Texas, Fla. Social Media Laws Would Create ‘Chaos,’ Not ‘Public Discourse’: Amicus Brief
By elevating the private interests of individuals in expanding their audiences over the interests of the public in “workable” social media platforms, Texas and Florida “have violated not only the First Amendment right of the platforms as speakers but also the rights of the public,” said the Media Law Resource Center’s amicus brief Thursday (dockets 22-227 and 22-555) at the U.S. Supreme Court in support of the NetChoice and Computer & Communications Industry Association challenges to the Texas and Florida social media laws (see 2309290020).
The exercise of editorial discretion over content that’s amplified via mass media isn’t “a necessary evil resulting from the limited bandwidth of particular technologies,” said the brief. It’s rather “an essential element of the marketplace of ideas.” Editorial discretion “is another name for the process by which messages of lesser value have traditionally been winnowed out as ideas compete for greater audiences,” it said.
By those means, the public isn’t overwhelmed “by an incomprehensible flood of messages,” including disinformation, misinformation and “irrelevancies,” said the brief. Editorial discretion “is particularly important in the online marketplace of ideas,” it said. No human “could hope to comprehend -- let alone process and evaluate -- the vast number of messages that propagate across social media without assistance,” it said. By removing that assistance, Texas and Florida “would create chaos rather than public discourse,” it said.
Media companies express themselves through their exercise of “editorial discretion,” and that expression “is protected by the First Amendment,” said the brief. But the constitutional value of that function in the context of mass media doesn’t require that the public “understand a media company to be conveying any particular message,” it said. That’s because the public’s First Amendment interest in a functional medium of communication is itself “enabled by content moderation,” it said.
Non-media cases in which SCOTUS has focused on whether the public would derive a message from a refusal to host content are therefore “inapposite,” said the brief. Texas and Florida assert that their social media laws “are championing the First Amendment rights of individual users,” it said. But individual speakers’ interests in reaching the audience built by a private media company “are subordinated to the public’s interest in a functional marketplace of ideas,” it said.
On the few occasions in which SCOTUS has upheld a government requirement that a media company carry a limited range of content, “there have been specific technological limitations not present here,” said the brief. SCOTUS has found in those cases that the public’s interest, not the interest of individual speakers, “is the primary consideration, it said. In fact, the court’s analysis in those cases “points to the opposite result in the cases at bar,” it said.