Supreme Court Hears Oral Arguments in Key Online Speech Cases

WASHINGTON—The U.S. Supreme Court on Monday heard oral arguments in two key legal cases that could have significant implications for the First Amendment and the ability to exercise speech freely on the internet. Both cases involve NetChoice, a tech industry group. The Computer & Communications Industry Association (CCIA) is another trade association representing several of the same members of NetChoice (e.g., Instagram and Facebook parent company Meta Platforms, Google and Elon Musk's X). The two trade associations are co-plaintiffs in the two cases, NetChoice & CCIA v. Paxton and Moody v. NetChoice & CCIA.  Larry Walters, a First Amendment attorney specializing in adult industry clients, told AVN that these cases have "the potential to result in a landmark decision establishing the First Amendment rights of online platforms and the limits to state regulation of social media sites."  He added: "We remain hopeful that the Court maintains the existing injunctions against these laws and issues an opinion strongly supporting First Amendment rights." Walters also serves as general counsel for the Woodhull Freedom Foundation. Woodhull was party to an amicus brief filed by the Electronic Frontier Foundation, the National Coalition Against Censorship, and other civil society groups in support of NetChoice. Republican-controlled state legislatures in Florida and Texas adopted laws to regulate the firms behind social media websites by barring them from self-moderating and deplatforming accounts that violate their terms and conditions. Eric Goldman, a law professor at Santa Clara University School of Law, said in a statement he forwarded to AVN that these laws are troublesome. "These laws were never serious policy proposals; instead, the legislatures simply wanted to signal to voters that they hated 'Big Tech,'" said Goldman. He explained that the high court should rule that these laws are in violation of the First Amendment.  "Based on long-standing Supreme Court precedent (the Reno v. ACLU case from 1997), the laws clearly violate the First Amendment in several ways," he posited. "Has the Supreme Court's interpretation of the First Amendment changed in the intervening 27 years? If it has, [state] legislatures can and will enact censorship laws that will completely change how the internet works." House Bill 20 was adopted by the Texas state legislature during the 2021 legislative session. The state legislature in Florida adopted Senate Bill 7072, which gave similar regulatory authority to Florida officials that House Bill 20 gave Texas officials. Challenges to Florida and Texas social media regulations have been reviewed by appeals circuits after local federal district courts heard arguments from plaintiffs and defendants for and against the constitutional claims central to the debate. A panel at the U.S. Court of Appeals for the Fifth Circuit, which covers Texas, declared that House Bill 20 was constitutional. However, a panel at the Eleventh Circuit covering Florida declared Senate Bill 7072 unconstitutional. This led to the dispute in the case law and the need for clarification by the Supreme Court. Justice Brett Kavanaugh, for one, came down on the side of NetChoice and CCIA in Monday's hearing.  "The concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment," said Kavanaugh, a conservative appointee of former President Donald Trump. In light of this and similar statements Kavanaugh made throughout the oral arguments, some pundits have pointed to the controversial justice as the one who could "save the internet." "You want him casting the decisive vote. You even want him writing the Court’s opinion. Free speech on the internet needs saving, and, like it or not, he’s the man for the job," opined Corbin Barthold, an attorney serving as internet policy counsel for the civil libertarian think tank TechFreedom, in a column for The Daily Beast. AVN first reported on the United States government submitting an amicus in the NetChoice cases in August 2023.  "Our cases serve as a reminder that the United States is an exceptional country," said Chris Marchese, NetChoice litigation director. "The First Amendment not only protects free speech, free expression, and free thought from government interference. It does so unapologetically." The conservative-leaning Wall Street Journal, often critical of large technology companies, published an editorial board column Sunday supporting NetChoice and CCIA.