Today the Committee for Justice filed a Supreme Court amicus brief in NetChoice & CCIA v. Paxton and Moody v. NetChoice & CCIA, cases challenging Texas and Florida laws that regulate how social media platforms moderate content and users. CFJ supports these challenges along with the Reason Foundation, Competitive Enterprise Institute, and Taxpayers Protection Alliance, the other organizations on the brief, which was authored by Erik Jaffe of Schaerr | Jaffe. The cases will be argued before the Court early in 2024.
Committee for Justice president Curt Levey issued the following statement:
While the Committee For Justice is sympathetic to concerns about anti-conservative bias on social media platforms, any laws designed to address those concerns must comply with the First Amendment. Because the main provisions of the Texas and Florida laws fail in that respect, we urge the Supreme Court to strike them down.
Arguments for and against these laws often get caught up in a debate about whether the platforms have freedom of speech with regard to content posted by their users. Instead, our amicus brief focuses on the freedom of association.
As the brief explains, a social media platform and the people who post on it choose to associate with a collection of content and users. That choice is protected by the First Amendment freedom of association regardless of whether the posts are characterized as the platform “speaking” in a literal sense.
Our amicus brief argues that partially or completely excluding individuals who violate a platform’s terms of engagement “is no different than the exclusion of individuals from numerous other associations based on the content, viewpoint, or manner of their expression.”
Our brief also points out that the Fifth Circuit, which upheld the Texas Law, “mistakenly concludes that size or popularity [bears] on whether an expressive association is a common carrier, public accommodation, or anything of the sort” and thus subject to less First Amendment protection. Size and popularity do not make social media platforms “a monopoly given the myriad other paths to send to and receive information from anyone interested. Indeed, they are in a market that is literally teeming with competition.”
The Committee for Justice got involved in the NetChoice cases because it is dedicated to preserving the Constitution's limits on government power and its guarantee of liberty, including the freedom of speech and association. CFJ is particularly concerned with the preservation of these principles at the intersection of law, technology and innovation.