration that social media platforms were biased against conservative viewpoints. The law was a direct assault on the platforms’ moderation policies, prohibiting them from “deplatforming” political candidates, requiring them to host speech they might otherwise remove, and demanding they apply their standards with a government-mandated “fairness.” It was, in essence, an attempt by the state to legislate a “right to be heard” on private digital property.

Writing for the 6-3 majority, Justice Elena Kagan systematically dismantled the Florida law by applying a classic First Amendment precedent to a modern technological problem. The intellectual foundation of her opinion is the concept of “editorial discretion.” This principle, the Court affirmed, is the very essence of free speech: the right of a publisher to choose what to print, what to emphasize, and what to reject. Kagan drew a direct, unwavering line from the current case to the Court’s seminal 1974 decision in Miami Herald v. Tornillo. In that case, the Court unanimously struck down a Florida law that required newspapers to grant a “right of reply” to political candidates they criticized. Forcing a newspaper to print something against its will, the Tornillo court held, was a form of “compelled speech,” a practice the First Amendment finds abhorrent.

Justice Kagan’s opinion masterfully translates this 20th-century logic to the digital realm. A user’s social media feed, she argues, is not a passive stream of information but a curated, expressive product. The algorithms that prioritize content, the community standards that remove it, and the decisions to suspend or ban users are all acts of editorial judgment. Forcing Facebook to host a politician’s post or X to carry a “journalistic enterprise” it deems to be misinformation is no different, constitutionally, from forcing the Miami Herald to turn over its front page to a candidate it despises. In both cases, the government is unconstitutionally intruding into the function of an editor and compelling speech.

The dissent, authored by Justice Samuel Alito and joined by Justices Thomas and Gorsuch, offered a powerful and potent counter-narrative. Their argument is not a frivolous one; it represents the most significant alternative vision for internet regulation. The dissenters contend that the newspaper analogy is dangerously anachronistic. A newspaper, they argue, is one of thousands of voices in a diverse media ecosystem. Platforms like Google, Facebook, and YouTube, by contrast, are not just participants in the public square; they are the public square.

Leaning heavily on the “common carrier” doctrine, the dissent argues that the sheer market dominance and societal necessity of these platforms make them the essential infrastructure of modern life, far more akin to a public utility like a telephone company or a railroad than a private publication. A phone company cannot refuse to connect your call because it dislikes the content of your conversation. The dissenters express grave concern that granting absolute editorial discretion to a handful of monopolistic, Silicon Valley-based companies gives them a power over public discourse that is arguably more dangerous, less transparent, and less accountable than that of the government itself. In their view, the majority has prioritized a historical analogy over the functional reality of a world where a few CEOs can effectively silence any voice they choose.

The Right to Include: Defending Against Burdensome Regulation

If NetChoice established a platform’s right to exclude, the second pillar, Free Speech Coalition v. Paxton, established its correlative right: the right to include content without facing prohibitive government-imposed burdens. The case challenged a Texas law, H.B. 1181, that required websites featuring “sexually explicit material” to implement onerous age-verification systems, such as cross-referencing a user’s government-issued ID, before granting access.

Writing for the 7-2 majority, Justice Brett Kavanaugh sidestepped the state’s moral arguments about the content itself and focused instead on the First Amendment rights of the adult users and the publishers who wished to speak to them. The key concept in this ruling is the “chilling effect.” The Court found that forcing every adult user to surrender their anonymity, create a permanent digital record of their engagement with explicit material, and trust a third-party verifier with their private data would significantly “chill” constitutionally protected speech. Many adults, fearing privacy breaches, data hacks, or social stigma, would simply choose not to access perfectly legal content.

From there, the Court applied the legal test of “strict scrutiny,” which demands that a law be “narrowly tailored” to serve a “compelling government interest” using the “least restrictive means” possible. Justice Kavanaugh’s opinion acknowledged that protecting minors is indeed a compelling interest. However, the method Texas chose—a universal, one-size-fits-all barrier—was far from the least restrictive means. The Court pointed to the widespread availability of content filters and other parental control tools. These tools, which empower parents to make decisions for their own families and devices, represent a less restrictive alternative that achieves the state’s goal without placing an unconstitutional burden on the rights of all adults.

Connecting these two rulings reveals the Court’s grand architectural plan. NetChoice declares that the government cannot force a publisher’s hand to carry content it wishes to exclude. Free Speech Coalition declares that the government cannot place an unreasonable burden that prevents that same publisher from delivering its chosen content to a willing adult audience. One protects the decision to curate; the other protects the decision to publish. Together, they create a formidable, constitutionally protected sphere for editorial decision-making, covering both acts of inclusion and exclusion.

Weaving the Fortress Walls: Implications of a Unified Doctrine

By deciding these cases in tandem, the Supreme Court has woven the walls of a new constitutional fortress around online platforms. It has articulated a single, powerful doctrine that applies across the entire spectrum of digital content, from mainstream political discourse to the most controversial and sexually explicit material. In doing so, it has forced us to confront the “uncomfortable alliance” at the heart of free speech jurisprudence. To defend the editorial rights of Facebook, the doctrine must, by necessity, also defend the publishing rights of Pornhub. To protect the New York Times’s online presence from government meddling, it must also protect the forums of political extremists. The law, in the majority’s view, cannot be tailored to distinguish based on the perceived social “worthiness” of the publisher; the First Amendment’s shield must be absolute, or it is no shield at all.

This new clarity answers many of the questions that have plagued lawmakers and citizens for years, though the answers themselves may be unsettling. What does this mean for the fight against online hate speech and misinformation? It means that platforms can choose to remove such content based on their own terms of service—an act of protected editorial discretion—but the government cannot compel them to do so. The responsibility lies solely with the platforms themselves. What does this mean for the mercurial decisions of a figure like Elroy Muskrat at X? It means his choices, however erratic or controversial, are now more firmly protected than ever as the editorial judgments of a private publisher.

And what does this mean for the immense power of Big Tech? It means that power is now constitutionally entrenched in a way it was not just a week ago. The argument that these platforms had a quasi-public duty has been judicially rejected. They are private actors with private rights, and their control over the primary arteries of modern communication is now defended by the highest law of the land.

The Publisher’s Price

With these twin rulings, the Supreme Court has provided a moment of stunning legal clarity, decisively resolving the central ambiguity of internet law. Platforms are publishers, endowed with the full rights and privileges thereof. This represents a monumental victory for the principles of free expression and serves as a powerful bulwark against any attempt by the government, whether state or federal, to censor or compel speech online.

But this clarity comes at a steep and unsettling price. The Court’s decision is a formal constitutional blessing for a system where a tiny cabal of unelected, largely unaccountable corporate executives in Silicon Valley hold the keys to the modern public square. The power to shape national and global conversations, to amplify one voice and silence another, to define the boundaries of acceptable debate, now resides not with a democratically elected government bound by constitutional checks, but with private entities whose primary allegiance is to their shareholders.

The great legal question of whether the government can regulate the content on these platforms is, for now, settled. The answer is a resounding no. But this legal resolution has given birth to a far more difficult and pressing political and social question: how should these newly empowered private publishers wield their immense editorial power? That debate, having been evicted from the courtroom, is now thrown into the public arena. It will be fought not with legal briefs and oral arguments, but with the messy and unpredictable tools of market pressure, public outcry, political mobilization, and the collective will of a society grappling with who, precisely, gets to control its speech.