February 4, 2024
December last year, IJC co-submitted an amicus brief to the US Supreme Court regarding a deeply influential case on social media platforms’ power to content moderation, and consequently, public discourse via social media. For this submission, we worked together with ARTICLE 19 and Open Net Korea.
The case, involving Moody v. NetChoice and NetChoice v. Paxton (known as the NetChoice case), arose from social media legislation in Florida and Texas. To summarize, these laws prohibit social media platforms of a certain size or larger from treating user posts differently based on their content or viewpoint. They also grant power to State Attorneys General to investigate and seek injunctive relief through courts.
Our submission urges, in summary, the Court to strike down these laws as the international human rights law suggests so. Here are the main points of our argument.
The Texas and Florida laws raise exactly the kinds of risks of political law enforcement the United States, under the ICCPR, is bound to prevent.
Despite the seemingly altruistic intentions apparent in these bills, their actual aim appears to eliminate the editorial discretion of these platforms, thereby promoting views favored by the current government. Moreover, the vague language and broad enforcement discretion granted to the Attorney General—allowing them to enforce the law regarding content moderation at their own discretion—facilitate the use of these laws to favor their political parties or corporate donors. This significantly increases the likelihood of drowning out opposing views.
This kind of political enforcement of speech regulation goes directly against the aims of international human rights law, particularly in maintaining and enhancing pluralistic views within society. Article 19(3) of the ICCPR outlines a reputable three-part test for any restrictions on freedom of expression: (i) ensuring specificity to prevent governments from having unfettered discretion (legality), (ii) being necessary and proportionate, and (iii) aiming to achieve legitimate goals such as the protection of national security, public order, health, or morals. Given the extremely vague language and excessively broad enforcement discretion in these laws, they would undoubtedly fail to meet the criteria set by this test.
The judicial authorization for injunctive relief falls short in mitigating the impact on freedom of expression.
Texas and Florida laws subject enforcement decisions by Attorneys General to judicial approval, albeit with certain exceptions. This is a good start– but far from solving the issues. Firstly, the mere act of an Attorney General filing a case or suggesting the possibility thereof holds significant power to intimidate platforms into chilling their content moderation, especially if the intended moderation might disfavors Attorneys General’s party or donors, giving additional yet powerful weapons to government for their “jawboning.” of platforms. Secondly, even before the Attorneys General interact with platforms, the laws themselves mandate platforms to seek prior court approval whenever they intend to moderate, drawing from the landmark US Supreme Court decision in Near v. Minnesota. This imposition of prior restraint on platforms risks transforming functional online discourse into a random—or at least chronologically organized—display of content devoid of contextualization.
We hope the Court will confidently strike down these laws. This decision not only aligns with the US’s active role in shaping the international norm of freedom of expression, but it’s also critical to prevent other countries from enacting similar legislation aimed at suppressing opposition or silencing critics of the government.
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