EPIC Urges Supreme Court to Leave the Door Open for Legislatures to Regulate Harmful Social Media Company Practices

December 8, 2023

In an amicus brief submitted to the Supreme Court Wednesday, EPIC urged the Court to recognize that, while the First Amendment protects social media companies from some regulations, it does not immunize everything they do online.

In the two related cases, Moody v. NetChoice and NetChoice v. Paxton, social media companies are suing to prevent enforcement of Texas and Florida laws that would prohibit social media companies from moderating user-generated content based on the user’s viewpoint. NetChoice sued to prevent the laws from going into effect, arguing that nearly everything social media companies do to disseminate and arrange user-generated content is free speech. The states countered that social media companies are common carriers who must carry all speech. The Eleventh Circuit agreed with NetChoice and enjoined the Florida law, while the Fifth Circuit sided with Texas. The Supreme Court chose to hear the cases to resolve whether and to what extent states can interfere with social media companies’ content moderation decisions.

EPIC filed an amicus brief to urge the Supreme Court to adopt a more nuanced position than those offered by NetChoice and the states. EPIC’s brief explains that social media companies engage in hundreds of different activities that influence what information they disseminate and how they arrange it. Some of these activities are likely expressive, but many others clearly are not. Parts of the laws at issue in this case likely violate the First Amendment because they force companies to carry user-generated content they disagree with, such as hate speech. But regulation of many other social media company activities, such as collecting and using data about their users to target content and designing platforms to be addictive, do not implicate First Amendment interests. EPIC’s brief urges the Court to use precise language to define the scope of social media companies’ protected speech to ensure that legislatures are able to pass much-needed laws regulating harmful social media data and design practices.

EPIC often files amicus briefs in cases involving social media companies.

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