SCOTUS Shouldn't 'Immunize' Platforms From State Regulation, Say 22 Democratic AGs

The Democratic attorneys general of 21 states and the District of Columbia share the concerns of the Republican AGs of Texas and Florida about the manner in which social media platforms “have transformed the way people communicate with each other.” The AGs filed an amicus brief Thursday at the U.S. Supreme Court in the challenges of NetChoice and the Computer & Communication Industry Association to defeat the Texas and Florida social media laws on First Amendment grounds.

The states “have significant interests in regulating these platforms to protect their citizens,” said the AGs' brief, submitted, they said, in support of no party in dockets 22-277 and 22-555. Any SCOTUS decision interpreting the First Amendment to “foreclose most regulation” of social media platforms would “undermine the states’ “important objectives,” it said. They urge the court “to make clear” that states “may regulate social media platforms consistent with the First Amendment,” it said.

States “across the political spectrum” share concerns about the effects of social media on their citizens, and they have responded with “a wide variety of regulatory and enforcement actions,” said the AGs’ brief. NetChoice’s argument that SCOTUS should apply heightened scrutiny to virtually any regulation or enforcement action “would jeopardize” the states’ important efforts to protect their citizens, it said.

Instead of adopting NetChoice’s approach, which would effectively “immunize” platforms from regulation, SCOTUS “should carefully consider the unique regulatory challenge posed by social media platforms,” said the brief. It should adopt “a nuanced approach” that acknowledges that there’s no “one size fits all” First Amendment analysis of state regulation of social media platforms, it said.

Some regulations target conduct, “and many of these regulations have little, if any, effect on speech,” said the brief. Even where a regulation does implicate the First Amendment, “it may apply only to commercial speech or regulate in a content-neutral way,” it said: “The appropriate level of scrutiny will vary depending on the nature of the regulation.”

SCOTUS should also recognize the states’ diverse and critical interests in regulating social media platforms to protect their citizens, “including interests distinct from the specific interests asserted by Texas and Florida here,” said the brief. As states work to “vindicate” their shared interests in protecting their citizens from “the unique risks” posed by social media platforms, SCOTUS “should scrupulously avoid an interpretation of the First Amendment that effectively immunizes platforms from meaningful regulation,” it said.