Gus Hurwitz on the NetChoice Cases

ICLE Director of Law & Economics Programs Gus Hurwitz discussed the U.S. Supreme Court’s NetChoice v. Paxton and Moody v. NetChoice cases in a Q&A feature with Penn Today. You can read the full piece here.

It helps to frame the context of these cases a bit to understand what is at stake in them. Both cases involve similar laws that were adopted in Florida and Texas in response to concerns that internet platforms like Facebook and Twitter (now X) were censoring conservative speakers. Both laws are, roughly, attempts to require platforms to treat speech on them equally. The basic legal challenge that this creates is that these are private platforms, and the First Amendment generally doesn’t allow the government to tell companies like these what speech they need to carry. That would be like the government telling a newspaper what articles it could carry. On the other hand, there are limited exceptions where the government has been allowed to require some businesses, like shopping malls and cable networks, to carry certain types of content.

With that as background, we can start to see what’s at stake in these cases. First, depending on how this case is decided, it could affect much more than just these internet platforms. It could affect the speech rights of newspapers, cable companies, comments sections, and product reviews. Really any place people gather to speak could be affected, even a college campus.

It could also require these platforms to fundamentally alter how they operate. If Twitter, Facebook, Instagram, Discord, Reddit, or any other platform is required to host all speech on topics their owners find problematic, or to not host speech that the government finds problematic, they might simply decide it’s easier not to host certain types of speech at all. The entire internet, with all of its openness and unmoderated access, could be turned back into the 1980s-era world of walled gardens and moderated forums.

At the farthest extreme, some fear that our entire democracy is at stake. For instance, there are some very liberal and progressive groups that have sided with Florida and Texas in this case because they believe that large platforms like Facebook and Twitter have too much influence over the speech that defines our contemporary political environment. They think that the government needs the power to limit speech in order to protect our democracy. Others would argue the opposite: that we need to limit government’s power to control private speech in order to protect our democracy.