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Supreme Court Justices raise First Amendment concerns in聽NetChoice oral argument
Today, the Supreme Court of the United States held oral arguments for two consequential cases surrounding the First Amendment rights of social media platforms: NetChoice v. Paxton and Moody v. NetChoice.
Each of the cases concerns a state law, one in Texas (Paxton) and one in Florida (Moody). The Court鈥檚 resolution of each promises to clarify what, if any, role the government may play in regulating how social media platforms curate, remove, and disseminate content.
Recognizing the insidious implications of allowing the government to meddle in the editorial decisions of private publishers, FIREhas spoken out in defense of the platforms and against government interference. And today, some of the Justices asked tough questions of the lawyers representing Texas and Florida that highlight what鈥檚 at stake for free speech in these cases.
FIRE to Supreme Court: Only you can protect free speech online.
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In a new friend-of-the-court filing, FIREasks the Supreme Court to defend the right of social media platforms to decide what content to host and promote.
Chief Justice John Roberts, for example, reminded Texas Solicitor General Aaron Nielson that the First Amendment is meant to curtail government censorship, not the moderation decisions of private companies. 鈥淭he First Amendment restricts what the government can do,鈥 he said. 鈥淲hat the government is doing here is saying, 鈥榊ou must do this. You must carry these people. You鈥檝e got to explain if you don鈥檛.鈥 That鈥檚 not the First Amendment.鈥
The Chief Justice then asked Nielson a few probing questions that cut to the heart of the matter:
Who do you want to leave the judgment about who can speak or who can鈥檛 speak on these platforms? Do you want to leave it with the government 鈥 with the state? Or do you want to leave it with the platforms 鈥 the various platforms? The First Amendment has a thumb on the scale when that question is asked.
Justice Brett Kavanaugh elucidated another aspect of this argument in the Florida hearing. 鈥淚n your opening remarks, you said the design of the First Amendment is to prevent the suppression of speech,鈥 he said to Florida Solicitor General Henry C. Whitaker. 鈥淎nd you left out what I understand to be three key words to describe the First Amendment: By the government.鈥
Later in the hearing, he elaborated on this point:
When the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment. When a private individual, or private entity, makes decisions about what to include and what to exclude, that鈥檚 protected, generally, editorial discretion, even though you could view the private entity鈥檚 decision to exclude something as, quote, 鈥減rivate censorship.鈥
In an amicus curiae 鈥 鈥渇riend of the court鈥 鈥 brief filed with the Court, 果冻传媒app官方 voiced similar concerns. We argued that it鈥檚 unconstitutional for Florida and Texas to prohibit large social media platforms from moderating content based on their own standards. 鈥淭he specific features of these two schemes don鈥檛 matter that much,鈥 our brief states. 鈥淭he point is, both impose state supervision over content moderation for private speech forums.鈥 Allowing states to intervene ignores that the First Amendment was designed to protect against government power. If the laws are upheld, social media platforms would be required to permit speech that violates their rules, warned , counsel for NetChoice, discouraging users and advertisers from visiting and potentially forcing the sites to shut down access to their services in the states altogether.
As the public conversation surrounding these cases heats up and the Court weighs the arguments, we hope it keeps these fundamental First Amendment principles top of mind.
For similar reasons, FIREalso filed an amicus brief in another case that will be heard by the Court this term, Murthy v. Missouri, which surrounds government 鈥jawboning鈥 鈥 that is, pressuring private social media platforms to suppress and deplatform disfavored views. In both NetChoice cases and in Murthy, we鈥檙e urging the Court to keep the government鈥檚 hands out of online content moderation.
鈥淣o one has a 鈥榬ight鈥 to have their words printed and distributed by their preferred publisher,鈥 our NetChoice brief argues. Likewise, as our Missouri brief puts it, 鈥淣o matter how concerning it may be when private decisionmakers employ opaque or unwise moderation policies, allowing government actors to surreptitiously exercise control is far worse.鈥
Whether through heavy-handed laws or behind-the-scenes coercion, government overreach into the content moderation decisions of private entities violates the First Amendment. And it鈥檚 wrong regardless of whether it appears to benefit the political left or right.
As the public conversation surrounding these cases heats up and the Court weighs the arguments, we hope it keeps these fundamental First Amendment principles top of mind.
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