ACLU Urges Supreme Court to Uphold Preliminary Injunctions Against Laws that Would Allow the Government to Regulate Editorial Discretion on Social Media

The ACLU argues that private platforms’ decisions about what speech to host, publish, and distribute on the internet are protected by the First Amendment and cannot be mandated by the government.

February 26, 2024 6:17 pm

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WASHINGTON – The Supreme Court today heard arguments in two cases – Moody v. NetChoice and NetChoice v. Paxton – that consider whether state laws from Florida and Texas violate the First Amendment by granting the government the power to regulate the content that appears on social media.

Under the guise of “prohibiting censorship,” these laws seek to replace the private entities’ editorial voice with preferences dictated by the government. The Florida law prohibits social media companies from banning political candidates, and limits the distribution or prioritization of posts by or about them. It also prohibits taking any action to limit distribution of posts by “journalistic enterprises.” The Texas law bars larger social media platforms from blocking, removing, or demonetizing content based on the users’ views.

In December 2023, the American Civil Liberties Union, the ACLU of Texas, and the ACLU of Florida joined a friend-of-the-court brief led by the Reporters Committee for Freedom of the Press urging the Supreme Court to strike down these laws and refuse to supplant social media companies’ editorial voice with preferences dictated by the government.

“Too often lawmakers respond to technological advances that enable speech, like the internet, with restrictive laws that infringe upon our civil liberties,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, & Technology Project. “If the laws currently before the court are allowed to go into effect not only will it open the door to increased government regulation of social media, but it will drastically alter our day-to-day experiences online, leaving us with chaos, if platforms cannot exercise editorial discretion.”

If social media companies are denied the right to determine what posts to publish then we will be confronted by a lot more distracting, unwanted, and problematic content when using the internet. For example, a platform should be able to publish posts about vaccination without having to present the views of a political candidate recommending that people drink bleach to combat COVID-19. Similarly, a platform should be able to welcome posts about anti-racism without having to host speech by neo-Nazis. And a social media site should be able to host speakers questioning the scientific basis for climate change or affirming the existence of God without having to publish contrary viewpoints. If people want any of this material, they can seek it out. But the government cannot force it upon either the platforms or the public that relies on them.

For decades, lawmakers have responded to new mediums — from movies to video games to websites — with unduly burdensome restrictions on protected speech. The courts have consistently struck these efforts down. There is a serious danger to government efforts to regulate what people can say or see online. The government has instead various methods to protect speech, including drafting consumer privacy laws that address ongoing internet safety concerns.

Learn more about the cases here.

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