Don’t Lump Together Religious and Commercial Speech, Becket Fund Urges SCOTUS

Religious speech shouldn’t be “lumped together” with speech claims at issue in the NetChoice and Computer & Communications Industry Association challenges to the Florida and Texas social media laws, said an amicus brief Tuesday (dockets 22-277 and 22-555) at the U.S. Supreme Court from the Becket Fund for Religious Liberty in support of no party.

Proper First Amendment analysis “requires nuance,” and this case concerns a set of commercial activities that aren’t religiously motivated, said the brief. In light of the broad scope of NetChoice and CCIA members’ businesses, “treating all of their actions as deserving the same kinds of protections as sincere religious speakers” would weaken free speech rights for those that the founders “designed them for,” it said. Whichever side prevails, the court should make clear in its decision that the speech claims at issue in these appeals “are both different-in-kind from and weaker than claims by sincere religious speakers,” it said.

Religious speech has “the highest level of protection available” under the free speech clause, said the brief. SCOTUS has long recognized differences among categories of speech, and has also recognized that those categories “enjoy different levels of protection” under the free speech clause, it said. At the center of free speech protection lie “core” forms of speech, such as political and religious speech, it said.

Lower in the “hierarchy” of speech categories is commercial speech, said the brief. At the bottom of the hierarchy of speech categories are “some forms of obscene, pornographic and threatening speech,” it said. Religious speech is also different “because it possesses additional protections that non-religious speech does not,” it said.

NetChoice and CCIA “rely heavily on cases involving religious speakers,” said the brief. These are “powerful precedents,” but their power comes in large part because the plaintiffs in those cases were religious speakers, it said. “Conscience, not commerce,” determined whether those plaintiffs spoke or chose not to speak, it said. Conscience is what the founders sought to protect when they adopted the First Amendment, it said.

To be sure, the scope of protections for speech described in those precedents wasn’t limited to religious speakers, said the brief. But context matters “when drawing analogies in First Amendment cases,” it said. It’s hard to imagine contexts “more disparate” than a sole proprietor saying or refusing to speak based on her religious conscience “and some of the world’s largest companies using algorithms and artificial intelligence to make millions of selection and deselection decisions every day without human knowledge, much less human conscience,” it said.

That’s not to say NetChoice and CCIA members will “necessarily lose” under the less-protective standards applicable to speech that isn’t core religious or political speech, said the brief. If a particular NetChoice or CCIA member company thoughtfully selects what third-party speech it excludes or includes from hosting, “then it might be more like a newspaper editor, a museum curator, or even a curator of public places,” it said.

But if that member company merely excludes dangerous or illicit material from its platform, much as FedEx or UPS won’t ship munitions or child pornography, then the member company might have a much harder time making the case that it's sending a message of any sort, said the brief. By contrast, a tech company “operated on religious principles” and large enough to trigger enforcement under the Texas social media law “would have more robust First Amendment claims,” it said.