ACLJ Cautions Supreme Court To Tread With Care in Social Media Case

The U.S. Supreme Court has agreed to hear a potentially landmark pair of cases about Internet censorship. The American Center for Law and Justice (ACLJ) has filed a brief, as a friend of the court, “to provide a strong cautionary note about the dangers lying on both sides of this case.” At issue is a titanic battle between the states of Florida and Texas, on the one hand, and on the other, the biggest social media platforms, collectively represented by NetChoice, LLC – including, per NetChoice’s petition (p. 6), “Google (which owns YouTube), Meta (which owns Facebook and Instagram), Pinterest, TikTok, Twitter, and Vimeo.”

The states claim that the tech titans are censoring social media posts based on viewpoints (mainly excluding or downgrading conservative perspectives). Both states passed laws to stop or limit that censorship. NetChoice challenged each state’s laws in federal court, claiming that what the social media giants do is “curating” speech, an activity they argue is constitutionally protected under the First Amendment. In the federal courts of appeals, NetChoice mostly won on its challenge in the Florida case and mostly lost in the Texas case. (The statutes are different, so it is possible both lower court decisions are correct.) The respective losing parties then asked the Supreme Court to review the cases, and the high Court agreed to hear both the Florida and Texas cases.

The ACLJ’s amicus brief described the litigation as “immensely important.”

At issue in this pair of cases is, on one hand, the power of the social media titans to exclude, shadow ban, or downgrade disfavored actors and ideas (potentially including [the ACLJ] and its clients) and, on the other hand, the danger of government meddling with private speech platforms (illustrated by the Biden Administration’s manipulation of social media).

The ACLJ brief explains the dangerous downside of NetChoice’s argument:

NetChoice argues that the First Amendment protects their exclusion of speech and speakers from their platforms, calling it “editorial discretion.” e.g., Pet. at 3 (No. 22-555). But no government is entitled to review “editorial discretion”; under that characterization, the tech titans can exclude speech and speakers for no better reason than because the moguls disagree with the speaker’s viewpoint. If NetChoice were to win on that ground, then these social media titans would be free to go wild (or more likely, aggressively tilt the field while pretending to be restrained). In other words, the censorship of unwelcome viewpoints from social media platforms would likely become much more aggressive and much more frequent. That censorship would aim, under current conditions, to suppress morally traditional, culturally or politically conservative, historically Christian, pro-life, or other viewpoints that disrupt or depart from the regnant narrative.

But a ruling in favor of government regulation poses its own potential downsides:

On the other hand, if the government wins the right to regulate private media platforms, a similar risk of ideological totalitarianism arises. Consequently, any victory for the government would have to be very sharply limited, namely, to the authority to impose a requirement of neutrality of access. Otherwise, such power in the hands of government runs the great risk of metastasizing into global censorship of disfavored viewpoints. . . .

By contrast, the much more hands-off approach the government takes to such modalities as phone, mail, and email presents none of the dangers of ideological distortion. Ensuring that everyone can communicate or send material on equal terms is the opposite of tilting the playing field.

Finally, we underscore the right of mission-oriented entities, like religious platforms, to maintain their focus:

There is a vital distinction between government requiring purportedly nonpartisan, nonideological platforms like Google to provide access neutrality, on one hand, and government imposing such rules on mission-focused entities, on the other. The latter is plainly unconstitutional, and this Court should say so.

We summarize our argument as follows:

Three overarching principles should inform this Court’s analysis of these cases. First, the discriminatory exclusion of speech or speakers based on viewpoint is not ipso facto constitutionally protected free speech. To hold otherwise would be to equip a host of online giants to establish ideological totalitarianism over vast and important swaths of daily life. Second, government control over media platforms also raises the specter of imposed ideological conformity. Aside from government requiring viewpoint-neutral access (as with telephone and mail service), this Court should be very wary of empowering government to superintend private social media platforms. Third, quite different rules apply when the private entity is defined by a mission with ideological elements. Government has no authority to impair such an entity’s capability to maintain mission focus and integrity.

As we note, given the huge stakes involved, “It is essential that this Court get it right  or, perhaps more important, that this Court not get it wrong.” Our amicus brief represents the ACLJ’s contribution to helping the Court get it right.