R Street Institute signs onto amicus brief in two related Supreme Court cases: Moody v. NetChoice and NetChoice v. Paxton
SUMMARY OF ARGUMENT
I. The laws here are unconstitutional because the Constitution mandates a national free-speech marketplace, unburdened by state interference.
A. As shown by its text and history, a key design of the Fourteenth Amendment was to prevent states from interfering with the free flow of ideas, as south-ern states had done with abolitionist speech before the Civil War. Much like the Commerce Clause, the Fourteenth Amendment (taken together with the First Amendment) bars states from interfering with the sovereignty of other states and thus embodies an anti-balkanization principle. Under this Court’s cases, states cannot, consistent with the First Amendment, choose how much to protect speech. But that is what Texas and Florida have attempted to do.
B. The alternative—states protecting or refusing to protect speech at will—would be 50 different speech codes. Texas and Florida, for example, both seek viewpoint neutrality but take different approaches. Texas forbids censorship based on viewpoint; Florida explicitly allows “censorship”—but requires websites to be “consistent” in how they censor. (Florida also immunizes some topics and speakers from moderation.) Inevitably, courts in each of these states will diverge on how to apply these differing standards. And the laws here go far beyond neutrality mandates. For example, Florida imposes a slew of requirements on websites that Texas does not. After taking all these requirements together, websites will be left to decide whether to leave up in Florida what must come down in Texas, and vice versa. Meanwhile, users in Florida and Texas who prefer a different content mix will not simply have to move to a different website, as they do today, but will have to move to a different state. All this assumes, of course, that it is technologically possible for websites to vary speech protections by state, but that task may exceed the abilities of the most sophisticated “geofencing” services.
Now multiply these challenges across all 50 states, and one can see the confusion and division and burdens imposed by Florida’s and Texas’s approach. No such problems beset the national free-speech marketplace required by the First Amendment.
II. The laws here are unnecessary because a free-speech marketplace is best fostered—and is already being fostered—by market forces.
A. Just six years ago, in striking down a state internet regulation, this Court warned that “extreme caution” is needed in trying to regulate the moving target that is the internet. Florida and Texas showed no such caution. The Court should weigh these states’ laws carefully, lest the First Amendment be shredded by 50 states regulating a fast-changing medium subject to fierce market forces.
Close—indeed strict—scrutiny is also required because the laws here alter the content of the web-sites’ speech, rendering the laws presumptively un-constitutional. This is true even though the websites express themselves using algorithms, which are just instructions that apply the value judgments of real people. Companies have First Amendment rights to use algorithms to help them speak more effectively. Readers have First Amendment rights to read speech produced with help from algorithms—and to read that speech on diverse platforms, each with its own distinctive speech mix. These rights are encapsulated not only in the Speech Clause, but in the Press Clause, which guards technologies that enable speech and serve readers. Websites using algorithms are every bit as much the “press” today as the printing press was in 1791.
B. Websites today compete for attention, allowing users to choose from a rich buffet of speakers—including conservative and heterodox voices often taken for granted. The largest social-media site in the world is Facebook, with over three billion users. It is dominated by speakers on the right. So often has Ben Shapiro led the rankings, for example, that National Public Radio recently declared that “Ben Shapiro rules Facebook.” Meanwhile, over on Spotify, the top podcast is hosted by frequent critic of the left Joe Rogan, whose show collects 190 million downloads a month. Other examples abound—from psychologist and free-speech advocate Jordan Peterson (almost 670 million views on YouTube), to conservative talk-show host Dave Rubin (890 million views), to centrist journalist Bari Weiss (one million followers on Twitter, now called “X”).
C. Nor are leading tech firms exempt from market forces. No company has ever ruled the tech sector for long. IBM was dethroned by Microsoft. Hewlett-Packard was beaten by Apple. AOL was bested by Yahoo, which was knocked off by Google. And the creative destruction continues. Since the Fifth Circuit christened Twitter a “monopolist,” the site was sold to a self-described free-speech absolutist. Now the over-hauled and renamed company is surrounded by competitors—including Threads (10 million daily active users), Bluesky (the eighth-ranked social-media option on Apple’s App Store), Mastodon (1.8 million monthly active users), and Truth Social (7 million downloads). This is not to mention other upstarts, including Gab and Rumble.
As a matter of constitutional principle and sound policy, then, the laws here should be struck down. The Eleventh Circuit’s judgment should be affirmed, and the Fifth Circuit’s judgment should be reversed.
Read the full amicus brief below: