This piece originally appeared in Tech Policy Press.
On February 26, the Supreme Court is to hear oral argument in the NetChoice cases, which concern the efforts of a trade association of technology firms to overturn recently passed laws in Texas and Florida that put restrictions on how platforms moderate content. Those laws are viewed by many experts as unconstitutional because they would improperly compel social media platforms to either carry or not carry certain kinds of otherwise legal user content. Amicus briefs filed late last year suggest the Court should have an easy basis to invalidate these laws based on First Amendment precedent, since they infringe on the rights of the platforms to exercise judgment over what speech they choose to host or not.
Of the dozens of amicus (friend of the court) briefs filed with the Court in support of NetChoice, one stands out. The eminent political scientist, Francis Fukuyama, was supported by technology law experts Daphne Keller, Jack Balkin, Margaret O’Grady, Seth Greenstein, and Robert Schwartz in submitting a brief that goes beyond simply arguing why the Florida and Texas laws are unconstitutional. It sheds new light on how legislators can limit the harms of current approaches to managing social media in a way that does not infringe on the rights of “platforms-as-editors” – or, importantly, on other parties’ First Amendment rights.
In so doing, the Fukuyama brief points to the possibility that social media content moderation and recommendation services could be managed differently, and in such a way as to better mitigate the concerns the Florida and Texas laws seek to address. It explains how the Court can overturn the two laws in a way that does not just kick the can of social media governance down a dead-end road – leading to much more wasted time and effort – but instead, could show legislators and others a way past current dilemmas. That would not only help limit harmful extremes in social media -- it would also protect both user freedom of expression, and the often neglected freedom of impression: who we associate with and listen to.
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