Texas, Fla. Social Media Laws Would ‘Undermine’ First Amendment: Amicus Brief

The First Amendment guarantees virtually insurmountable protection for a private entity’s expressive decision to share, or not to share, another speaker’s lawful expression with their own audience, said an amicus brief Tuesday at the U.S. Supreme Court from the American Civil Liberties Union, the Motion Picture Association and six other groups in support of NetChoice and the Computer & Communications Industry Association and their efforts to defeat the Texas and Florida social media laws.

While the danger of “government overreach” is most obvious when officials seek to usurp the choice of material to go into a newspaper, “the same fundamental freedom underpins a bookseller’s judgments about which volumes to display” or a movie theater’s choice of films to exhibit, said the brief, one of six filed Tuesday in support of NetChoice and CCIA. In each case, government can’t “constitutionally define what news is fit to print or which books are worth stocking,” and has no license to restrict the speech of some elements of society in order to enhance the relative voice of others, it said.

The alternative approach “would be incompatible with a free and independent press,” said the brief. But the Texas and Florida social media laws “would undermine the First Amendment’s safeguards for editorial independence to commandeer the audiences of a handful of large online platforms that, in their view, make unfair or unwise -- or even worse, biased -- judgments about the speech that deserves to be shared with their users,” it said.

To enforce their “dangerous fantasy” of a government-mandated balance of views, Texas and Florida hope to subject the editorial process of social media companies to official examination through the reporting requirements of their laws, said the brief. Both states’ efforts “challenge core mainstays” of the Supreme Court’s “long-held precedents on freedom of speech,” it said.

While Texas and Florida have chosen to target certain new digital platforms today, “they have yet to distinguish the expressive judgments their statutes target from the ones made daily by a litany of other speakers, from the traditional press to Hollywood studios,” said the brief. The states’ failure to offer a principled distinction between platforms and other speakers means that Texas' and Florida’s efforts to create a “bypass” around the First Amendment would actually “bulldoze it,” it said.

Texas and Florida have defended their statutes “on the theory that prohibiting content moderation does not implicate the First Amendment at all,” said the brief. They say that’s because social media companies don’t “resemble newspapers,” it said. But that defense “misses the point,” it said. Newspapers don’t resemble parades, parades don’t resemble utility companies and newspapers don’t resemble social media companies, it said.

That Texas and Florida have both crafted their statutes "in a manner that could be read to superficially favor the press only highlights the danger," said the brief. The states "have offered no limiting principle that would prevent them from turning their attention to controlling the editorial judgment of other private speakers, including the news media," it said.

The relevant question isn't whether the entities regulated by a statute resemble newspapers but whether the choices regulated by the statute reflect the exercise of editorial control and judgment, said the brief. Texas and Florida "have no legitimate interest in picking which speakers deserve to reach an audience,” it said.