ACLU and ACLU of Texas Support Request Asking Supreme Court to Uphold Social Media Platforms’ Right to Moderate Content

NEW YORK — The American Civil Liberties Union and the ACLU of Texas joined an amicus brief drafted by the Reporters Committee for Freedom of the Press and filed with the U.S. Supreme Court yesterday, urging the court to issue an emergency order immediately blocking a lower court decision that would allow an unconstitutional Texas social media content moderation law to take hold.

The brief comes in NetChoice v. Paxton, a case challenging Texas law HB 20, which prohibits social media platforms that have more than 50 million active users in the United States from moderating a user’s posts because of that user’s “viewpoint.” The law thus prohibits platforms from making editorial choices about what content to host and publish online. After a Texas district court blocked the law, the U.S. Court of Appeals for the Fifth Circuit issued an order last week that would reinstate the Texas law, allowing the state to control the major social media platforms’ content moderation process. The order contained no reasoning, and stated in a footnote that the panel’s decision was not unanimous. The amicus brief argues the Texas law is unconstitutional and violates private entities’ First Amendment right to exercise editorial control on social media platforms, including their freedom to refrain from publishing speech they don’t wish to be associated with.

“If this content moderation law is allowed to go into effect, it would run headlong against the Supreme Court’s established precedent for protecting editorial discretion, and it could wreak havoc for users’ experiences on social media,” said Vera Eidelman, staff attorney with the ACLU Speech, Privacy, and Technology Project. “We urge the Supreme Court to block this unconstitutional law and protect the First Amendment rights of publishers everywhere.”

The brief argues that by prohibiting social media platforms from declining to publish content because they object to its viewpoint, HB 20 goes against Supreme Court precedent established over 40 years ago in Miami Herald Pub. Co. v. Tornillo, which held that the First Amendment protects private speakers from government regulation of their editorial discretion. In that case, the court determined that a Florida paper could not be forced to carry politicians’ responses to coverage that was critical of them, notwithstanding the size and reach of the paper. HB 20’s reach is very similar.

“Yet again, our government in Texas is attempting to hold the entire country hostage to its unconstitutional efforts to restrict civil liberties and rights,” said Kate Huddleston, staff attorney for ACLU Texas. “The First Amendment protects social media platforms’ editorial judgment, as it protects newspapers and magazines. Absent this protection, platforms will be unable to exercise that judgment.”

If HB 20 is allowed to take hold, that would mean a platform like Twitter wouldn’t be able to remove content that it considers to be hateful or inaccurate, for example. If the law is allowed to stand, HB 20’s mandate could also possibly extend to editorial control for other forms of media, including traditional news outlets. The groups argue the Fifth Circuit’s departure from the First Amendment status quo will have a chilling effect on publishers of all kinds.

The brief can be found here.