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December 2023

Why MLRC Filed an Amicus Brief at the Supreme Court

By Jeff Hermes

Eagle-eyed watchers of First Amendment battles at the Supreme Court might have noticed that, at the tail end of November, the Media Law Resource Center filed a solo amicus brief with the Supreme Court in two cases: Moody v. NetChoice, LLC, No. 22-277, and NetChoice, LLC v. Paxton, No. 22-555. The Court combined amicus briefing for the two cases due to their overlapping issues; to sum them up very briefly, the cases consider whether the First Amendment allows a state (1) to prohibit social media sites from engaging in content moderation activities on the basis of a message’s content or viewpoint or (2) to compel social media sites to explain, in detail, why they blocked or restricted certain content.

When MLRC appears as an amicus, we do so in our own institutional name and do not purport to represent the views of our members. We appear as an amicus relatively rarely, and only very rarely at the Supreme Court. Moreover, in the recent past we have only appeared as an amicus before the Supreme Court as part of a coalition led by a group such as The Reporters Committee for Freedom of the Press. Indeed, in the NetChoice cases, we joined RCFP’s briefs in the district court, the Courts of Appeals, and even on a prior visit to the Supreme Court on the issue of an emergency stay. So why did we decide to break out on our own now, at the eleventh hour of these cases?

To be clear, we did not do so because we discovered some point of disagreement with the arguments being made by RCFP. The Reporters Committee has consistently relied upon Tornillo and its progeny to make cogent and persuasive arguments that the Texas and Florida laws interfere with platforms’ own speech rights as exercised through their decisions as to which speech to publish, and that interference with those rights threatens every publisher. They have also argued that that compelled explanations of publishers’ decision-making are neither commercial speech nor “purely factual and uncontroversial” under Zauderer, and that compelling explanations of content moderation decisions will chill platforms’ speech. MLRC continues to believe that those arguments are 100% correct.

However, it is not too strong a statement to say that the NetChoice cases could be as fundamental to the future of online discourse as Times v. Sullivan has been to journalism. The Texas and Florida statutes at issue in these cases represent a direct attempt by state governments to override private organizations’ decisions as to which information is proper to amplify to a mass audience. The systemic effects of these laws, and of the Court’s decision in these cases, could redefine the marketplace of ideas and have vast political, social, and economic repercussions. Now that we are before the Supreme Court, we believed that it was important to supplement the arguments made by RCFP by addressing the systemic and structural impacts of the Texas and Florida laws on the First Amendment interests of the public at large.

We often conceive of the First Amendment as being about the rights of individual speakers to convey the messages they choose, but an equally (if not more powerful) thread in First Amendment jurisprudence concerns the right of the public to receive the information that they need to guide their behavior, to improve their lives, and to participate in democratic government. The idea of the “marketplace of ideas” itself is not about the interests of individual speakers but the salutary effects of free speech for society as a whole. Times v. Sullivan’s actual malice rule was motivated not by concern for newspapers as businesses but for members of the public, so that they do not lose critical information about government officials because news outlets are afraid of liability. The First Amendment rights of the public are a consistent theme throughout the Court’s commercial speech, compelled speech, and compelled carriage jurisprudence.

The speech rights of speakers and the public are often in alignment, of course, with the marketplace of ideas depending on a multiplicity of voices. But that is not true in this case, where Texas and Florida have attempted to create a new right for individuals to reach the audiences built by private social media companies. In doing so, they would suppress the platforms’ exercise of editorial discretion, which is itself an essential function of the marketplace of ideas – i.e., the winnowing of ideas of lesser quality as they compete for greater audiences. You have a right to speak, but you need to persuade others to have them repeat and amplify your message. That principle is especially vital in the context of mass media.

Worse, without content moderation, social media platforms would become not simply unhelpful but actually unusable, because the sheer amount of information conveyed is impossible for any individual user to comprehend or to evaluate without the very tools that the states are attempting to eliminate. The Court has clearly stated that the public has a constitutional interest in the operation of media outlets to serve the ends of the First Amendment. It is inconsistent with those ends for a state to attempt to advance the interests of individual speakers at the cost of rendering social media an unintelligible, undifferentiated morass of misinformation and irrelevancies.

This is a problem separate from the impact of the Texas and Florida laws on the platforms’ own expression, and one that MLRC believed to be important to call out alongside the issues raised by RCFP. Obviously, we cannot predict which arguments will be persuasive to the Court. But if even if our brief were simply to provide a public policy gloss that nudges a member of the Court towards accepting RCFP’s arguments, we decided that would be sufficient to justify our efforts.

Jeff Hermes is a deputy director of MLRC.