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Court Gives a Green Light to Private Moderation Rights

9th Circuit Affirms the First Amendment Protects Businesses’ Right to Choose What Content They Host

Last week, the Ninth Circuit Court of Appeals held that the First Amendment prohibits the government from forcing private beauty pageants to accept contestants that would undermine the pageant’s values and message. The significance of Green v. Miss United States of America goes far beyond pageantry; it is also a victory in the fight for free speech online. Green reaffirms the long-held First Amendment principle that private businesses are entitled to choose what content and speakers they host.

Anita Green, a transgender woman, applied to compete in the Miss United States of America (MUSA) pageant in 2018. MUSA denied her application to compete on the basis of her gender identity, which conflicted with MUSA’s “traditional views” on femininity. Green then sued the pageant, arguing that Oregon’s Public Accommodation Act (OPAA) required MUSA to accept transgender contestants. MUSA responded that the OPAA did not apply to pageants because MUSA’s candidate selection criteria is expression protected by the First Amendment. A state law like the OPAA cannot trump the First Amendment.

The Ninth Circuit agreed with MUSA. Organizations, like pageants, which express a creative message  are not bound by forced hosting laws such as the OPAA because the First Amendment prohibits the government from making laws which abridge the freedom of speech. The Supreme Court has long construed the word “speech” broadly to extend to video games, gay pride parades and abstract artwork. Pageants also fall comfortably within its scope. Forcing MUSA to accept transgender candidates by applying the OPAA to its operations would compel the pageant to express a message about gender, femininity and identity which directly contradicts the message it wanted to send. Compelled speech – where the speaker is effectively denied control over their own message – is not free speech.

But the Ninth Circuit’s holding in Green is not really about protecting “traditional views” on gender. The First Amendment’s prohibition against compelled speech is critical for a diverse array of speakers, platforms and artists who rely on their freedom to select performers and content to convey a certain message. The Ninth Circuit’s reasoning allows Lin Manuel Miranda to exclusively feature actors of color in Hamilton. It allows Miss Asian America to limit its contestants to only those who have at least one-fourth Asian ancestry and Miss Gay America to exclude those who have undergone any feminizing hormone treatment or cosmetic surgery. Likewise, it protects DemocracyNow!, MSNBC, Fox News and Newsmax’s right to intentionally exclude certain political viewpoints. A diverse polity is best served by a diverse array of entertainment and communications businesses alike.

Compelled speech – where the speaker is effectively denied control over their own message – is not free speech.

The reasoning in Green v. Miss United States of America is consistent with the last 50 years of First Amendment jurisprudence which established robust protection for private entities’ ability to choose the messages they host. Unfortunately, the same freedom from compelled speech has recently been under attack. States have been passing laws to force online platforms to host the content and speakers politicians prefer. NetChoice’s own ongoing First Amendment lawsuits, NetChoice v. Paxton and NetChoice v. Moody, challenge two of these government attempts to coerce speech. 

To ensure the First Amendment’s critical protection against compelled speech remains intact, courts assessing forced hosting laws in the future should take care to follow the Ninth Circuit’s reasoning.