The NetChoice Cases: Free Speech in a Digital Age

Written By: Nick Marasco

On February 26, the Supreme Court heard oral arguments in the NetChoice cases, which involved two state laws, out Florida and Texas, that were designed to limit the ability of social media platforms to engage in content moderation.

Who is NetChoice and what are the laws they are challenging?:

NetChoice is a trade association with members that include Meta, TikTok, X the social media platform formerly known as Twitter, and Google. Their stated mission is “to make the Internet safe for free enterprise and free expression.”

In Florida, Senate Bill 7072 was signed into law on May 21, 2021, by Governor Ron DeSantis. In signing the law, Governor DeSantis stated that Florida was taking “action to ensure that [Floridians] … are guaranteed protection against the Silicon Valley elites.” Lieutenant Governor Jeanette Nuñez added that the state was “taking back the virtual public square as a place where information and ideas can flow freely.”

The law requires internet sites that meet revenue and user thresholds to inform users of efforts to moderate content and changes the companies make to their terms of use. In addition, the Florida law prohibits the “de-platforming” of candidates running for office. The bill allows private and public entities to sue “big tech” corporations for violating the law.

Later that same year, on September 9, Texas Governor Gregg Abbott signed into law House Bill 20. In doing so, he stated that “Social media websites have become our modern-day public square,” but on these cites there is a movement to “silence conservative viewpoints and ideas.” Therefore, the law was meant to “protect first amendment rights in the Lone Star State” by prohibiting social media cites with over 50 million users from banning those users based on their political beliefs. In addition, it requires these cites to provide transparency regarding their content moderation efforts and provide an appeal process for those who are removed from the site.

Supreme Court Oral Arguments:

At oral arguments, NetChoice contended that the First Amendment only protects against government actions that infringe upon free speech, and as private companies, they cannot violate individual’s constitutional freedoms. Further, they claimed that rather than themselves violating the 1st amendment, it is they whose 1st amendment rights were being violated by the laws which in effect force them to distribute third party speech on their platforms that they would rather keep off. Finally, NetChoice analogized their actions as being akin to newspapers exercising editorial discretion, which is a necessary tool in making their platforms “useful for users and advertisers.”

On the other hand, Florida and Texas are contending that these platforms are in effect public forums and should not be permitted to engage in speech censorship, particularly, in their view, censorship that reflects and anti-conservative bias. In addition, the Florida and Texas argue that these platforms, like phone companies, transmit their user’s communication and therefore these platforms should be treated as common carriers which would allow state legislators to limit their first amendment rights as publishers of content.

Going Forward:

Commentators have noted that the likely result is that these cases will be sent back down to the lower courts in order to develop the facts of the cases more to give the justice clearly picture as to how these laws actually impact tech companies. Nevertheless, these cases raise a number of pressing issues over the role of technology in our modern society. For one thing, whether or not the platforms are in effect “public spaces” or “common carriers” will not only impact the extend of 1st amendment protections for individual users, but will directly clash with Section 230, which was originally passed to permit internet companies to engage in content moderation.

In recent decades, the Court has taken on a number of cases that tests constitutional protections against emerging technologies. In those cases, Justice Alito in particular, has repeatedly expressed his concern over the ability of the court to fashion constitutional rules governing the use of technology in society and if congress had spoken on the issue, would heavily defer to their judgment. Therefore, with the potential that the Court will delay ruling on these cases, and the recent expressions of bipartisan agreement over the need to reform Section 230, it will be interesting going forward to see how such changes may impact the analysis of these cases.