Center for Democracy & Technology’s Post

Yesterday, the U.S. Supreme Court issued its opinion in Moody v. NetChoice, a challenge to two U.S. state laws regulating large social media companies and other internet platforms. The Court vacated the lower-court decisions "because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge." The Supreme Court was not asked to address, and did not address, one of the key questions: What should be the link, if any, between the First Amendment free speech protections and immunity from liability for the same type of speech (e.g., content prioritization)? And should the consideration of the link be different when platforms assume a dominant position on the market? #FirstAmendment #freespeech Supreme Court of the U.S. #internetlaw #cyberlaw #constitutionallaw #digitalservicesact #eulaw #section230 https://lnkd.in/eFpK5jYz

SCOTUS: Moody v. Netchoice LLC https://lnkd.in/eDZzwmHc [C]ontrary to what the Fifth Circuit thought, the current record indicates that the Texas law does regulate speech when applied in the way the parties focused on below—when applied, that is, to prevent Facebook (or YouTube) from using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts in its News Feed (or homepage). The law then prevents exactly the kind of editorial judgments this Court has previously held to receive First Amendment protection. It prevents a platform from compiling the third-party speech it wants in the way it wants, and thus from offering the expressive product that most reflects its own views and priorities. Still more, the law—again, in that specific application—is unlikely to withstand First Amendment scrutiny. Texas has thus far justified the law as necessary to balance the mix of speech on Facebook’s News Feed and similar platforms; and the record reflects that Texas officials passed it because they thought those feeds skewed against politically conservative voices. But this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others.

SCOTUS is currently hearing whether PF content moderation standards in a Florida and Texas laws infringe the First Amendment. (The outcome of this case could change the application of section 230, providing internet service providers safe harbors). While Paul Clement, arguing on behalf of NetChoice, argues that it is too burdensome to require social media platforms to provide a notice and explanation every time it blocks content (Youtube does this some billion times every quarter), the Court inquires how this would not be burdensome for his client in Europe under stricter regulations. Clement responds that the EU's requirements are - essentially - more framed on a plausibility level for justification..... In summary Ruthenberg of the NYT nails it down to: "One thing you can take away from today’s arguments it’s that even after the quarter-century since the internet became a major force in American life, the U.S. legal and political structures still don’t quite know how to handle [....] a unified legal theory or even quite the language with which to discuss it." 👌

A lot of folks in the Tech Policy Press community will be focused on oral argument in the US Supreme Court to try to discern which way the Court might rule in the NetChoice cases concerning laws in Florida and Texas that many experts regard as unconstitutional under the First Amendment. There are a lot of possible implications for the ruling that could go well beyond speech-related issues. We'll be covering the argument next week, but to help prepare you we present two items: Contributing editor Benjamin Lennett shares five key questions that will guide our analysis of the dialogue in the Court. https://lnkd.in/egFAiDue With help from Georgetown fellows Maria Fernanda Chanduví, Divya Goel, and Mateo García Silva, we've created a summary of the dozens of amicus briefs filed by various parties concerned with the outcome. #scotus #firstamendment #supremecourt #netchoice https://lnkd.in/gKdiZk_M

👀 Next week, #SCOTUS will hear two cases that could dramatically alter the legal landscape for #FreeSpeech and #ContentModeration online. CDT’s brief explains that content moderation is an editorial process that should receive strong #FirstAmendment protection from government attempts to control what #speech belongs on the Internet like the state laws at issue in the #NetChoice cases. Dig into CDT's amicus brief in Moody v. Netchoice & Netchoice v. Paxton: https://lnkd.in/egP5Tviu

Every single day, internet users share billions of pieces of content. #ContentModeration is key to maintaining services that users want to engage with, and that is made possible through #Section230. Learn the history of this legislation here:

With oral arguments tomorrow in NetChoice & CCIA v. Paxton and Moody v. NetChoice & CCIA, the Wall Street Journal Editorial Board cuts to the chase brilliantly: "it never turns out well for conservatives, or anyone else, when the supposed remedy [for speech you disagree with] is giving government more power to control speech. The Supreme Court can make that clear to Texas and Florida." https://lnkd.in/e2Cz6Fec

Our Center has filed an amicus brief in the NetChoice cases, arguing that while the Supreme Court should strike down the Texas and Florida laws restricting social media platform content moderation as unconstitutional, the Court should refrain from embracing the industry’s sweeping theory of First Amendment protection. In our NetChoice brief, we argue that the Supreme Court should not foreclose potential regulation of social media platforms that is narrowly drafted and content-neutral. We advocate regulation that would require platforms to disclose currently secret data related to topics such as how their human content moderators interact with automated moderation systems and how and why platform algorithms promote certain content that goes viral, while other content gets relatively little circulation. https://lnkd.in/eZBSbRKY

The recent Supreme Court ruling in the NetChoice cases has far-reaching implications for the tech industry and beyond. While it may have flown under the radar, this decision is set to impact various legislation and lawsuits, including those related to online safety, free speech, and age verification. As the dust settles, it's clear that this ruling will shape the future of tech policy and regulation. Stay ahead of the curve and let's dive into the key takeaways! #TechPolicy #SupremeCourt #NetChoice #Regulation #FreeSpeech https://lnkd.in/egFqJr2n