ARTICLE 19, together with the International Justice Clinic at University of California-Irvine School of Law and Open Net Korea jointly filed an amicus curiae brief before the United States Supreme Court in the cases Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton. The cases are challenges to Florida and Texas laws, respectively which impose ‘must-carry’ obligations, restricting content moderation on social media platforms. We call for both laws to be struck down as they are vague, open for abuse, and vulnerable to politicised enforcement and arbitrary application.
Barbora Bukovská, Senior Director for Law and Policy at ARTICLE 19, commented:
“The Texas and Florida laws claim that their aim is to prohibit censorship. In reality, however, they provide a powerful tool for the governments to impose on social media companies a control over public debate.
“These laws combine vague requirements for social media platforms with broad, discretionary enforcement authority vested in increasingly politicised offices of attorneys general. If upheld, this type of legislation can be easily abused by authorities far beyond the United States to repress dissent and opposition.”
Megan Coker, at Tillotson Johnson and Patton, who is counsel for ARTICLE 19 and partners, said:
“It is crucial for the U.S. Supreme Court to consider binding international norms for free expression in hearing challenges to the Texas and Florida laws. These laws threaten to introduce government censorship, self-censorship, or chaos into the online media that many global users rely on for expression and news – all in the name of certain government-favoured viewpoints. As our amicus brief argues, this cannot stand under either international standards or the U.S. Constitution’s First Amendment.”
Background to the case
The leadup to the 2020 U.S. elections saw a significant rise in misinformation and conspiracy theories being shared on social media, largely from conservative sources, including then-President Donald Trump. Some social media platforms, such as YouTube, X (formerly Twitter), and Meta responded by restricting, flagging, or altogether removing content in accordance with their terms of service. As a result, the Republican Party accused platforms of censoring conservative voices.
Texas and Florida passed laws in September and February 2021, respectively, seeking to limit content moderation on a select group of platforms perceived to have a “leftist” agenda.
The laws are now challenged at the U.S. Supreme Court by the Computer and Communications Industry Association and NetChoice who argue they are unconstitutional and violate the First Amendment. The Supreme Court is expected to hear the arguments in both cases in early 2024.
In the amicus brief, ARTICLE 19 and others argue that, as a party to the International Covenant on Civil and Political Rights (ICCPR), the United States has an obligation to uphold requirements under Article 19. Sharing core principles with the First Amendment, Article 19 of the ICCPR protects the right to free expression and information and establishes a three-part test of legality, necessity and proportionality, and legitimacy to evaluate any restriction on speech. Most relevant here is the element of legality: any regulation must be precise and transparent in its formulation, prohibiting excessive discretion in enforcement.
We argue that the Texas and Florida laws do not meet this threshold. They impose vague regulations and give attorneys general broad, discretionary enforcement powers, allowing for politically motivated enforcement.
The Texas law defines censorship broadly and provides no way for platforms to determine whether their content moderation meets the definition’s threshold, leaving platforms to guess – with great potential liability – if the decisions they take comply with the law’s requirements. The Florida law requires platforms to apply “censorship, deplatforming, and shadowbanning standards” in a consistent manner among users, but later demands different treatment for content by “journalistic enterprises” or political candidates.
Most concerningly, ARTICLE 19 and others argue that the expansive authority granted to Texas’ and Florida’s attorneys general in both laws permits them to decide whether to pursue legal action related to virtually any content moderation decision by the targeted social media platforms. Worse still, both laws enable their respective state attorneys general to act on the mere possibility of a violation. This seemingly unbounded enforcement authority makes it exceedingly easy to investigate and prosecute content moderation decisions or algorithms that do not sufficiently support the Attorney General’s preferred political viewpoint.
This expansive enforcement authority combined with vague speech regulations creates an environment ripe for selective and politicised enforcement.
ARTICLE 19, International Justice Clinic and Open Net Korea therefore urge the Supreme Court to declare Texas and Florida laws unconstitutional, in line with international free expression standards.
ARTICLE 19 appreciates the assistance of Megan Coker and Kelli Bills, attorneys with Tillotson Johnson and Patton, who are acting as counsels for ARTICLE 19 and others in this case.