Yesterday, TechFreedom filed comments explaining why Missouri’s proposed rule—forcing social media platforms to let users choose their own content moderation algorithms—violates the First Amendment. Missouri, in its effort to regulate social media, is disregarding the Court’s clear ruling that while the government can enforce competition laws, it cannot force private platforms to host speech they reject.

“Calling speech a competition or consumer protection issue does not make it so,” said Berin Szóka, President of TechFreedom. “Missouri’s core authority under the Missouri Merchandising Practices Act (MMPA) covers unfair methods of competition and unfair or deceptive acts or practices. The state’s authority, however, cannot override the First Amendment. The First Amendment constrains the government, not private actors. Forcing social media platforms to offer competing content-moderation services—so-called middleware—means forcing them to change how they speak, because decisions platforms make about the content they host are their protected speech.” 

“Under Missouri’s proposed rule, platforms would be required to cede control over how they present content,” Szóka continued. “Regulating to reduce a platform’s control over its own speech—i.e., ‘presenting a curated compilation of speech originally created by others’ —cannot be a legitimate government interest. Because ‘interfer[ing] with private actors’ speech to advance [the government’s] own vision of ideological balance’ is not a legitimate interest, Missouri’s rule will fail regardless of the level of scrutiny the Court applies. But it is also clear that the Court will ultimately apply strict scrutiny to this regulation. . . . The regulation would fail both strict and intermediate scrutiny. What the antitrust laws can regulate are pure business practices, not editorial judgments.”

“What’s happening here is shameless jawboning,” Szóka concluded. “It’s clear that this rule is part of an ongoing campaign to intimidate tech companies into changing their editorial practices to placate MAGA politicians. Since this rule was announced, Missouri has sent a series of letters to major AI operators, threatening them with legal action under Missouri’s consumer protection statute because of alleged political bias in the results generated by AI tools. Such allegations are nothing short of frivolous. As the Supreme Court recently made clear in NRA v. Vullo and Moody v. NetChoice, the government may not use legal threats to control private parties’ speech or to change the presentation of curated speech created by others.”

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About TechFreedom:TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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