The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Cato Amicus Brief in the Texas and Florida Social Media Cases
The brief urges the Supreme Court to reverse its badly misguided precedent in Pruneyard v. Robins.
The Cato Institute recently filed a Supreme Court amicus brief in Moody v. NetChoice and NetChoice v. Paxton, cases challenging Florida and Texas state laws barring major social media firms from using most types of content moderation. Although I serve as the B. Kenneth Simon Chair in Constitutional Studies at Cato (in addition to my primary job as a law professor at George Mason University), I was not involved in writing this brief. But I very much agree with the points made by my colleagues Thomas Berry and Anastasia Boden. They urge the Court to, if necessary, overrule its badly misguided 1980 decision in Pruneyard Shopping Center v. Robins. Here is their summary of the brief:
Two years ago, Texas passed a law declaring that large social media services are "common carriers" subject to onerous regulations dictating what speech they must disseminate. The law prohibits services from removing, demonetizing, or blocking a user or a piece of content based on the viewpoint expressed. Services found to violate this requirement face liability for each piece of content they remove.
The law was soon challenged by NetChoice and CCIA, two internet trade associations whose members operate a variety of websites covered by the law. Although a federal district court held that the law violated the First Amendment, a panel of the Court of Appeals for the Fifth Circuit reversed that decision by a 2–1 vote. The panel held that the law does not inflict a First Amendment injury because the websites "are free to say whatever they want to distance themselves from the speech they host" and thus would not be falsely identified as endorsing the speech they are forced to disseminate.
Meanwhile, Florida passed a similar law around the same time as Texas's, which was also challenged by NetChoice and CCIA. In that case, the Court of Appeals for the Eleventh Circuit struck down key portions of the law as violating the First Amendment rights of the websites.
The Supreme Court has granted review of both cases, and now Cato has filed a joint amicus brief supporting NetChoice and CCIA in both cases. There are many reasons why the laws violate the First Amendment, but our brief focuses on just one aspect of the Fifth Circuit's decision: its reliance on PruneYard Shopping Center v. Robins (1980), a flawed Supreme Court decision that should be overruled.
In PruneYard, the Supreme Court held that California could force a private shopping center to host political pamphleteers on its property. The Court held that there was no First Amendment injury to the shopping center because passersby would not likely believe that the shopping center endorsed the speakers it was forced to host. But as our brief explains, there are many reasons why compelling a private entity to disseminate speech inflicts an injury. The false appearance of endorsement is one possible relevant injury, but not the only one. Supreme Court decisions before and after PruneYard have recognized this fact, making PruneYard an outlier in First Amendment doctrine.
For example, in Wooley v. Maynard (1977), the Supreme Court held that New Hampshire could not force drivers to display the state motto "Live Free or Die" on their license plates. It did so despite the fact that drivers were highly unlikely to believe that other drivers endorsed the (required) license plates on their cars. Rather, the Court recognized that a driver was injured simply by being forced "to participate in the dissemination of an ideological message by displaying it on his private property." And before and after PruneYard, the Supreme Court has held in several cases that it is a First Amendment injury to be forced to fund the private speech of others. Here too, the harm is not in any false appearance of endorsement, but simply in the compelled support of speech.
Our brief urges the Court to overrule PruneYard and fully endorse the more comprehensive view of compelled speech that underlies both Wooley and many compelled‐funding cases. Americans have a First Amendment right not only to refrain from speaking but also to refrain from printing, funding, disseminating, staging, selling, or otherwise facilitating or supporting the speech of others. We have these rights for many reasons, not just because we (sometimes) want to avoid associating ourselves as supporters and adopters of that speech. We also may want to simply avoid spreading ideas we don't think are worth spreading.
As our brief explains, the Supreme Court does not need to overrule PruneYard for NetChoice and CCIA to win these cases, but it should overrule PruneYard sooner or later. At the very least, the Court should note PruneYard's outlier status in First Amendment doctrine and decline to extend it to these novel circumstances. The Court should reverse the Fifth Circuit and affirm the Eleventh Circuit, striking down the Texas and Florida laws as First Amendment violations.
In addition to being a badly flawed First Amendment precedent, Pruneyard is also a terrible Takings Clause precedent, for reasons outlined in two articles by Prof. Gregory Sisk (see here and here). That aspect of Pruneyard isn't before the Court in the Texas and Florida social media cases. But the justices should overrule it when and if they get the chance. In my view, the Texas and Florida laws do in fact violate the Takings Clause as well as the First Amendment. But the plaintiffs in the two cases have not pursued that issue.
I have written about the stakes in these cases in greater detail here and here.
For those keeping score, I am one of the relatively few people who simultaneously support the Fifth Circuit's recent decision to bar the White House and other federal officials from coercing social media firms to take down content they deem "misinformation" and oppose that same courts' decision (with a different panel) upholding the Texas social media law. And I have held the same views on these cases regardless of who owns Twitter/X. I didn't like many of the content moderation policies of pre-Musk Twitter, and I like Musk's own policies even less. But the owners of a site should have the right to determine which speech they want to host, and which they don't. If Musk (or any owner) wants to kick me off his site because he doesn't like my views, he should be free to do so—even if it's for a stupid reason.