ARTICLE 19 welcomes the US Supreme Court’s decisions in Moody v. NetChoice and NetChoice, LLC v. Paxton, which have significant implications for online freedom of expression in the US and beyond. The cases, which challenged laws in Texas and Florida designed to restrict social media platforms’ content moderation abilities, raised crucial questions about the intersection of freedom of expression and state regulation of content moderation. We commend the Supreme Court for recognising the significant freedom of expression implications raised by these cases and requiring lower courts to assess them more thoroughly. As states seek to regulate online platforms worldwide, the protection of freedom of expression should be at the heart of their considerations.
Yesterday, on 1 July 2024, the US Supreme Court sent a pair of challenges to controversial laws in Texas and Florida, restricting social media platforms’ ability to moderate content, back to the lower courts.
Barbora Bukovska, Senior Director for Law and Policy at ARTICLE 19, commented:
‘These decisions represent a crucial moment in the global conversation about freedom of expression online. They go to the heart of how states can regulate content moderation practices of major social media platforms. If upheld, the laws would have created an environment for state-controlled and politicised enforcement of content moderation online.
‘ARTICLE 19 is particularly encouraged that the Supreme Court recognised the need for a more nuanced and comprehensive analysis of how the Florida and Texas laws impact the full range of online activities, not just content moderation practices. The Court’s approach underscores the need for careful consideration of how regulations impact the diverse ecosystem of online platforms and the fundamental right to freedom of expression. This aligns with our view that any regulation of online speech must carefully consider its broad implications for freedom of expression.’
Yesterday’s rulings concern the constitutionality of Florida and Texas laws that were designed to restrict platforms’ content moderation abilities and required platforms to give reasons to users if they remove or alter their posts. The core issue for the Supreme Court was whether social media platforms had First Amendment protections for their content moderation and curation decisions. This goes to the heart of whether platforms can be compelled by law to host certain content against their will.
ARTICLE 19, with the International Justice Clinic at the University of California-Irvine School of Law and Open Net Korea, jointly filed an amicus curiae brief in the cases. We argued that the laws violated not just the First Amendment of the US Constitution, but also international freedom of expression standards under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which the USA is a party. Florida and Texas laws – while purporting to restrict platforms’ censorship practices – in fact, sought to impose vague speech regulations and provided attorney generals with broad, discretionary enforcement powers, allowing for politically-motivated enforcement. We argued that, if upheld, this type of legislation could be easily abused by authorities in the US and far beyond to repress dissent and opposition.
Although the decisions concern the laws in two US states, the decisions of the highest courts often influence policy approaches in other jurisdictions grappling with similar issues. It also highlights the increasing interconnectedness of national laws and global internet governance and the challenge of balancing freedom of expression protections with other legitimate state interest.
ARTICLE 19 would like to highlight especially the following aspects of the decisions for freedom of expression globally:
- The need for a nuanced approach to regulation: By sending the case back to the lower courts, the Supreme Court signalled that blanket restrictions on moderation of certain types of speech require thorough scrutiny, a principle relevant to similar debates worldwide.
- Consideration of diverse online entities: The Court emphasised the need to examine how the law affects various online platforms, not just those of major social media companies, reflecting the diverse nature of the internet ecosystem.
- Role of other regulation: Importantly, the Supreme Court also highlighted that social media platforms and tech companies can be subject to other, varied, regulations not related to content moderation. In particular, the Supreme Court mentioned the competition laws as a way to address problems related to market dominance and lack of user choice. This is in line with ARTICLE 19’s recommendations that to address issues in content moderation, it is important to diminish the concentration of power of a handful of dominant platforms on the digital market and reduce barriers to entry for alternative players.
As courts and legislators around the world continue to navigate these issues, they must remain mindful of the far-reaching implications of their regulatory approaches to the fundamental right to free expression in the digital age.
As these cases continue to develop, ARTICLE 19 will closely monitor its progress. We emphasise that any regulation of online speech must be narrowly tailored, subjected to rigorous constitutional scrutiny, and considerate of international human rights standards. We urge lawmakers and courts worldwide to carefully balance the need to address concerns about platform power with the imperative to protect free expression online.
ARTICLE 19 appreciates the assistance of Megan Coker and Kelli Bills, attorneys with Tillotson Johnson and Patton, who were acting as counsels for ARTICLE 19 and others in this case.