For Immediate Release: August 16, 2024

Can Social Media Companies Be Regulated to Prevent Censorship? Supreme Court Avoids Deciding for Now

WASHINGTON, D.C. — In a unanimous decision in the combined cases of NetChoice v. Paxton and Moody v. NetChoice, the U.S. Supreme Court sent each case back to the lower courts for further proceedings without ruling on the merits of the First Amendment claims. The cases arose in response to laws passed by Texas and Florida to prohibit censorship by Big Tech companies on social media platforms such as Facebook, TikTok, and YouTube.

The Rutherford Institute had filed an amicus brief in support of the state laws treating social media platforms as open free speech forums to protect users from viewpoint-based censorship by Big Tech companies which block, ban, and remove speech they disapprove of. Institute attorneys argued that social media platforms are nothing like newspaper publishers or editors, and that the acts of blocking and removing the disfavored views of others which are posted on an open platform do not constitute speech by a Big Tech company, which can otherwise express its own views. Similarly, Justice Alito’s concurrence questioned “NetChoice’s unsupported assertion that social-media platforms—which use secret algorithms to review and moderate an almost unimaginable quantity of data today—are just as expressive as the newspaper editors who marked up typescripts in blue pencil 50 years ago.”

“Technofascism is the modern-day equivalent of book burning, which does away with controversial ideas and the people who espouse them,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Once you allow government agencies and corporations to determine what viewpoints are ‘legitimate,’ you’re already moving fast down a slippery slope that ends with the censorship of all viewpoints other than that of Big Brother.”

In response to increasing concerns about viewpoint-based censorship by social media companies, Texas and Florida each passed laws to prohibit such content moderation. The Texas law forbids censorship by social media platforms with more than 50 million active monthly users, like Facebook and YouTube, but the law does not prohibit removal of unlawful expression, such as that involving the sexual exploitation of children and threats of violence. The Florida law likewise applies to larger social media platforms, but it only prohibits censorship relating to candidates for office and larger “journalistic enterprises.” Both laws treat the platforms as common carriers, similar to public utilities.

NetChoice and another trade association, which represent major social media companies, filed suits challenging the laws. The Eleventh Circuit Court of Appeals found Florida’s law to be unconstitutional, reasoning that the content-moderation decisions of social media companies is a protected exercise of editorial discretion. However, the Fifth Circuit found the Texas law to be constitutional, rejecting “the idea that corporations have a freewheeling First Amendment right to censor what people say.” The Fifth Circuit warned that providing corporations with an “unenumerated right to muzzle speech” could pave the way for “email providers, mobile phone companies, and banks [to] cancel the accounts of anyone who…support[s]…a disfavored political party.” In its amicus brief, The Rutherford Institute called on the U.S. Supreme Court to protect Americans’ lawful speech in the modern public forum of social media. The lawsuits will now continue to proceed in the lower courts and could come back on appeal.

Attorney Jared Harpt assisted with advancing the arguments in the NetChoice brief. The amicus brief and Supreme Court opinion in the NetChoice cases are available at www.rutherford.org.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms. 

Source: https://tinyurl.com/nhhm55zn

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