DOJ Asks to Participate in Social Media Oral Argument in Support of NetChoice, CCIA

Oral argument in the tandem cases is scheduled for Feb. 26 (see 2401050031). NetChoice and CCIA have agreed to cede 10 minutes of their 30-minute argument time to the government, said Prelogar’s motions.

The two related cases present questions about whether and to what extent the First Amendment permits states to regulate social media platforms, said Prelogar’s motions. The government “has a substantial interest in the proper interpretation and application of the relevant First Amendment principles,” they said. Among other things, Congress has enacted laws governing the communications industry, including social media platforms.

At SCOTUS’ invitation, the government filed an amicus brief at the petition stage of both cases, said the motions. In that brief and in its merits stage amicus brief in both cases, the government argued that the First Amendment applies to social media companies’ content-moderation activities, they said. That’s because the companies “are engaged in expressive activity when they decide which third-party content to display to their users and how to display it,” they said.

The government further argued that the Texas law’s content-moderation and individualized-explanation requirements “cannot withstand First Amendment scrutiny,” said the motions. The government has previously presented oral argument as a party or amicus “in cases involving the proper application of the relevant First Amendment principles,” they said.

The government has also presented oral argument in other recent cases involving the application of the First Amendment “to speech posted on social-media platforms,” said the motions. The participation of the government in oral argument “is therefore likely to be of material assistance” to SCOTUS, they said.

Prelogar’s motions came amid an influx of amicus briefs in recent days supportive of the Republican attorneys general of Florida and Texas and their social media laws as Tuesday’s deadline for those viewpoint briefs approached. In one such brief, the Republican AGs of Missouri, Ohio and 17 other states argued that it's “the constitutional duty” of the states “to protect their citizens’ inherent rights, including the right to free speech.” Also joining in the brief were several Republicans from the legislature in Arizona, where the AG is a Democrat.

Just as states pass criminal and civil laws to protect citizens from private abridgment of rights of life and property, states “have a long history of regulating to protect citizens from abridgment of their free speech rights by dominant communication platforms,” said the brief. The states also have “a vital interest in hearing the speech of their citizens, especially political speech,” it said.

That interest is necessary for states to be “democratically responsive,” said the brief. NetChoice’s position “threatens these interests” because it seeks to “upend” states' longstanding authority “to prohibit mass communication networks from engaging in censorship and viewpoint discrimination,” it said.

NetChoice is “flat wrong” to contend that only the government “is capable of censorship,” said the brief. Because freedom of speech is a freedom that states were "created to secure," it's the duty of states “to secure that freedom from private abridgment, including abridgment by extraordinarily powerful communication platforms,” it said.

The states can pass criminal laws against theft and murder, said the brief. If dominant firearms dealers refuse to sell based on race, states “can regulate to secure for their citizens the right to bear arms,” it said. If dominant communication platforms “censor based on viewpoint,” states can pass laws to stop that censorship, as they have done for well more than 100 years, it said.

A state can’t, in the name of protecting free speech, “abridge the freedom of speech,” said the brief. But SCOTUS has held that the First Amendment doesn’t prohibit states “from protecting the marketplace of ideas when that marketplace is threatened by private actors,” it said.