Today, TechFreedom filed an amicus brief urging the U.S. Supreme Court to hold that HB20 and SB7072, Texas’s and Florida’s social media speech codes, violate the First Amendment. These laws require social media websites to carry and promote speech against their will—including hate speech, spam, foreign propaganda, and hardcore pornography—and to comply with punitive disclosure rules. The laws also attempt to treat those websites as common carriers. TechFreedom’s brief takes aim at this faulty common-carrier theory.
“These laws are a First Amendment train wreck,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “Texas and Florida claim to be combatting ‘censorship’—but they are the true censors here. Only the state can ‘censor’ speech, and these states are doing so by trying to co-opt websites’ right to editorial control over the speech they disseminate.”
“Social media websites cannot be treated like common carriers,” Barthold continued. “These websites are expressive, like newspapers and parades. Traditional common carriers, such as railroads, transport commodity goods. Social media websites, by contrast, are constantly making decisions about whether and how to allow, block, promote, demote, remove, label, or otherwise respond to content. Curation and editing of expression is, quite simply, antithetical to the concept of common carriage.”
“The common carrier theory is a dead end,” Barthold concluded, “and the states should drop their quixotic effort to regulate free expression on the Internet.”
The cases are Moody v. NetChoice, No. 22-277 (U.S.), and NetChoice v. Paxton, No. 22-555 (U.S.).
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Find this brief and release on our website, and share it on Twitter, Bluesky, Mastodon, Facebook, and LinkedIn. We can be reached for comment at media@techfreedom.org. Read our related work, including:
- In Internet Speech Cases, SCOTUS Should Stick Up For Reno v. ACLU, Techdirt (Mar. 28, 2023)
- Our cert. stage Supreme Court amicus brief in this case (Nov. 23, 2022)
- Social Media Transparency Rules, Zauderer Standard Head to Supreme Court, Lawfare, (Sept. 27, 2022)
- Florida and Texas’ ‘Free Speech’ Social Media Laws Would Require Sites to Host Mass Shooting Videos, Daily Beast (May 26, 2022)
- Our emergency stage Supreme Court amicus brief in this case (May 17, 2022)
- Our Fifth Circuit amicus brief in this case (Apr. 8, 2022)
- Social Media “Transparency” as First Amendment Violation, Tech Policy Podcast #315 (Mar. 24, 2022)
- Our Eleventh Circuit amicus brief in this case, (Nov. 15, 2021)
- Social Media and Common Carriage: Lessons From the Litigation Over Florida’s SB 7072, WLF Legal Backgrounder (Sept. 24, 2021)
- Why Is the Republican Party Obsessed With Social Media?, Techdirt (Aug. 17, 2021)
- Trading Big Tech For Big Government Will Backfire For Conservatives, Daily Caller (June 2, 2021)
- Justice Thomas’s Misguided Concurrence on Platform Regulation, Lawfare (Apr. 14, 2021)
- No, Florida Can’t Regulate Online Speech, Lawfare (Mar. 12, 2021)
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.