NetChoice, CCIA Briefs Blast Texas, Fla. Social Media Laws on First Amendment Grounds

The content-moderations restrictions in Texas House Bill 20 and Florida’s Senate Bill 7072 don’t “comply” with the First Amendment and should be defeated, said NetChoice and the Computer & Communications Industry Association in separate opening briefs Thursday at the U.S. Supreme Court in the tandem of social media cases.

HB-20 is “an extraordinary assertion of governmental power over expression that violates the First Amendment in multiple ways,” said the groups’ brief (docket 22-555) to defeat the Texas statute. It singles out Facebook, Instagram, Pinterest, TikTok, Vimeo, X and YouTube, it said. It forces those websites, but not comparable platforms with different perceived viewpoints, “to disseminate third-party speech against their will and provide individualized explanations for billions of editorial decisions,” it said.

Texas legislators and Texas Gov. Greg Abbott (R), who signed HB-20 into law in September 2021, weren’t “shy” about their motivation for enacting the law, said the brief. They wanted to promote conservative speech and combat perceived Silicon Valley censorship, it said.

But HB-20 is a “flagrant violation” of the First Amendment, said the brief. SCOTUS “has repeatedly rejected governmental efforts to compel private parties to disseminate speech,” it said. Those rejections have come in cases “involving everything from parade organizers to newspapers to bookstores to cable-television operators to government-franchised monopolies to websites and more,” it said.

When private parties refuse to publish speech, “they are engaged in protected First Amendment activity,” as numerous SCOTUS cases hold, said the brief. The notion that the government may compel private speech in the name of quelling censorship “turns the First Amendment on its head,” it said.

Yet that’s precisely what HB20 “seeks to do,” said the brief. Its prohibition on making editorial choices based on viewpoint “would require covered websites to display tens of millions of posts per year containing myriad messages with which they may disagree, from antisemitic speech to terrorist propaganda,” it said. Viewers and advertisers will inevitably attribute this objectionable content to the websites, it said.

Worse still, HB-20 “would force websites to provide individualized explanations each time they refuse to disseminate speech,” said the brief. Those are actions that covered websites take “literally billions of times each year,” it said. “The First Amendment tolerates none of this.”

Florida enacted SB-7072 “to punish select private parties for exercising editorial discretion in ways the state disfavors,” said the NetChoice/CCIA brief (docket 22-277) to defeat the Florida statute. Like Texas in enacting HB-20, Florida enacted SB-7072 to combat what it perceived to be a concerted effort by Big Tech to silence conservative speech on their websites, it said.

SB-7072 “singles out a handful of large websites” and requires them to disseminate a wide range of third-party speech that they don’t want to disseminate, said the brief. The law applies to Facebook and YouTube, “but it spares websites with a different perceived ideological bent like Parler and Gab,” it said. It requires covered websites “to disseminate virtually all speech by the state’s preferred speakers, no matter how blatantly or repeatedly the speaker violates the website’s terms of use,” it said.

S.B.7072 is “entirely incompatible” with the First Amendment, said the brief. Though the state is free to criticize websites for their decisions about what content to display, disseminate, remove or restrict, the First Amendment “prohibits the state from countermanding those editorial decisions and substituting its own judgment,” it said.

Just as Florida can’t tell The New York Times what opinion pieces to publish or Fox News what interviews to air, it can’t tell Facebook and YouTube what content to disseminate, said the brief. “When it comes to disseminating speech, decisions about what messages to include and exclude are for private parties -- not the government -- to make,” it said.

SB-7072 is a “compendium” of First Amendment “transgressions,” said the brief. It impermissibly compels speech, and it draws “obvious content distinctions,” compelling covered websites to disseminate some types of speech, but not others, it said. On top of that, Florida has “unabashedly singled out” certain companies for these “onerous restrictions,” based on unconcealed hostility to how they exercise their editorial discretion, it said. SB-7072 thus adds speaker and viewpoint discrimination to the law’s “list of infirmities,” it said.