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, [email protected]