Private platforms’ decisions about what speech to host, publish, and distribute on the internet are protected by the First Amendment and cannot be mandated by the government.
WASHINGTON – The American Civil Liberties Union, ACLU of Texas, and ACLU of Florida yesterday joined a friend-of-the-court brief led by the Reporters Committee for Freedom of the Press urging the Supreme Court to block two laws from Texas and Florida that would regulate how large social media companies like Facebook and YouTube curate content posted on their sites. The brief was filed in two cases currently before the court – in support of respondents in Moody v. NetChoice and petitioners in NetChoice v. Paxton.
“The First Amendment protects the rights of speakers to choose what to host, display, and publish. Inherent in that right is the right to choose what not to publish and in what order; something always has to go first,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, & Technology Project. “The Supreme Court has recognized that right for everyone from booksellers to newspapers to cable companies, and this case should make clear that the same is true for social media platforms.”
Under the guise of “prohibiting censorship,” these laws seek to replace the private entities’ editorial voice with preferences dictated by the government. The Florida law prohibits social media companies from banning political candidates, limiting the distribution or prioritization of posts by or about them. It also prohibits taking any action to limit distribution of posts by “journalistic enterprises.” The Texas law bars larger social media platforms from blocking, removing, or demonetizing content based on the users’ views.
"State control over editorial choices by the news media or other industries that make such choices, including social media platforms, would be fatal in America to free speech and a free press,” said Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press. “If upheld, the theory that Texas and Florida advance would permit government officials to impose their own viewpoints on the news and information that reaches the public."
The government’s desire to have private speakers distribute more of any viewpoint is not a permissible basis for regulating the editorial decisions of private platforms. Choosing what not to publish and how to prioritize what is published is protected expression. On the very largest platforms, free expression values are best served if companies choose to preserve as much political speech as possible, including the speech of public figures. But, regardless of what platforms ought to permit as a matter of corporate policy, the government can’t constitutionally mandate what they ultimately choose.
In these cases, the Supreme Court’s established precedent for protecting editorial discretion must apply to online platforms as well. Private speech on the internet should receive at least as much First Amendment protection as print newspapers and magazines do. And social media platforms, in combining multifarious voices, exercise their First Amendment rights while also creating the space for the free expression of their users.
The brief is available online here.
This statement is available online here.