The US Supreme Court is due to decide on Texas and Florida laws restricting platforms’ ability to moderate user created contents by the end of June. Open Net, jointly with Article 19 and UC Irvine Law School’s International Justice Clinic, filed an amicus brief at the US Supreme Court on a constitutional challenge to the Texas law and the Florida law, which respectively authorizes state attorney generals to sue to prohibit social medial platforms from moderating contents based on “viewpoint” or taking down political candidates or journalistic sources. These laws have been passed by the Republican-led legislatures of the two states in response to Facebook and Twitter’s deplatforming of the former President Trump when he instigated violent rebellion against the results of the November 2020 U.S. Presidential Election culminating in the January 6 Capitol Hill attack.
The joint amicus brief (below) is based largely on international human rights law, more specifically Article 19 of the UN human rights treaty, International Covenant of Civil and Political Rights, which has been interpreted to impose the requirements of legality, legitimacy, necessity, and proportionality. The amici argue from early on that both laws do not have legitimate purposes as they aim to authorize the incumbents to impose their views of neutrality over the social media platforms’ otherwise protected freedom of speech or more accurately freedom to associate or disassociate with certain user created contents.
Open Net has for years has fought against administrative censorship by South Korea’s Korean Communication Standards Commission as it has been used by the incumbents to suppress minority’s speech such as women in need of medical abortion or objective information on North Korea. Open Net believes that, whether the government intervenes directly on contents or the platform’s moderation on them, it risks politicized suppression of speech that is not harmful and otherwise lawful. Open Net therefore has opposed the bills in South Korea restricting platforms’ ability to curate contents under the pretext of neutrality on search results and contents recommendation several times. Open Net contributed to the amicus brief its experience and research with the inevitably politicized censorship to demonstrate the harms of the censorship effects of the the Texas and Florida law. Although the main body of the laws are enforced through judicial injunction, the U.S. Supreme Court has already spoke on how vaguely worded censorship standards can create prior restraint even if they are enforced by courts in Near v. Minnesota. Especially, Florida law allows the Election Commission to directly fine social media companies, risking even more politicized intervention.
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Netchoice-Amicus-Brief-FINAL
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