The Biden administration has backed the legal protection that shields major technology firms from being held accountable for curbing free expression on their platforms. The Supreme Court recently reviewed two cases involving the challenge of laws enacted by conservative states to limit social media censorship. The more comprehensive case, Netchoice v. Paxton, features NetChoice, a group funded by big tech companies, striving to overturn a Texas law that aims to safeguard its citizens from censorship. The other case, Moody v. Netchoice, contests a Florida law that bars big tech companies from censoring political figures.
During the proceedings, Justice Clarence Thomas queried Paul Clement, the attorney representing the industry group, about the potential Section 230 implications if they succeed in their cases against Florida and Texas. Section 230 of the Communications Decency Act grants platforms legal immunity for the content they host online. Nevertheless, numerous experts argue that the statute’s broad language grants excessive freedom to big tech firms to engage in censorship.
Clement contended that protection from liability and the First Amendment “are not inherently linked.”
Justice Samuel Alito inquired whether the Florida law would similarly affect Gmail, wanting to ascertain whether the law complied with the overbreadth doctrine, which states that if a law is so excessively broad that it discourages free expression, it can be invalidated due to its chilling effect.
He asked Clement, “Okay. So, does Gmail possess a First Amendment privilege to remove, for example, Tucker Carlson’s or Rachel Maddow’s Gmail accounts if they disagree with his or her viewpoints?”
Justice Brett Kavanaugh asserted that government censorship of free speech is regarded as a First Amendment infringement. However, he added, when a private entity engages in such action, it is generally considered protected editorial discretion, although one could perceive the private entity’s decision to exclude something as “private censorship.”
Kavanaugh further argued:
The First Amendment stands against that. “However much validity may be found in these arguments, at each point, the implementation of a remedy calls for some mechanism, either government or consensual. And if it’s governmental, that’s just one brings about a confrontation with the express provisions of the First Amendment. Compelling editors or publishers to publish that which reason tells them should not be published is what is at issue in this case.”
U.S. Solicitor General Elizabeth Prelogar informed the Court that the Biden administration is against the Texas and Florida laws, considering them to be unconstitutional constraints on big tech’s “expressive product.”
She stated:
These are websites featuring text elements, speech elements, photos, videos, and the platforms, which are private parties not bound by the Constitution, are deciding how they want that to look — what content to put on it, and in what order. That’s an inherently expressive act.
“The critical difference here, of course, is that these platforms are private parties, they’re not bound by the First Amendment,” Prelogar added.
“Especially for Florida, some justices expressed concern that this was brought as what is called a facial challenge, which would strike down those laws entirely,” Breitbart News senior legal contributor Ken Klukowski observed. “One option is that the court could side with one or both states in this round, then let NetChoice amend one or both lawsuits into a much narrower attack, and allow the lower courts to take a second look at what would then be called an as-applied challenge.”
The cases, titled Netchoice v. Paxton, No. 22-555, and Moody v. Netchoice, No. 22-277, are currently before the Supreme Court of the United States.
