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97 N.Y.U. L. Rev. Online 1 (2022)

handle is hein.journals/nyulro97 and id is 1 raw text is: FIRST AMENDMENT BATTLES OVER ANTI- DEPLATFORMING STATUTES: EXAMINING MIAMI HERALD PUBLISHING CO. V. TORNILLO' S RELEVANCE FOR TODAY'S ONLINE SOCIAL MEDIA PLATFORM CASES CLAY CALVERT* Florida adopted a statute in 2021 barring large social media sites from deplatforming- removing from their sites-candidates runningfor state and local office. Soon thereafter, Texas adopted its own anti-deplatforming statute. A trade association representing several major social media companies is now challenging the laws in federal court for violating the platforms' First Amendment speech rights. A central issue in both NetChoice, LLC v. Moody (targeting Florida 's statute) and NetChoice, LLC v. Paxton (attacking Texas's law) is the significance ofthe U.S. Supreme Court's 1974 decision in Miami Herald Publishing Co. v. Tornillo. In Tornillo, the Court struck down a Florida statute that compelled print newspapers that published attacks on political candidates' character or record to provide access in their pages for those political candidates' replies. This Article examines the relevance of Tornillo's aging precedent in conferring print newspapers with a right of editorial autonomy and a right not to be compelled to speak in today's social media, anti-deplatforming cases. The Article avers that while Tornillo may help the platforms with their legal challenges, its impact is cabined by several crucial factual and legal distinctions. The Article concludes that dicta regarding both access and social media platforms in the U.S. Supreme Court's 2017 decision in Packingham v. North Carolina could play a surprising role in pushing back against Tornillo. IN TR O D U CTIO N ......................................................................................... . 2 I. A PRIMER ON TORNILLO ..................................................................... 5 II. THE INTEREST OF EDITORIAL AUTONOMY AND THE RIGHT NOT TO BE COMPELLED TO SPEAK.................................................................. 8 A. Editorial Control and Autonomy ............................................8 B. The Right Not to be Compelled to Speak ..............................11 III. TORNILLO'S ABSENT STRICT SCRUTINY ANALYSIS ..................... 13 * Copyright © 2022 by Clay Calvert, Professor of Law, Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida in Gainesville, Fla. B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University. The author thanks University of Florida students Oneyda Ayala, Ahmad Ibsais, Katelyn Gonzalez, Lily Kino and Luke Zarzecki for assisting with drafts of this Article. 1