The Supreme Court vacated two lower court judgements in the case of NetChoice, LLC v. Paxton. The court decided in this case to resolve the issue of whether the First Amendment forbids viewpoint-, content-, or speaker-based laws limiting the ability for some websites to make editorial decisions about whether, and how, to publish and distribute speech, or otherwise burden those decisions with burdensome functional and reporting requirements.
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Justice Elena Kagan cited First Amendment protections for free speech in the judge’s opinion, but she also acknowledged that” today, we overturn both choices for reasons distinct from the First Amendment qualities, because neither Court of Appeals correctly assessed NetChoice’s problem.” The authorities primarily addressed the issues that the parties had raised.
However, the jury did lay the groundwork for lower courts to rule differently, place out that” the current history indicates that the Texas law does regulate speech when applied in the way the parties focused on below– when applied, that is, to avoid Facebook ( or YouTube ) from using its content- moderation standards to replace, change, manage, promote, or disclaim posts in its News Feed”.
Justice Amy Coney Barrett argued in a concurring opinion that” If NetChoice’s members are concerned about protecting their editorial discretion with respect to the services on which they have focused throughout this litigation …e. g., Facebook’s Newsfeed and YouTube’s homepage — they would be better served by bringing a First Amendment challenge as applied to those functions”.
In this case, two laws in Texas and Florida sought to regulate how social media sites control the content on their websites. These laws were abused with mixed results by lower courts. While the 5th Circuit upheld Texas ‘ law, the 11th Circuit Court of Appeals blocked a large portion of Florida’s law. However, the Supreme Court put a hold on the Texas law in 2022 while this challenge was brought up by the court.
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In response to the belief that social media companies were censoring their users, especially those with conservative views, both laws were passed in response to the Jan. 6, 2021 attacks on the U.S. Capitol, according to Amy Howe at SCOTUSblog back in February. The laws also contain provisions that require social media platforms to provide individualized explanations to users about the platforms ‘ editorial choices. They also contain provisions that restrict the choices that social media companies can make about which user-generated content to present to the public.
In his oral arguments from February’s hearing, Florida Solicitor General Henry Whitaker argued that social media sites “do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform some users.” The trade groups ‘ attorney, Paul Clement, argued that “exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers.”
Attorney General Elizabeth Prelogar sided with the trade organizations, probably because Florida and Texas are red states that want to stop conservative censorship. According to her,” state laws that restrict the speech of the platforms to enhance the relative voice of some users do n’t stand up to constitutional scrutiny.” You can read the phrase “relative voice of certain users” to mean those whose opinions do n’t fall in line with the administration’s narrative.
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The justices were all over the place during oral arguments, and it was n’t the typical liberal- conservative divide. Justices Barrett, Brett Kavanaugh, and Chief Justice John Roberts pondered whether this case was “editorial control” rather than “censorship,” while Kagan and Kagan wondered why this case was n’t” a classic First Amendment violation.”
Justice Clarence Thomas referred to “one instance of a situation where we claimed that the First Amendment protects the right to censor.” Justice Samuel Alito questioned whether” content moderation” was “actually more than a euphemism for censorship”. The justices seemed uncertain at the end of oral arguments, but now we have our answer.
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