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

In a unanimous decision in the combined cases ofNetChoice vs. PaxtonAndMoody vs. NetChoicethe U.S. Supreme Court sent both cases 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 banning censorship by big tech companies of social media platforms like Facebook, TikTok and YouTube.

The Rutherford Institute filed an anamicus brief in support of state laws that treat social media platforms as open forums for free speech to protect users from viewpoint-based censorship by Big Tech companies that block, ban and remove speech they disapprove of. Lawyers for the institute argued that social media platforms have nothing to do with newspaper publishers or editors, and that blocking and removing the disapproved views of others posted on an open platform does not constitute the expression of a Big Tech company that can otherwise express its own views. Similarly, in his concurrence, Justice Alito cast doubt on “NetChoice’s baseless claim that social media platforms — which use secret algorithms to review and moderate an almost unimaginable amount of data today — are as expressive as the newspaper editors who blue-penciled typescripts 50 years ago.”

“Techno-fascism is the modern equivalent of book burning, destroying controversial ideas and the people who espouse them,” said constitutional lawyer John W. Whitehead, president of The Rutherford Institute and author ofBattlefield America: The War Against the American People“If you let government agencies and corporations determine which positions are ‘legitimate,’ you quickly find yourself on a slippery slope that ends with the censorship of all positions except Big Brother’s.”

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

NetChoice and another trade association representing major social media companies filed lawsuits challenging the laws. The Eleventh Circuit Court of Appeals ruled that Florida’s law was unconstitutional, arguing that social media companies’ decisions about content moderation are a protected exercise of editorial discretion. The Fifth Circuit, however, ruled that Texas’ law was constitutional, rejecting “the idea that companies have a freewheeling First Amendment right to censor what people say.” The Fifth Circuit cautioned that providing companies with a “not numberedright tosnoutspeech” could pave the way for “email providers, cell phone companies, and banks (to) cancel the accounts of anyone who…supports an unfavorable political party.” In its amicus brief, The Rutherford Institute called on the U.S. Supreme Court to protect Americans’ right to free speech in the modern public forum of social media. The cases will now proceed in the lower courts and could return on appeal.

Attorney Jared Harpt helped advance the arguments in the NetChoice brief. Theamicus brief and the Supreme Court opinion in theNetChoicecases are available at www.rutherford.org.