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In Supreme Court’s shadow, another important ruling for free speech online

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  1. Content Restrictions
If SCOTUS lets Texas’s content-moderation law stay in effect, the result will be a significant shift in internet law.

Update: On May 31, 2022, the U.S. Supreme Court granted the social media platforms’ emergency application in NetChoice v. Paxton, putting the social media censorship law on hold while the legal battle continues in the lower courts.

The free speech and press freedom community has been holding its breath this week while the U.S. Supreme Court considers an emergency application for relief in NetChoice v. Paxton, the First Amendment challenge to Texas’s content-moderation statute. If the justices let the law stay in effect, the result will be a significant shift in internet law. If the justices block the statute, the decision will be a landmark precedent on the application of traditional free speech principles to new digital platforms. But when and how the Court will ultimately act is still anyone’s guess.

In the meantime, the U.S. Court of Appeals for the Eleventh Circuit has leapt into the fray, largely striking down a similar Florida statute in a decision that splits from the result the U.S. Court of Appeals for the Fifth Circuit reached (without explanation) in Paxton. That divide will pile on the pressure on the Supreme Court to resolve the issue.

The Eleventh Circuit case, NetChoice v. Moody, is another one we’ve discussed in this newsletter (and in which the Reporters Committee has filed two briefs). Florida’s law isn’t identical to Texas’s — it included, among other oddities, a much-mocked exception for platforms in the same corporate family as a theme park — but each was originally enjoined for more or less the same reason: They deny social media platforms the ability to exercise editorial discretion, to choose what they do and don’t want to share with their audiences.

On appeal, the Eleventh Circuit agreed with that charge, concluding that most of the law’s substantive provisions likely violate the First Amendment. In an opinion by Judge Kevin Newsom, the panel rejected Florida’s effort to depict social media platforms as “dumb pipes … reflexively transmitting data from point A to point B.” Instead, the court emphasized, “social-media platforms’ content-moderation decisions constitute the same sort of editorial judgments” entitled to First Amendment protections when made by a newspaper.

On the road to that outcome, the court dispatched a string of voguish arguments that have attempted to limit the Constitution’s protections for editorial discretion to outlets that look like traditional press — claims that, as we’ve warned, are more likely to weaken press rights than bolster them. (That is, at the end of the day, those arguments lack any sort of limiting principle that would insulate other forms of media from their reach.)

With that point established, the statute’s operative provisions fell quickly; as the court noted, Florida “wagered pretty much everything on the argument that S.B. 7072’s provisions don’t trigger First Amendment scrutiny at all.” The only interest the state could name in support of its regulations was a need to enforce its own sense of editorial fairness online, an interest the panel rightly rejected as illegitimate. As Judge Newsom put it, “private actors have a First Amendment right to be ‘unfair’ — which is to say, a right to have and express their own points of view.”

The decision wasn’t a complete rout for Florida. The court upheld some of the statute’s transparency provisions — its requirements that platforms disclose their standards and provide users with view-counts on their posts, for instance — while invalidating others. (In particular, and crucially, the court concluded that the requirement that platforms’ explain their moderation decisions to affected users would be much too burdensome in light of the volume of decisions the platforms make.) In the panel’s view, all of these mandates were subject to only minimal First Amendment scrutiny because they require factual product disclosures aimed at remedying any consumer confusion.

We think this is wrong, an unfortunate consequence of the paucity of briefing on that question. Because the platforms are largely already in compliance with the requirement to post their standards, they don’t have a strong incentive to fight those provisions — even though a similar mandate would plainly raise First Amendment concerns if imposed on a newspaper.

And viewed through that lens, it should be clear that there’s nothing “uncontroversial” about requiring an editor to explain which content they find objectionable or unworthy of publishing. An editorial viewpoint isn’t a calorie count; there’s no fact of the matter about which news is and isn’t fit to print. But we’re hopeful that the Supreme Court, with an opportunity to examine those arguments in more detail, will reach a different result than the Eleventh Circuit provisionally did. And while the Eleventh Circuit refused to block enforcement of those transparency provisions for now, it also signaled that the final outcome could be different as the factual record develops.

On net, though, the decision is an important victory for publishers of all kinds who rely on the First Amendment’s protections for editorial discretion. We hope it provides guidance to the Supreme Court as the justices weigh what to do with the Fifth Circuit’s unreasoned decision.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.

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