Scholars’ Amicus Brief in the NetChoice Cases

Yesterday, along with twenty colleagues — in particular Gautam Hans, who served as counsel of record — I filed an amicus brief in the Supreme Court’s cases on Florida and Texas’s anti-content-moderation social-media laws, Moody v. NetChoice and NetChoice v. Paxton. The cases involve First Amendment challenges to laws that would prohibit platforms from wide swaths of content moderation. Florida’s prohibits removing or downranking any content posted by journalistic enterprises or by or about candidates for public office; Texas’s prohibits any viewpoint-based moderation of any content at all.

Our brief argues that these laws are unconstitutional restrictions on the rights of social-media users to find and receive the speech that they want to listen to. By prohibiting most content moderation, they force platforms to show users floods of content those users find repugnant, or are simply not interested in. This, we claim, is a form of compelled listening in violation of the First Amendment.

Here is the summary of our argument:

This case raises complex questions about social-media platforms’ First Amendment rights. But Florida Senate Bill 7072 (SB 7072) and Texas House Bill 20 (HB 20) also severely restrict platform users’ First Amendment rights to select the speech they listen to. Any question here is straightforward: such intrusions on listeners’ rights are flagrantly unconstitutional.

SB 7072 and HB 20 are the most radical experiments in compelled listening in United States history. These laws would force millions of Internet users to read billions of posts they have no interest in or affirmatively wish to avoid. This is compulsory, indiscriminate listening on a mass scale, and it is flagrantly unconstitutional.

Users rely on platforms’ content moderation to cope with the overwhelming volume of speech on the Internet. When platforms prevent unwanted posts from showing up in users’ feeds, they are not engaged in censorship. Quite the contrary. They are protecting users from a neverending torrent of harassment, spam, fraud, pornography, and other abuse — as well as material that is perfectly innocuous but simply not of interest to particular users. Indeed, if platforms did not engage in these forms of moderation against unwanted speech, the Internet would be completely unusable, because users would be unable to locate and listen to the speech they do want to receive.

Although these laws purport to impose neutrality among speakers, their true effect is to systematically favor speakers over listeners. SB 7072 and HB 20 pre- vent platforms from routing speech to users who want it and away from users who do not. They convert speakers’ undisputed First Amendment right to speak without government interference into something much stronger and far more dangerous: an absolute right for speakers to have their speech successfully thrust upon users, despite those users’ best efforts to avoid it.

In the entire history of the First Amendment, listeners have always had the freedom to seek out the speech of their choice. The content-moderation restrictions of SB 7072 and HB 20 take away that freedom. On that basis alone, they can and should be held unconstitutional.

This brief brings together nearly two decades of my thinking about Internet platforms, and while I’m sorry that it has been necessary to get involved in this litigation, I’m heartened at the breadth and depth of scholars who have joined together to make sure that users are heard. On a day when it felt like everyone was criticizing universities over their positions on free speech, it was good to be able to use my position at a university to take a public stand on behalf of free speech against one of its biggest threats: censorious state governments.