The Supreme Court will hear arguments over the extent of states’ power to hold social media platforms liable for political censorship in a case with major ramifications for free speech and the broader landscape of the internet.
The court will hear oral arguments Monday in NetChoice v. Moody on Monday, a case that addresses whether states are allowed to fine Big Tech companies for censorship decisions. Technology advocates and critics both anticipate that a ruling in the case will have major implications for the application of the First Amendment to the internet and the role the government plays in regulating it.
If the court rules in favor of the two red states that implemented laws regulating content moderation, it could lead to decreased advertising, increased harassment, and government-controlled speech, industry groups say. But if the judges rule against the states, conservatives say, Big Tech will be allowed a free hand to continue engaging in malign censorship.
NetChoice v. Moody “is very simple,” Carl Szabo, vice president and general counsel of the industry group NetChoice, told the Washington Examiner. “The First Amendment applies online just like it does offline. And whether you are an individual or a business, brick and mortar or online, the government cannot force you to say something you don’t wanna say.”
NetChoice v. Moody centers on a pair of laws enacted in Florida and Texas in the wake of the pandemic meant to prevent platforms from banning politicians or, in the case of Texas, removing users on the basis of their political beliefs. The laws were created in response to conservative claims of political censorship by Big Tech, including the removal of former President Donald Trump from Twitter and the limiting of posts skeptical of COVID-19 vaccines.
The technology trade groups NetChoice and the Computer & Communications Industry Association challenged both states’ laws in district courts and successfully got them blocked. The results were appealed in circuit court, leading to Florida Attorney General Ashley Moody requesting that the Supreme Court consider the two suits.
The oral arguments will focus on two questions: whether Florida’s and Texas’s laws comply with the First Amendment and whether the laws’ restrictions on editorial decisions comply with the First Amendment. These questions are why NetChoice v. Moody is “possibly the most consequential Supreme Court case related to the internet in the technology’s history,” John Palfrey, the former director of the Berkman Klein Center for Internet & Society, said in a Harvard Law interview.
Moody’s argument centers on the idea that social media platforms can be considered the equivalent of an airline in legal terms, in the sense that they should be required to serve all comers. She argued that the states’ laws did not violate the First Amendment because social platforms are “common carriers.” The category of common carrier was originally used to define public transportation services and utilities but expanded to include radio stations and telephone services.
Being identified as a common carrier applies additional restrictions to a company’s conduct, including anti-discrimination regulations based on how necessary the company is to everyday life. For example, an airline’s common carrier status bars it from declining a customer a ticket based on their religious or political beliefs. If Facebook or X is considered a common carrier, then it would also be barred from restricting users based on their viewpoints and would only be allowed to moderate in a viewpoint-neutral manner.
“The posts [of a user] are not Facebook’s speech,” Jon Schweppe, director of policy at the conservative American Principles Project, told the Washington Examiner. “They are purely a distributor of user posts to other users. Because of that, they should be eligible to be regulated as a common carrier.” Schweppe and APP filed an amicus brief in support of Moody’s argument before the Supreme Court.
NetChoice, in contrast, argues that Big Tech companies like Facebook and Google have First Amendment rights and are not common carriers. Social media websites are “highly edited, highly curated and highly individualized,” Szabo argued. “So right on its face, the common carrier argument doesn’t make any sense.”
Even if social media companies were labeled as common carriers, they would retain First Amendment protections, Szabo said. Common carriers have had their free speech rights protected in a number of Supreme Court cases, including Pacific Gas and Electric Co. v. Public Utilities Commission, a 1987 decision determining that a corporation had the right as a publisher not to print messages it disagreed with.
Moody’s office declined a request for an interview but stated that they “look forward to defending our social media law that protects Floridians.”
Free Speech Implications
The court’s ruling in this case is expected to have far-reaching implications for social media companies across the United States.
Supporters of NetChoice have argued in amicus briefs that allowing the states to enforce their laws would invite “dire consequences” for users. For example, Texas and Florida’s laws would drive advertisers away from social media, the Chamber of Commerce argued, since most companies don’t want to see their posts next to offensive or controversial content. It could also lead to increased harassment, the Anti-Defamation League argued, since platforms would be disincentivized to remove offensive or harassing content.
The counterargument, though, is that the rules imposed by the states would only limit viewpoint discrimination rather than eliminate content moderation. “There’s certain kinds of content moderation they couldn’t do, but they could pretty much keep on doing what they’re doing right now,” Adam Gertaub, a professor of communications law at Michigan State University, told the Washington Examiner. Texas’s or Florida’s law would not stop Facebook from removing nudity, obscenity, or harassment, Gertaub argued, but it would stop the company from taking down posts promoting certain political viewpoints, such as COVID-19 vaccine skepticism.
A Pair of Free Speech Cases
NetChoice v. Moody touches on similar questions about social media and free speech as those featured in a separate major case before the court, Murthy v. Missouri. The Supreme Court will hear oral arguments on March 5 for Murthy v. Missouri, which will deal specifically with federal officials indirectly encouraging social media platforms to remove certain social media posts based on whether they concurred with traditional medical expertise during the COVID-19 pandemic.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
While the ruling in NetChoice won’t be out until well after Murthy’s oral arguments, the cases are intertwined since both deal with social media and its relationship to the First Amendment. Gertaub argued that something like Texas’ law restricting social media would have stopped the federal government from indirectly coercing Big Tech companies into removing certain posts. Szabo, in contrast, argued that a ruling in favor of the states in Netchoice would imply that “the government pressuring of social media platforms is potentially legal and not in violation of the First Amendment.”
In the end, the two cases will emphasize one point, Szabo concluded: “When the government controls speech, it’s ultimately going to be bad for everyone.”
