SCOTUS Should ‘Make Clear’ That Digital Services Are Not ‘State Actors’: Amicus Brief

The First Amendment prohibits the government from censoring, compelling or otherwise abridging speech, while also protecting private digital services’ decisions “about what user content to publish or remove,” said a U.S. Supreme Court amicus brief Thursday (docket 23-411) from NetChoice, the Computer & Communications Industry Association, Chamber of Progress and the Cato Institute in Murthy v. Missouri. The groups urge a SCOTUS decision “that safeguards these critical protections,” said the brief. The groups take no position on “the narrow question” this case presents of whether the government’s communications with social media platforms about their content moderation decisions violated the First Amendment, said the brief. They filed the brief “to highlight two points regarding digital services’ rights,” it said. First, the government can’t bypass the First Amendment’s prohibition against laws compelling private speech “by seeking to compel speech through informal and indirect means,” it said. Second, irrespective of whether the government is found to have unconstitutionally compelled social media services to censor respondents’ speech, SCOTUS “should make clear that those digital services themselves are not state actors and may not be held liable for the government’s actions,” it said. The platforms don’t become “instruments of the state when they are compelled to remove content in response to government take-down requests,” it said. “Jawboning inflicts a First Amendment injury on the services by interfering with their rights to editorial discretion,” it said.