Amicus Brief Blasts ‘Impermissible Intervention’ of Fla., Texas Into ‘Marketplace of Ideas’

The pair of challenges brought by NetChoice and the Computer & Communications Industry Association to the Florida and Texas social media laws presents an opportunity to bolster the U.S. Supreme Court’s “longstanding jurisprudence on state action and editorial discretion” by affirming that the First Amendment applies to internet speech “without disfavor,” said the International Center for Law & Economics in an amicus brief Monday (dockets 22-277 and 22-555) in support of NetChoice and CCIA.

The First Amendment “protects social media companies’ rights to exercise their own content moderation policies free from government interference,” said the brief. Social media companies are private actors “with the same right to editorial discretion over disseminating third-party speech as offline equivalents like newspapers and cable operators,” it said. Consistent with that jurisprudence, SCOTUS “should conclude that social media companies are private actors fully capable of taking part in the marketplace of ideas through their exercise of editorial discretion, free from government interference,” it said.

Under the First Amendment, the “general rule” is that private actors “get to decide what speech is acceptable,” said the brief. It’s not the government’s place to censor speech “or to require private actors to open their property to unwanted speech,” it said. The “market process” determines speech rules on social media platforms “just as it does in the offline world,” it said.

The First Amendment’s “animating principle” is to protect the marketplace of ideas, said the brief. To facilitate that competition, the Constitution “staunchly protects the liberty of private actors to determine what speech is acceptable, largely free from government regulation of this marketplace,” it said. One way private actors participate in the marketplace of ideas is through “private ordering,” it said. They set speech policies for their own private property, “enforceable by common law remedies under contract and property law,” it said.

Protecting private ordering “is particularly important with social media,” said the brief. Though the challenged Florida and Texas laws concern producers of social media content, producers “are only a sliver of social media users,” it said. The vast majority of social media users are “content consumers,” and it’s for their benefit that social media companies moderate content, it said.

Speech, even when lawful and otherwise protected by the First Amendment, “can still be harmful, at least from the point of view of listeners,” said the brief. Social media companies “must balance users’ demand for speech with the fact that not everyone wants to consume every possible type of speech,” it said.

The issue is “how best to optimize the benefits of speech while minimizing negative speech externalities,” said the brief. Speech produced on social media platforms “causes negative externalities when some consumers are exposed to speech they find offensive, disconcerting, or otherwise harmful,” it said. Those consumers may stop using the platform as a result, it said. But if limits on speech production are too extreme, speech producers and consumers “may seek other speech platforms,” it said.

Major social media platforms have developed moderation policies in response to market demand to protect their users from speech those users consider harmful, said the brief. That editorial control “is protected First Amendment activity,” it said. The “common carriage justifications” that Texas and Florida offer for their restrictions on social media platforms’ control over their own property don’t save the states’ “impermissible intervention into the marketplace of ideas,” it said.

Two of the most prominent legal justifications for common carriage regulation -- holding one’s property open to “all-comers” and market power -- “do not apply to social media companies,” said the brief. The major platforms “require all users to accept terms of service, which limit what speech is allowed,” it said. Assuming market power can justify common carriage, neither Florida nor Texas “even attempted to make such a finding, making at best mere assertions,” it said.

The states’ intervention “is more like treating social media platforms as company towns,” said the brief. But that’s an “outdated approach” that SCOTUS “should reject as inconsistent with First Amendment doctrine and utterly unsuitable to the Internet Age,” it said.