ACLU Urges Supreme Court to Uphold Preliminary Injunctions Against Laws that Would Allow the Government to Regulate Editorial Discretion on Social Media
The ACLU argues that private platforms’ decisions about what speech to host, publish, and distribute on the internet are protected by the First Amendment and cannot be mandated by the government.
WASHINGTON – The Supreme Court today heard arguments in two cases – Moody v. NetChoice and NetChoice v. Paxton – that consider whether state laws from Florida and Texas violate the First Amendment by granting the government the power to regulate the content that appears on social media.
Under the guise of “prohibiting censorship,” these laws seek to replace the private entities’ editorial voice with preferences dictated by the government. The Florida law prohibits social media companies from banning political candidates, and limits the distribution or prioritization of posts by or about them. It also prohibits taking any action to limit distribution of posts by “journalistic enterprises.” The Texas law bars larger social media platforms from blocking, removing, or demonetizing content based on the users’ views.
In December 2023, the American Civil Liberties Union, the ACLU of Texas, and the ACLU of Florida joined a friend-of-the-court brief led by the Reporters Committee for Freedom of the Press urging the Supreme Court to strike down these laws and refuse to supplant social media companies’ editorial voice with preferences dictated by the government.
“Too often lawmakers respond to technological advances that enable speech, like the internet, with restrictive laws that infringe upon our civil liberties,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, & Technology Project. “If the laws currently before the court are allowed to go into effect not only will it open the door to increased government regulation of social media, but it will drastically alter our day-to-day experiences online, leaving us with chaos, if platforms cannot exercise editorial discretion.”
If social media companies are denied the right to determine what posts to publish then we will be confronted by a lot more distracting, unwanted, and problematic content when using the internet. For example, a platform should be able to publish posts about vaccination without having to present the views of a political candidate recommending that people drink bleach to combat COVID-19. Similarly, a platform should be able to welcome posts about anti-racism without having to host speech by neo-Nazis. And a social media site should be able to host speakers questioning the scientific basis for climate change or affirming the existence of God without having to publish contrary viewpoints. If people want any of this material, they can seek it out. But the government cannot force it upon either the platforms or the public that relies on them.
For decades, lawmakers have responded to new mediums — from movies to video games to websites — with unduly burdensome restrictions on protected speech. The courts have consistently struck these efforts down. There is a serious danger to government efforts to regulate what people can say or see online. The government has instead various methods to protect speech, including drafting consumer privacy laws that address ongoing internet safety concerns.
Learn more about the cases here.
Free Speech
NetChoice, LLC. v. Paxton
Learn More About the Issues in This Press Release
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.