The Supreme Court receives more than 7,000 requests to review lower court decisions each year, and typically grants less than 1 percent of them. But the chances of the Supreme Court reviewing the NetChoice cases are greater than those of an average dispute. A circuit split—particularly a high-profile one such as this—makes the Supreme Court more likely to take interest. Assuming that the court agrees to hear the cases, we could expect an opinion next June.
A Supreme Court opinion in the NetChoice cases, far more than Gonzalez v. Google, has the potential to upend the laissez-faire approach that courts have applied since the internet’s infancy. The NetChoice cases are about more than just liability in lawsuits; they will require the Supreme Court to decide whether online platforms have a First Amendment right to moderate user content.
No court had ever before allowed the government to force websites to publish speech. “If allowed to stand, the Fifth Circuit’s opinion will upend settled First Amendment jurisprudence and threaten to transform speech on the internet as we know it today,” NetChoice wrote.
Platforms should be free of any direct or indirect government restrictions on their ability to distribute constitutionally protected user-generated content, even if that content is distasteful or objectionable. But the platforms also should have the flexibility to set their own policies, free of government coercion, and create the environments they believe are best suited to their users. The free market—and not the government—should reward or punish these business decisions.
The outcome of the cases could reach far beyond content moderation disputes. NetChoice repeatedly relies on a 1997 Supreme Court decision, Reno v. ACLU, to argue that the Florida and Texas laws are unconstitutional. In Reno, the Supreme Court struck down a federal law that restricted the online transmission of indecent images. The federal government had argued that just as the government can restrict television stations from broadcasting indecent content, it also could limit such material on the nascent internet. But the Supreme Court disagreed. The internet, the Court wrote, is “a unique and wholly new medium of worldwide human communication.”
This conclusion led the justices to rule that the internet is not like broadcasting, and deserves the full scope of First Amendment protections. “As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it,” the Court wrote. “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”
But that was more than a quarter-century ago, when online platforms were not as central to everyday life and business. Big Tech back then was Prodigy, CompuServe, and AOL. The Supreme Court could use the NetChoice cases to rethink—and possibly limit—the hands-off approach to the internet that it articulated in Reno. Texas, for instance, argues that platforms should receive the less rigorous First Amendment protections that are afforded to cable companies.
