Thomas A. Berry
Two years ago, Texas passed a law declaring that large social media services are “common carriers” subject to onerous regulations dictating what speech they must disseminate. The law prohibits services from removing, demonetizing, or blocking a user or a piece of content based on the viewpoint expressed. Services found to violate this requirement face liability for each piece of content they remove.
The law was soon challenged by NetChoice and CCIA, two internet trade associations whose members operate a variety of websites covered by the law. Although a federal district court held that the law violated the First Amendment, a panel of the Court of Appeals for the Fifth Circuit reversed that decision by a 2–1 vote. The panel held that the law does not inflict a First Amendment injury because the websites “are free to say whatever they want to distance themselves from the speech they host,” and thus would not be falsely identified as endorsing the speech they are forced to disseminate.
Florida passed a similar law around the same time as Texas’s, which was also challenged by NetChoice and CCIA. In that case, the Court of Appeals for the Eleventh Circuit struck down key portions of the law as violating the First Amendment rights of the websites.
The Supreme Court has granted review of both cases, and now Cato has filed a joint amicus brief supporting NetChoice and CCIA in both cases. There are many reasons why the laws violate the First Amendment, but our brief focuses on just one aspect of the Fifth Circuit’s decision: its reliance on PruneYard Shopping Center v. Robins (1980), a flawed Supreme Court decision that should be overruled.
In PruneYard, the Supreme Court held that California could force a private shopping center to host political pamphleteers on its property. The court held that there was no First Amendment injury to the shopping center because passersby would not likely believe that the shopping center endorsed the speakers it was forced to host. But as our brief explains, there are many reasons why compelling a private entity to disseminate speech inflicts an injury. The false appearance of endorsement is one possible relevant injury, but not the only one. Supreme Court decisions before and after PruneYard have recognized this fact, making PruneYard an outlier in First Amendment doctrine.
For example, in Wooley v. Maynard (1977), the Supreme Court held that New Hampshire could not force drivers to display the state motto “Live Free or Die” on their license plates. It did so despite the fact that drivers were highly unlikely to believe that other drivers endorsed the (required) license plates on their cars. Rather, the court recognized that a driver was injured simply by being forced “to participate in the dissemination of an ideological message by displaying it on his private property.” And before and after PruneYard, the Supreme Court has held in several cases that it is a First Amendment injury to be forced to fund the private speech of others. Here too, the harm is not in any false appearance of endorsement, but simply in the compelled support of speech.
Our brief urges the court to overrule PruneYard and fully endorse the more comprehensive view of compelled speech that underlies both Wooley and many compelled‐funding cases. Americans have a First Amendment right not only to refrain from speaking but also to refrain from printing, funding, disseminating, staging, selling, or otherwise facilitating or supporting the speech of others. We have these rights for many reasons, not just because we (sometimes) want to avoid associating ourselves as supporters and adopters of that speech. We also may want to simply avoid spreading ideas we don’t think are worth spreading.
As our brief explains, the Supreme Court does not need to overrule PruneYard for NetChoice and CCIA to win these cases, but it should overrule PruneYard sooner or later. At the very least, the court should note PruneYard’s outlier status in First Amendment doctrine and decline to extend it to these novel circumstances. The court should reverse the Fifth Circuit and affirm the Eleventh Circuit, striking down the Texas and Florida laws as First Amendment violations.