WASHINGTON, D.C. – When it comes to First Amendment cases, it’s not uncommon to see a wide variety of free speech activists and civil liberties groups all aligned on the same side of the issue. It is perhaps a bit less common to see the likes of the “United States” (by way of a brief submitted by Solicitor General Elizabeth B. Prelogar) join them there.

As the U.S. Supreme Court prepares to hear arguments in two cases involving state laws which purport to prohibit large social media platforms from censoring users and (allegedly) disfavoring certain conservative points of view, a diverse range of groups have filed amicus curiae briefs in support of NetChoice, an advocacy group with the stated mission of making the Internet “safe for free enterprise and free expression.”

In the cases before the Supreme Court, NetChoice is challenging the constitutionality of two state laws, which I’ll refer to by their respective bill numbers in this post – HB 20 in Texas and SB 7072 in Florida. The cases are styled NetChoice v. Paxton and Moody v. NetChoice, respectively.

In both cases, trial courts in the two states issued preliminary injunctions against enforcement of the laws. In the Florida case, the Eleventh Circuit Court of Appeals upheld the trial court’s injunction, while in Texas, the Fifth Circuit overturned the injunction, creating a split between the circuits and increasing the likelihood of the Supreme Court hearing arguments in each case.

Perusing the list of organizations that have filed amicus briefs in support of NetChoice, it’s hard not to notice the ideological breadth of the groups, from the conservative-leaning Goldwater Institute to the not-so-right-leaning group Public Knowledge, co-founded by attorney and former Joe Biden FCC nominee Gigi Sohn.

Sampling the content of the briefs, it’s clear to see what has united the diverse set of organizations and individuals who submitted them: A resounding, shared belief that both laws are blatantly unconstitutional.

The brief submitted by a lengthy list of “First Amendment and Internet Law Scholars” makes its point very bluntly, indeed.

“SB 7072 and HB 20 are the most radical experiments in compelled listening in United States history,” the brief states. “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.”

Noting that internet users “rely on platforms’ content moderation to cope with the overwhelming volume of speech on the Internet,” the scholars note that when platforms “prevent unwanted posts from showing up in users’ feeds, they are not engaged in censorship.”

“Quite the contrary,” the brief continues. “They are protecting users from a never-ending 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.”

In its brief, the Goldwater Institute observes that “like many conservative and libertarian organizations, it has suffered from what is sometimes labeled ‘censorship,’ notably by Facebook, which has more than once refused to relay messages GI has tried to post,” adding that Facebook’s moderation of GI posts has “proven frustrating to GI and made its mission more difficult.”

“Nevertheless—as discussed in this brief—GI respects that Facebook is a privately owned business and that its owners have property and speech rights,” the Institute adds. “Facebook and other social media companies therefore have every right to decide how to operate—and neither GI nor any other entity has a legal or moral right to compel Facebook to convey its messages.”

In another brief, the Foundation for Individual Rights and Expression flatly states that the “Eleventh Circuit is right and the Fifth Circuit is not,” adding that the Fifth Circuit’s decision in the Texas case “shows how starting off in the wrong direction inevitably leads to the wrong destination.”

“This is just one of the ways the Fifth Circuit got off on the wrong foot,” FIRE writes. “It was both facile and fallacious for that court to reject Miami Herald Publishing Co. v. Tornillo as a controlling precedent on the asserted ground that online platforms differ from twentieth century newspapers in how they respectively select and exclude content. The Fifth Circuit tried to conceal the absence of supporting precedent for its conclusions by going on offense and proclaiming (among other things) ‘the Platforms have pointed to no case applying the overbreadth doctrine to protect censorship rather than speech.’ But this misses the point in two elementary ways: First, it confuses private editorial decisions with censorship, and second, it cannot mask the court’s failure to cite a single case about media regulation that supports its conclusion.”

While the brief submitted by Solicitor General Prelogar is more measured in its tone (possibly in part because it was filed in support of the Supreme Court accepting the case, prior to the Court deciding to do so), the position of the federal government still is clear.

“(O)n the merits, the Court should affirm the Eleventh Circuit and reverse the Fifth Circuit: The platforms’ content-moderation activities are protected by the First Amendment, and the content-moderation and individualized-explanation requirements impermissibly burden those protected activities,” Prelogar asserts.

If you look at the docket for NetChoice v. Paxton, you’ll see the briefs I’ve quoted above represent a small fraction of the total submitted. In closing, I want to quote one more, this one a brief filed by the Electronic Frontier Foundation (EFF).

“The First Amendment right of social media publishers to curate and edit the user speech they publish, free from government mandates, results in a diverse array of forums for users, with unique editorial views and community norms,” the EFF notes. “Although some internet users are understandably frustrated and perplexed by the process of ‘content moderation,’ by which sites decide which users’ posts to publish, recommend, or amplify, it’s on the whole far best for internet users when the First Amendment protects the sites’ rights to make those curatorial decisions.”

Homing in on one of the few limitations Texas and Florida included in their statutes – one which narrows the scope of the laws to apply only to larger and more popular social media platforms – the EFF asserts that this narrowing isn’t standing on particularly solid First Amendment grounds, itself.

“This First Amendment right to be editorially diverse does not evaporate the moment a site reaches a certain state-determined level of popularity,” EFF states in the brief. “But both Texas House Bill 20 and Florida Senate Bill 7072 take those protections away and force popular sites to ignore their own rules and publish speech inconsistent with their editorial vision, distorting the marketplace of ideas.”

From where I sit, when the Goldwater Institute, EFF, a host of First Amendment scholars and the office of the U.S. Solicitor General all agree your state law is unconstitutional, you probably shouldn’t be shocked if the Supreme Court – yes, even this Supreme Court – ultimately agrees with them.

NetChoice v. Paxton is scheduled for argument before the Supreme Court during the court’s current (October 2023-2024) term. Per the docket, the petitioners and respondents in the two cases (in other words, the parties to the cases) must file their response briefs on the merits on or before Tuesday, January 16, 2024. Any additional brief of an amicus curiae in support must be filed on or before Tuesday, January 23, 2024.

Supreme Court image © David Lat