68 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 69 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C speech “prohibits the state from countermanding [companies’] editorial decisions and substituting its own judgment” and forcing platforms to “disseminate third-party speech against their will and provide individualized explanations for billions of editorial decisions.” No. 22-277 Respondent’s Br. at 2; No. 22-555 Petitioner’s Br. at 13. Put another way, the First Amendment protects not just speech but also the dissemination of speech, and more specifically, choices not to disseminate speech. Further, since the laws restrict expression based on viewpoint, content, and speaker, they trigger strict scrutiny as they are presumptively unconstitutional. The laws therefore are only justified if deemed “the least restrictive means of achieving a compelling state interest.” No. 22-277 Respondent’s Br. at 35; No. 22-555 Petitioner’s Br. at 41. NetChoice and CCIA argue that the laws cannot survive strict scrutiny since “whatever interest [the State] may have in ‘ensuring that a wide variety of views reach the public’ that interest cannot justify compelling private parties to publish speech they do not want to” and because the laws are both overinclusive, by including an overly broad definition of “social media platform,” and underinclusive, since their arbitrary size requirements would exclude certain conservative-leaning platforms. In an amicus brief filed on behalf of the United States in support of NetChoice and CCIA’s position, the solicitor general argues social media companies’ decisions concerning what content is or is not displayed is expressive activity protected by the First Amendment. U.S. Amicus Br. at 10. As such, at least intermediate scrutiny applies, and the states cannot justify the laws under any potentially applicable scrutiny. Id. at 11, 27. By contrast, the Attorneys General of Florida and Texas defend the laws’ constitutionality, contending that they do not regulate the platforms’ speech but rather their conduct, which just happens to be hosting speech. Equating the platforms to the “modern public square,” the states contend that the First Amendment does not “afford those who host third-party speech a right to silence the hosted speakers or to treat them arbitrarily” and that the laws should be subject to, at most, intermediate scrutiny. No. 22-277 Petitioner’s Br. at 2; No. 22-555 Respondent’s Br. at 32-35. The states further argue that the law is supported by common carriage and public accommodation principles, namely, that “‘[t]he First Amendment’s command that government not impede freedom of speech’ allows the government ‘to ensure that private interests not restrict … the free flow of information and ideas.’” No. 22-277 Petitioner’s Br. at 43; No. 22-555 Respondent’s Br. at 13. The states further argue that the laws are narrowly tailored as they are limited to platforms with market power and do not restrict them from conveying their own messages. The states are joined by amici from, among others, 19 other states. The Court heard oral argument on February 26, 2024. This is one important case to watch, as it could turn the self-governance of social media platforms, and even e-commerce platforms, on its head. If upheld, companies will have to assess what constitutes a “social media platform” given the varying definitions under the laws, what, if any, socialbased features fall under their ambit, and whether and how to moderate user content. IP/Media I P
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