Nonprofits Urge SCOTUS to Safeguard Social Media's First Amendment Protections

The First Amendment prohibits the government from censoring, compelling or otherwise abridging speech “and protects private digital services’ decisions about what user content to publish or remove,” said an amicus brief Friday in two U.S. Supreme Court cases. The cases concern whether it's “state action” to restrict free speech when municipal officials or school board members block dissenting views on their personal social media accounts. NetChoice, the Cato Institute, Chamber of Progress and the Computer & Communications Industry Association filed the brief.

The cases before SCOTUS -- O’Connor-Ratcliff v. Garnier (docket 22-324) and Lindke v. Freed (docket 22-611) -- have identical briefing schedules. The groups submitted their amici in support of neither party in each case “to urge a decision that safeguards” critical First Amendment protections for social media companies, they said.

The groups take no position on the “narrow question” that the two coordinated cases present, said their brief. At issue is whether particular government officials’ decisions to block particular constituents on Facebook and Twitter, or to delete those constituents’ commentary from the officials’ pages and posts, are state action for purposes of the First Amendment, it said. Regardless of how SCOTUS resolves the question, the court should confirm that the private companies that own and operate those services “have the authority to revoke or deny an account to any person, and to remove or block any user content, at their sole discretion,” it said.

Even if the government officials in these cases are found to have exercised state action through their use of Facebook and Twitter, SCOTUS “should make clear that the companies involved are neither state actors nor state instrumentalities for First Amendment purposes,” said the brief. The First Amendment prohibits only governmental restrictions on free speech, it said.

That some actions by public officials using digital services may qualify as state action for First Amendment purposes doesn’t “alter that conclusion,” said the brief. Just as The Wall Street Journal doesn’t become a state actor when it publishes an opinion column by the president, “digital service providers do not become state actors when they publish content generated by public officials, or provide tools that public officials use to interact with, or block interaction with, constituents,” it said. Nor do digital service providers “become instruments of the state when they independently decide to remove content in response to government take-down requests,” it said.

Public officials “may not commandeer private actors’ editorial controls to indirectly censor user speech they could not regulate directly,” said the brief. To the extent that SCOTUS decides these cases raise this concern, “it should reiterate that any remedy for such conduct properly lies against the government,” it said. “Any rule that suggests litigants may seek recourse from the underlying digital service providers would diminish focus on government officials whose conduct violated the First Amendment,” it said. Moreover, digital services shouldn’t “be forced into the position of mediating disputes between government officials and their constituents,” it said.