Without a doubt, the rise of the Internet has democratized communication. Now users on social media websites can reach thousands or millions of people, often at little cost, and share their ideas on everything from politics to pizza to Pillar Two. (Okay, maybe only us tax nerds talk that much about Pillar Two.) But should social media be forced by a state government to host material that the company disagrees with?
The Taxpayer Defense Center filed an amicus curiae (“friend of the court”) brief in the Supreme Court of the United States in two cases, Moody v. NetChoice and NetChoice v. Paxton, explaining the constitutional issues with new online content laws enacted by Texas and Florida. The laws in question require Twitter (now X.com), Facebook, or other websites to change how they host material, following allegations that certain points of view are not being promoted or allowed on various social media websites. The U.S. Court of Appeals for the Eleventh Circuit struck down Florida’s law, but the U.S. Court of Appeals for the Fifth Circuit upheld Texas’ similar legislation.
Our brief reviews various precedents and the history of the First Amendment, noting the danger of empowering government moderation of speech in the name of fairness. The Supreme Court has repeatedly recognized that owners of private property have a right to curate the experience of visitors, including in recent decisions such as Cedar Point Nursery v. Hassid (California law requiring farms to allow union organizers on premises a “taking” under the Fifth Amendment), Citizens United v. Federal Election Commission (affirming corporate First Amendment rights while noting that institutional press no more special than other speakers), and Manhattan Community Access Corporation. v. Halleck (private cable operators are not state actors and therefore are not subject to constitutional liability) call into question the continued viability of a case’s holdings from 1980.
Protecting this right is essential: for the First Amendment not only protects the freedom of speech, but the freedom to associate—or to not associate. Generally, many of the decisions of the Supreme Court would agree. But PruneYard Shopping Center v. Robins (1980) is an outlier, upholding a California law requiring shopping centers to allow political solicitation simply because it is a place where a lot of people gather–sometimes called a “modern town square.” Defenders of the Florida and Texas laws rely heavily on PruneYard: in the 1980s, people gathered at shopping malls, and today they gather on social media. But in both instances, the government is commandeering property in violation of constitutional rights. The concept of the town square is that it is owned by the government; popular businesses are not converted to government property just because they attract crowds. Therefore our amicus brief argues that PruneYard should be overturned.
The cases are Moody v. NetChoice LLC, U.S. No. 22-277, and NetChoice LLC v. Paxton, U.S. No. 22-555, and will be argued after briefing concludes in January 2024. We will keep you updated on developments in these cases.