The law was challenged by two internet trade associations, NetChoice and CCIA, and a federal district court initially ruled that the law violated the First Amendment. However, a panel of the Court of Appeals for the Fifth Circuit later reversed that decision. Meanwhile, Florida also passed a similar law, which was also challenged and struck down as violating the First Amendment. Both cases are now before the Supreme Court, and Cato has filed a joint amicus brief supporting NetChoice and CCIA. The brief focuses on the reliance on PruneYard Shopping Center v. Robins (1980), a flawed Supreme Court decision. The brief argues that compelling a private entity to disseminate speech inflicts an injury beyond just the false appearance of endorsement.
The Supreme Court is urged to overrule PruneYard and endorse the more comprehensive view of compelled speech that underlies other relevant cases. The brief argues that Americans have a First Amendment right not only to refrain from speaking but also to refrain from supporting the speech of others. Furthermore, Pruneyard is also a terrible Takings Clause precedent, another reason to overrule it. The Texas and Florida laws are seen as First Amendment and Takings Clause violations.
The author expresses support for the Fifth Circuit’s decision to bar the White House and other federal officials from coercing social media firms to take down content they deem “misinformation”. They also oppose the court’s decision upholding the Texas social media law. The author believes that the owners of a site should have the right to determine which speech they want to host, and which they don’t, even if it’s for a stupid reason.