What Is at Stake in the Florida, Texas First Amendment Cases – Disruptive Competition Project

After almost three years of litigation, CCIAs First Amendment challenges to two Florida and Texas social media laws have been heard by the Supreme Court. On Monday, February 26, the Justices heard oral arguments on what are being considered the First Amendment cases of the internet age. Florida and Texas passed these laws to expressively bring more government control over online content after several websites barred former President Trump for violating their terms of service in the weeks following the 2020 election.

The Florida and Texas laws would require websites to give all viewpoints equal treatment.

The question before the Court is whether the states can compel privately owned websites to disseminate content even if they disagree with it or the material violates their commitments to their users. CCIA and its co-plaintiff NetChoice have argued that no business from a newspaper to a bookstore to a website should be forced to distribute content. The First Amendment protects individuals and companies from government interference in speech, and that protection applies to both blocking speech and compelling it.

The Justices asked questions about the editorial decisions a website makes compared to a newspaper. At one point Justice Kavanaugh raised a question about the Florida Solicitor Generals characterization, noting he left out the most key part: that the First Amendment only applies to government interference in peoples speech.

This is a key point as people often misunderstand the protection of various stakeholders. The First Amendment protects individuals and businesses from the government not the other way around. There is nothing more Orwellian than the government demanding what viewpoints are distributed in the name of free expression.

But freedom of speech doesnt mean consequence-free speech. Speech can have consequences; thats why we protect it. A business saying we dont want to host Nazi Party candidates is exercising its own First Amendment rights. It has a right to determine what is said under its roof.

When Texas and Florida say websites must treat all viewpoints neutrally, what does that mean? As Schruers told CNNs The Lead with Jake Tapper, companies are in the trenches making millions of decisions in real time and not everyone is going to agree with every decision on every topic but thats where we have a marketplace of ideas. Websites get to compete on the different kinds of policies they provide. Some have very broad policies about what kind of content is appropriate in their community, while others have very strict policies. People vote with their mouse and decide where they want to hang out online. Advertisers will of course do the same.

In an interview with the Austin Fox station Monday, Schruers was asked what the Supreme Courts decision means for users. He emphasized the internet would have more harmful content if companies were forced to treat all viewpoints equally. Companies could be forced to display teen internet challenges, like a recent one encouraging them to eat detergent pods, on equal footing with Poison Control.

For internet users, the danger of the Florida and Texas social media laws is that they would tie the hands of companies trust and safety operations. They are in the trenches every day fighting against foreign disinformation and trolls.

Free speech does not mean consequence-free speech. If a website says they dont want to host Nazi party candidates, that website is exercising its own First Amendment rights.

Schruers told KTBS the Austin Fox station in a live interview the morning before Court arguments that,

Its difficult to imagine a world where the government could decide which viewpoints are disseminated on the internet. I think we can expect a decision by the end of June. A decision for Florida and Texas would be catastrophic for internet users because all kinds of harmful content would run rampant online.

However, based on the court arguments, the questions asked, and the strong First Amendment precedent in cases like Miami Herald v. Tornillo 50 years ago, it is likely the First Amendment will prevail.

There is broad consensus across all aspects of the political spectrum, and across time, that the government has no role making decisions in the marketplace of ideas and deciding which expression should be favored and which should not even if it purports to be leveling the playing field, Schruers told DCs Fox News in an interview.

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What Is at Stake in the Florida, Texas First Amendment Cases - Disruptive Competition Project