Moody v. NetChoice & NetChoice v. Paxton

Knight Institute Comments on Supreme Court Ruling In Cases Involving Florida and Texas Social Media Laws

Mon, 01 Jul 2024 00:00:00 -0700

WASHINGTON—The U.S. Supreme Court today vacated the lower courts’ rulings in the Florida and Texas legal challenges to laws limiting the power of the largest social media companies to moderate and curate speech on their platforms and require the companies to disclose certain information to the public. In December 2023, the Knight First Amendment Institute at Columbia University filed an amicus brief with the Court, urging it to reject the “extreme” arguments advanced by the platforms and the states, and arguing that, while the First Amendment protects platforms’ editorial decisions, it also leaves space for carefully drawn regulation that serves democratic values.

The following can be attributed to Jameel Jaffer, executive director of the Knight First Amendment Institute.

“This is a careful and considered ruling that decisively rejects the broadest arguments made by the states and the social media platforms. It properly recognizes that platforms are ‘editors’ under the First Amendment, but it also dismisses, for good reasons, the argument that regulation in this sphere is categorically unconstitutional. The social media companies asked for a sweeping ruling that would have placed their business models beyond the reach of regulation. The states asked for a ruling that would have given them immense power to manipulate and control public discourse online. The Court was entirely right to reject these requests, both of which would have done real harm to our democracy.”

Read today’s decision here.

Read more about Moody v. NetChoice and NetChoice v. Paxton here.

Lawyers on the Knight Institute’s brief include, in addition to Jaffer, Scott Wilkens, Alex Abdo, Ramya Krishnan, and Hannah Vester.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org.

Knight Institute Urges Supreme Court to Reject “Extreme” Arguments Made by States and Platforms in Cases Involving State Social Media Laws

Fri, 23 Feb 2024 00:00:00 -0800

WASHINGTON—The U.S. Supreme Court is set to hear arguments on Monday in two cases challenging state laws regulating social media platforms. The Florida and Texas laws at issue limit the power of the largest social media companies to moderate and curate speech on their platforms and require the companies to disclose certain information to the public. The Knight First Amendment Institute at Columbia University filed an amicus brief with the Court, urging it to reject the “extreme” arguments advanced by the platforms and the states, and arguing that, while the First Amendment protects platforms’ editorial decisions, it also leaves space for carefully drawn regulation that serves democratic values.

The following can be attributed to Jameel Jaffer, executive director of the Knight First Amendment Institute.

These cases are immensely important and will have far-reaching implications for the digital public sphere and for our democracy. It’s difficult to think of any other recent First Amendment case in which the stakes were so high.

The following can be attributed to Scott Wilkens, senior counsel at the Knight First Amendment Institute.

What the Supreme Court says in these cases could have an enormous impact on state and federal legislation going forward that tries to regulate social media platforms’ content moderation. It is important that the Court not construe the First Amendment rights of the platforms so broadly as to prevent governments from enacting carefully drawn laws that advance First Amendment values.

The Institute’s amicus brief urges the Court to invalidate both states’ must-carry provisions, which prohibit social media platforms from removing or limiting the visibility of user content in certain circumstances. The brief also urges the Court to invalidate Florida’s individualized-explanation provision, which requires platforms to notify users when any action is taken to moderate their content and to provide a detailed explanation of the reason for the action. At the same time, the brief urges the Court to uphold Texas’s individualized-explanation provision, which is far less burdensome than Florida’s and may be consistent with the First Amendment. Read the Institute’s brief here.

Read more about Moody v. NetChoice and NetChoice v. Paxton here.

Lawyers on the Institute’s amicus brief, in addition to Jaffer and Wilkens, include Alex Abdo, Ramya Krishnan, and Hannah Vester.

For more information, Adriana Lamirande, adriana.lamirande@knightcolumbia.org

In Cases Involving Florida and Texas Social Media Laws, Knight Institute Urges Supreme Court to Reject “Extreme” Arguments Made by States and Platforms

Thu, 07 Dec 2023 00:00:00 -0800

WASHINGTON—The Knight First Amendment Institute at Columbia University today filed an amicus brief in the U.S. Supreme Court in cases challenging Florida’s and Texas’s social media laws. The Institute’s brief urges the Court to invalidate both states’ must-carry provisions, which prohibit social media platforms from removing or limiting the visibility of user content in certain circumstances. The brief also urges the Court to invalidate Florida’s individualized-explanation provision, which requires platforms to notify users when any action is taken to moderate their content and to provide a detailed explanation of the reason for the action. At the same time, the brief urges the Court to uphold Texas’s individualized-explanation provision, which is far less burdensome than Florida’s and may be consistent with the First Amendment.

“The question of what limits the First Amendment imposes on legislatures’ ability to regulate social media is immensely important—for speech, and for democracy as well,“ said Jameel Jaffer, the Knight Institute’s executive director. “Unfortunately neither the states nor the social media platforms are offering the Court a compelling or defensible theory of the First Amendment in this context.”

In today’s brief, the Knight Institute asks the Court to reject the “extreme” arguments advanced by all of the parties to the case–the platforms as well as the states. The platforms contend that any regulation implicating their content-moderation decisions is likely unconstitutional, while the states argue that content-moderation decisions do not implicate the First Amendment at all. The Knight Institute urges the Court to reject both theories, explaining that social media platforms’ content-moderation decisions are protected by the First Amendment because they reflect the exercise of editorial judgment, but that laws that implicate editorial judgment can be constitutional in some circumstances.

“The platforms’ editorial decisions are protected by the First Amendment,” said Scott Wilkens, senior counsel at the Knight Institute. “But the mere fact that a regulation touches on editorial judgment does not mean the regulation is unconstitutional. As we explain in our brief, the First Amendment leaves space for carefully drawn regulation that serves democratic values.”

The Knight Institute urges the Court to hold both the Florida and Texas “must-carry” provisions unconstitutional because they override the platforms’ editorial judgment and cannot satisfy any level of heightened scrutiny. In addition, the Institute urges the Court to invalidate Florida’s individualized-explanation provision because it unduly burdens speech, but uphold Texas’s corresponding provision, which does not.

Read today’s brief here.

Read more about Moody v. NetChoice and NetChoice v. Paxton here.

Lawyers on the case, in addition to Jaffer and Wilkens, include Alex Abdo, Ramya Krishnan, and Hannah Vester for the Knight Institute.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org.

U.S. Supreme Court to Hear First Amendment Challenges to Florida and Texas Social Media Laws

Fri, 29 Sep 2023 00:00:00 -0700

WASHINGTON—The U.S. Supreme Court today agreed to hear First Amendment challenges to Florida and Texas laws that regulate social media companies–Moody v. NetChoice and NetChoice v. Paxton, respectively. Both laws limit the power of the largest social media companies to moderate speech on their platforms, and impose transparency provisions requiring the companies to disclose certain information to the public. The Knight Institute filed amicus briefs in both cases when they were on appeal to the Fifth and Eleventh Circuits. Those courts issued rulings that were deeply divided on whether the First Amendment allows the government to tell social media companies what content they may or may not publish.

The following can be attributed to Jameel Jaffer, executive director at the Knight First Amendment Institute.

“These cases could completely reshape the digital public sphere. The question of what limits the First Amendment imposes on legislatures’ ability to regulate social media is immensely important—for speech, and for democracy as well. It’s difficult to think of any other recent First Amendment cases in which the stakes were so high.”

The following can be attributed to Scott Wilkens, senior counsel at the Knight First Amendment Institute.

“These cases provide the Court with an important opportunity to clarify the constitutional limits on legislatures’ power to regulate social media. How the Court deals with the cases will have broad implications for free speech online and for democracy.”

Read the Knight Institute’s Eleventh Circuit amicus brief in Moody v. NetChoice here.

Read the Knight Institute’s Fifth Circuit amicus brief in NetChoice v. Paxton here.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org.

How the Supreme Court Could Encourage Platform Transparency

Mon, 09 Jan 2023 00:00:00 -0800

In the coming weeks, the Supreme Court is widely expected to announce that it will consider the constitutionality of controversial Florida and Texas social media laws. Thus far, the debate about these laws has focused mainly on the laws’ provisions restricting how social media companies can moderate speech on their platforms. These provisions have drawn strong criticism, and rightly so: They are plainly unconstitutional.

But how the Court deals with the laws’ transparency mandates may be just as consequential. If the Court strikes those mandates down categorically—as some First Amendment advocates are asking it to—then the digital public sphere will be poorer for it. The First Amendment shouldn’t preclude carefully drafted transparency regulations that would help the public better understand how platforms are shaping discourse online.

Both the Florida and the Texas laws include transparency provisions requiring platforms to inform users of the standards used to moderate content, notify users when their content is removed, and provide reasons for removals. Each law adds additional transparency requirements as well; the Texas law, for instance, mandates that the companies publish aggregate statistics related to their content moderation decisions and actions, while the Florida law compels them to tell users how many people have viewed their posts. Many of these transparency provisions force the companies to disclose information they have been withholding, and some no doubt require additional data gathering and reporting, all at some cost to the companies.

There is a strong argument that some of these requirements are drafted too broadly, and that they would impose too heavy a tax on the platforms’ editorial decision-making, which generally enjoys First Amendment protection. But it is one thing to say that particular transparency mandates are unconstitutional and should be struck down, and another to say that the First Amendment forecloses transparency mandates entirely, as the companies and some of their supporters seem to be arguing. The mere fact that platforms exercise editorial judgment through their content moderation decisions does not mean that any law requiring platform transparency is necessarily unconstitutional.

It is not, after all, only the platforms that have an interest in speaking here. The Florida and Texas laws were born largely out of frustrations over bans and suspensions of individual speakers, and though it is mistaken to say that social media users have First Amendment rights against private platforms, a central purpose of the First Amendment is to foster public discourse that enables democratic decision-making. A system in which users don’t understand the rules governing speech on the platforms is fundamentally at odds with this purpose. If we don’t know the rules, how are we to follow them? How are we to know if the companies themselves are following them?

There is a larger democratic interest at stake too. The platforms are where many of us get our news, debate the issues of the day, and connect with friends and family. It’s critical that we understand the effect they’re having on what we know, which is at the heart of our ability to govern ourselves. What role, for example, did the platforms play in stoking the insurrection at the Capitol on Jan. 6? Did vaccine misinformation on the platforms hamper the public health response to COVID? Are the platforms’ professed efforts to crack down on misinformation about voting and elections working? The platforms’ policies and algorithmic decisions have profound implications for the integrity and vitality of the digital public sphere—and thus far, platforms have been frustratingly opaque about their processes. If lawmakers knew what was happening on the platforms, they’d be better able to address the problems the platforms are contributing to.

The idea that transparency mandates can promote free speech isn’t new. The Supreme Court has long recognized that transparency regulation plays an important role in protecting a healthy marketplace of ideas. As the Court has explained, disclosure requirements can serve First Amendment values by giving the public access to information important to democratic decision-making. They don’t ban any speech outright. And while they might chill speech, this chilling effect can be outweighed if the free speech interests favoring disclosure are strong enough.

The courts have consequently allowed disclosure requirements in a variety of contexts. For example, the Supreme Court has blessed campaign finance disclosures to help voters make more informed decisions at the ballot box, lobbying disclosures to protect Congress from capture by special interests, and the public disclosure of referenda signatories to ensure the integrity of the referendum process. In all these cases, the Court recognized that the First Amendment interests favoring disclosure significantly outweighed the First Amendment interests against it.

So why have the transparency provisions in the Florida and Texas laws split First Amendment advocates? One reason is a fear that regulators will use disclosure mandates to punish content moderation policies they don’t like. As law professor Eric Goldman explained in a recent paper, transparency mandates can tell companies “what types of editorial practices regulators expect to see.” Wishing to remain on the right side of regulators, companies might respond by “chang[ing] their editorial decisions.”

Indeed, transparency mandates can become tools for government officials and regulators to intimidate platforms and influence their editorial decisions. In January 2021, for example, Texas Attorney General Ken Paxton issued civil investigative demands to some of the largest platforms, asking for details about their content moderation practices, a move Twitter and others interpreted as retaliation for the platforms’ banning of former President Donald Trump. It’s easy to imagine similar abuses of social media transparency laws.

But lots of laws can be used to stifle speech; that doesn’t mean we should view those laws as unconstitutional. The Paxton episode is a case in point. The attorney general’s investigation was launched under a consumer protection statute—not a social media transparency law. But no one seriously argues that every consumer protection law is unconstitutional. Nor do they say that about privacy laws, tax laws, employment discrimination laws, and SEC disclosure laws. All these laws could be abused to retaliate against companies for editorial decisions government officials don’t like, and they sometimes are. That doesn’t render them categorically unconstitutional.

What’s needed is a First Amendment framework that can account both for the value of platform disclosure and for its potential harms and costs. The Supreme Court has done some of this work already in Zauderer v. Office of Disciplinary Counsel, a case that upheld a requirement that lawyers inform their contingent-fee clients that they may have to pay court costs if they lose their case. The First Amendment disfavors laws that compel speech in certain contexts, but Zauderer established that requiring businesses to disclose factual and uncontroversial information relating to the terms on which they provide their services should be assessed less stringently than compelled disclosures of other forms of protected speech. The reason is that the disclosure of factual information in the commercial context enables consumers to make better purchasing decisions, while a business’ constitutionally protected interest in not providing this information is “minimal.”

Some advocates argue that Zauderer is a poor fit for platform transparency mandates because so far the Supreme Court has applied it only to laws intended to address deception in commercial advertising. But lower courts have repeatedly recognized that the case’s reasoning applies more broadly. What’s more, applying Zauderer here could help courts strike an appropriate balance between the companies’ free speech rights and the First Amendment interests of users and the broader public in greater transparency.

Here’s how Zauderer review would work. To be constitutional, a disclosure requirement would have to be “reasonably related” to a legitimate government interest and, critically, not “unjustified and unduly burdensome.” In other constitutional contexts, the “undue burden” test has been applied on a sliding scale: The more substantial the burden, the more work the government has to do to justify it. In cases involving platform transparency mandates, courts should apply a similar principle, with an eye toward protecting both the public interest and the platform’s core First Amendment right to make editorial decisions. Some disclosures will be seen to further public understanding of the platforms’ services while implicating editorial decisions only at the margins, if at all. But the more that a disclosure could chill platforms’ editorial decision-making, the more clearly the government would need to show that it furthered an important interest.

Of course, even mandates that satisfied this standard could be abused, and courts would need to carefully watch how transparency measures are used in practice. In some cases, it would be important for courts to quash or limit demands for information—for example, when it appeared that information was being sought for partisan or political reasons. There is precedent for this: In its landmark 1964 NAACP v. Alabama civil rights decision, the Supreme Court held that Alabama could not compel the NAACP to disclose its list of members, even though the state said this information was necessary to investigate the organization’s compliance with a corporate registration law. The Court correctly understood that, in the context of the Jim Crow South, requiring the NAACP to surrender this list would subject members to economic reprisals, physical threats, and other serious forms of public hostility, imposing a substantial burden on their First Amendment freedom of association.

Courts addressing First Amendment challenges to platform transparency requirements can and should be vigilant against potential chilling effects. But they shouldn’t adopt a theory of the First Amendment that forecloses such regulation entirely. To do so would threaten other vital free speech and democratic values the First Amendment is meant to promote and serve.