Washington, D.C. — The American Economic Liberties Project, along with a group of distinguished academics, filed an amicus brief in the Supreme Court case, NetChoice v. Paxton, arguing that the Court should refuse to extend heightened First Amendment protections to social media platforms that hold themselves out as modern-day public squares. As the brief argues, to hold otherwise would effectively immunize monolithic entities like Meta, Twitter, and TikTok from any meaningful regulation in the future and permanently entrench their power over the Internet and our daily lives.

“NetChoice and the platforms it represents do not have our best interests at heart. Content moderation for the public good is not their goal. It is the collection and monetization of our data and the galvanization of their economic power,” said Katherine Van Dyck, Senior Counsel at the American Economic Liberties Project. “Businesses that open their property to the public have never been afforded the sort of special treatment NetChoice is asking, and a ruling in NetChoice’s favor would pose a serious threat to the democratic economy on which our nation is built.”

“In a critical time for AI regulation, child social media regulation, and stronger antitrust laws, the Court should not expand First Amendment protections for social media platforms that would stymie those efforts.” said Zephyr Teachout, Professor of Law at Fordham Law School. “This case is not about endorsing specific policies, but about maintaining the long-standing authority of states to regulate industries to prevent discriminatory practices, ensuring public spaces, digital or otherwise, remain open to all. The general provisions of Texas HB20 are in line with those principles.”

Texas’s non-disrimination law, HB20, was enacted in 2021. NetChoice is challenging the law on First Amendment grounds, claiming that social media platforms like Meta should be afforded the same rights as publishers like the Miami Herald. The brief submitted by Economic Liberties and the academics listed below argues that, because social media platforms are open to the general public, they are fundamentally different from newspapers whose pages are always subject to tight editorial control. HB20 was struck down as unconstitutional in the United States District Court for the Western District of Texas, but that ruling was later reversed in the Fifth Circuit Court of Appeals. The United States Supreme Court granted NetChoice’s petition for review and will decide the question of whether certain provisions of HB20 violate the First Amendment. A similar but more targeted law enacted in the State of Florida is also being reviewed.

The amicus brief was jointly submitted by Economic Liberties and a group of law and history scholars that have extensive expertise in the First Amendment, regulation of addictive technologies, digital product design laws, antitrust, and the history of business and technology. They include:

• Richard John, Professor of History and Communications, Columbia Journalism School
• Matthew Lawrence, Associate Professor of Law, Emory University School of Law
• Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard Law School
• Zephyr Teachout, Professor of Law, Fordham Law School
• Tim Wu, Julius Silver Professor of Law, Science and Technology, Columbia University Law School

They are represented by Glenn Chappell of Tycko & Zavareei LLP in Washington, DC.

Read the full amicus brief here.

Learn more about Economic Liberties here.

###

The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; foreign trade arrangements support domestic security and democracy; and wealth is broadly distributed to support equitable political power.