WASHINGTON—Earlier this year, the Supreme Court granted review in two cases that will determine whether government officials can violate the First Amendment when they block users on social media: O’Connor-Ratcliff v. Garnier and Lindke v. Freed. The Court will consider whether—and to what extent—government officials’ private social media usage constitutes “state action” subject to constitutional scrutiny.
Today, NetChoice filed an amicus brief in each of these cases, joined by Chamber of Progress, the Computer & Communications Industry Association and the Cato Institute, to explain the additional, related First Amendment issues raised.
“Though private media companies have a First Amendment right to choose how speech is presented on their own services, they are not involved in their users’ individual decisions to report or remove content—whether that user is a government official or a private citizen,” said Nicole Saad Bembridge, NetChoice Litigation Center Associate Director. “If a government official’s use of social media violated their constituents’ First Amendment rights, that government official alone is responsible.”
Saad Bembridge continued: “Regardless of how the Court decides the questions presented in these cases, it should take care to ensure its decisions do not undermine private services’ rights to moderate user content.”
Though we take no position on whether the government defendants’ use of social media in these cases violated the First Amendment, our brief makes three critical points:
- Private companies that own and operate social media services have a First Amendment right to choose what content and which users they host;
- Even if the government officials in these cases exercised state action, and even if digital services make independent moderation decisions that sometimes align with government preferences, the companies involved are not themselves state actors; and
- Public officials may not commandeer private actors to indirectly censor user speech that the First Amendment prohibits them from regulating directly.
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