Moreover, the decision as to precisely which news to distribute is, in many ways, the sine qua non of “the business of producing…news stories, commentary,
and/or editorials.”27 The New York Times famously emblazons its masthead with the slogan “All The News That’s Fit To Print,” suggesting the paper’s published materials were carefully selected and contextualized to fit the Times’s subjective view of “news” that is “fit to print.” That is precisely what Twitter did here: it made the editorial judgment that links to the New York Post articles were not “fit to print”—or, restated, “fit to share.”
Under FECA, then, Twitter is likely a press entity.28 Even so, under the Act press entities only get the media exemption’s protections when they act in their “legitimate press function,” which we have historically viewed under a two-part analysis: “(1) whether the entity’s materials are available to the general public, and (2) whether they are comparable in form to those ordinarily issued by the entity.”29 Twitter’s platform is available to any American willing to access it via an app or web browser. And when Twitter chooses to limit the sharing of a news story, it does
not fundamentally change the appearance or underlying function of the platform itself. Indeed, Twitter argues that its content moderation policies are central to its users’ experience and a core part of its overall commercial product.30
Accordingly, Twitter’s activities fall within our press exemption. But this regulatory safe harbor operates as a floor, not a ceiling. As the Citizens United Court noted, the judicial branch has “consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”31 So even if Twitter’s decision to limit distribution of the New York Post’s articles were not protected by the Act’s press exemption, it would likely be protected by the Constitution itself.
(h/t Shane Goldmacher)