Washington – The Supreme Court dove into court arguments today with questions about Florida and Texas’s must-carry online content laws. The Computer & Communications Industry Association and our co-plaintiff NetChoice challenged the laws, and last year the Supreme Court blocked the laws from taking effect until after they reviewed lower court decisions recognizing the Constitutional problems. The First Amendment protects individuals and businesses from government either blocking or compelling speech.
Justices had questions about how social media platforms engage in editorial judgment – from how information is displayed to policies against spreading harmful content or disinformation – and removing users who repeatedly violate their terms of service. Justice Kavanaugh also questioned the Florida Solicitor General, who left out a key part of the First Amendment, that it applies only to government interference in speech. Justice Kagan questioned what the term “censorship” means and how it applies to editorial discretion when it’s being done by a private actor.
During questioning, the attorney arguing for CCIA and NetChoice, Paul Clement, gave an example that if a Catholic website wants to exclude comments from “a notorious Protestant,” it has that right. People often misunderstand the First Amendment only involves state action – not protecting people and businesses from each other or from the consequences that result from speech.
At times, questions about companies’ liability protections under Section 230 when removing content were raised – even though this case focused on the First Amendment. But it illustrated that some policymakers think companies do not moderate enough content and while others claim they do too much.
Ahead of the arguments today, co-petitioners CCIA and NetChoice, who are leading these constitutional challenges, had previously filed briefs (Florida and Texas) with the Supreme Court, setting forth the many reasons the laws violate the First Amendment.
CCIA has advocated for free speech online for more than 25 years.
The following can be attributed to CCIA President Matt Schruers:
“The arguments today showed that Florida and Texas are attempting to push unconstitutional laws that get the government’s role exactly backwards. The First Amendment protects individuals and businesses from the government – not the other way around. There is nothing more Orwellian than the government demanding what viewpoints are distributed in the name of free expression.
“A business saying we don’t want to host Nazi Party candidates, foreign misinformation or dangerous teen internet challenges is exercising its First Amendment rights. If people don’t like the rules of one site, they can vote with their feet or their mouse and choose a service with terms of use that are more to their liking.
“The claim by states that online companies don’t exercise considerable editorial discretion is wrong. Companies do far more curation than a newspaper or a parade through extensive algorithms and human decisions to uphold the online environment they have promised to their users. Online services are making millions of decisions every day about what type of information to carry. If that is not enough moderation to constitute editorial discretion, I don’t know what is.
“For more than 200 years, courts have upheld the First Amendment, protecting against government interference in speech. This is not a left or a right issue. There are strong defenders of the First Amendment across all branches of government and on all sides of the political spectrum. We are confident the court will see things our way and rule in favor of the First Amendment, and that will pave the way for a freer and safer internet.”