Protecting Free Speech and Statute Constitutionality
The First Amendment generally prevents government from enacting laws “abridging the freedom of speech, or of the press.” The court of appeals in NetChoice noted that “the First Amendment’s Speech and Press Clauses ‘also protect[s] the freedom to make well-intentioned statements of one’s thoughts, particularly on matters of public concern.’” It reasoned that the First Amendment provides “no support for the Platforms’ claimed right to censor;” and the statute “does not regulate the Platforms’ speech at all; it protects other people’s speech and regulates the Platforms’ conduct.” The court found that the statute “does not chill speech; if anything, it chills censorship.”
The NetChoice court observed that its decision was reinforced by 47 U.S.C. Section 230, which reflects Congress’s judgment that platforms are not “speaking” when they host other people’s speech. The court opined that its holding was also supported by the common carriers’ doctrine, which vested the Texas legislature with the power to prevent the platforms from discriminating against Texas users. Ultimately, the NetChoice court held that House Bill 20 was constitutional because it neither compelled nor obstructed the platforms’ own speech in any way and because the platforms were not newspapers that could censor user content.
Potential Resolution by the U.S. Supreme Court
The court in NetChoice recognized a federal circuit split concerning First Amendment issues regarding social media platforms, citing a decision from the Court of Appeals for the Eleventh Circuit, NetChoice, LLC et al v. Att’y Gen. of Fla. In May 2021, Florida enacted SB 7072, which sought to protect journalistic organizations and political candidates from censorship by large social media platforms. The Eleventh Circuit in NetChoice held that platforms challenging SB 7072 were entitled to a preliminary injunction against most of that statute’s provisions.
ABA Litigation Section leaders believe this circuit split may cause the U.S. Supreme Court to weight on the issue, but not all agree on how the rift will be resolved. “The U.S. Supreme Court could weigh in on the topic now that there is a split amongst the circuits,” predicts Hon. Carlos E. Moore, Grenada, MS, cochair of the Litigation Section's Civil Rights Committee, and “the Court would follow more in line with the Fifth Circuit versus the Eleventh Circuit,” he suggests.
Other Section leaders predict a different outcome. “The U.S. Supreme Court would likely be more in line with the Eleventh Circuit,” counters George H. Freeman, New York, NY, former cochair of the Section’s First Amendment Media Subcommittee of the Civil Rights Committee. “Social media platforms are similar to newspapers with the editorial decision on what to publish or post,” he adds.