SCOTUS Rules in Favor of NetChoice in First Amendment Win

WASHINGTON—In a win for the First Amendment, the U.S. Supreme Court ruled Monday against two content moderation laws in Florida and Texas, ultimately blocking them from enforcement.

While the court simply returned the legal cases on these two laws to the lower courts for further review, Associate Justice Elena Kagan, on behalf of the unanimous court, argued that both of these laws violate the right to free speech, which has been intrinsically linked through case law to Section 230 of the Communications Decency Act.

The lawsuits in question are NetChoice et al. v. Paxton and Moody v. NetChoice et al. Both cases involve NetChoice, a trade organization representing technology companies, and the Computer & Communications Industry Association (CCIA), another trade organization.

The trade groups sued the states of Florida and Texas for adopting content moderation laws that prohibit trust and safety teams from conducting self-regulatory actions.

Far-right Republican elected officials in both states, namely Texas Gov. Greg Abbott and Florida Gov. Ron DeSantis, heralded these content moderation laws as holding large technology companies accountable for reportedly censoring controversial and extremist speech on the web.

These laws were intended to hold large technology companies accountable. Nevertheless, as NetChoice, CCIA, and dozens of civil liberties groups have argued, content moderation is a form of First Amendment-protected expression. This means that both cases have been remanded to the U.S. Fifth Circuit Court of Appeals and the Eleventh Circuit Court of Appeals.

"Today’s ruling from the Supreme Court is a victory for First Amendment rights online," commented Chris Marchese, the NetChoice Litigation Center's director, in a press release. "As our cases head back to the lower courts for consideration, the Supreme Court agreed with all our First Amendment arguments. Free speech is a cornerstone of our republic." 

Matt Schruers, president of CCIA, said, "There is nothing more Orwellian than government attempting to dictate what speech should be carried, whether it is a newspaper or a social media [website]."

Justice Kagan wrote, "On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana." Such an assessment can be applied to existing free speech cases currently before the U.S. Supreme Court.

As it stands, the adult industry trade group Free Speech Coalition and a plaintiff class of the parent companies of the largest adult platforms in the world are awaiting a review by the high court in Free Speech Coalition et al. v. Paxton. The plaintiffs are represented by Quinn Emanuel Urquhart & Sullivan and the American Civil Liberties Union. This case is pending a decision on its application for a writ of certiorari for the high court to review the arguments that age verification requirements on pornography sites go against the First Amendment.

A key element of the NetChoice cases is whether Section 230 of the Communications Decency Act can be justified to provide a safe harbor for platforms to regulate the activity of third-party users without intervention from state or federal governments.

While the Free Speech Coalition case deals with age verification, Section 230 remains one of the arguments for ruling that age verification is against the First Amendment. Adult industry stakeholders also rely on Section 230 to self-moderate potentially offensive, obscene and illegal materials. The high court's majority adds, “The First Amendment offers protection when an entity engaged in compiling and curating others’ speech into an expressive product of its own is directed to accommodate messages it would prefer to exclude."

AVN has covered the NetChoice cases extensively.