The recent Supreme Court case, Moody v. NetChoice & CCIA, has brought to light a critical question: Do websites have the First Amendment right to curate content for their global audiences? While the Court’s decision focused on procedural nuances, the broader implications for tech litigation are significant. The discord between Democrats and Republicans on how to regulate the Internet is palpable. Democrats criticise Silicon Valley for failing to protect Americans from harmful content, while Republicans decry what they see as “censorship,” championing the idea of a ‘digital public square’—a concept both legally and technologically ambiguous.
This legislative deadlock has led state legislators to take matters into their own hands. Texas and Florida have passed laws that significantly limit the editorial discretion of social media platforms, prompting legal challenges from trade associations like NetChoice and the Computer & Communications Industry Association (CCIA). The Supreme Court’s recent decision has left many wondering why the defence of Internet freedoms has fallen to trade associations rather than the platforms themselves.
Gone are the days when tech companies united for the greater good of the industry. A decade ago, tech giants protested the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) by darkening their home pages. Today, the sheer volume of bad bills targeting the tech sector has outpaced the resources available to fight them. Each bill requires a dedicated team to analyse its impact, meet with lawmakers, organise grassroots campaigns, and, as a last resort, litigate. Companies are forced to prioritise bills that directly impact their own products and services, often leading to a game of chicken where each company waits for another to take action.
Litigation is a costly and lengthy process that involves significant political and public costs. Companies must navigate a complex interplay with lawmakers and manage public perception, which is increasingly hostile towards the tech industry. Trade associations like NetChoice and CCIA step in to manage these legal challenges, but they face their own set of hurdles. Establishing standing to sue on behalf of their industry is complicated by recent judicial rulings, and filing declarations exposes companies to legal risks and public scrutiny.
The burden of crafting amicus briefs, which provide courts with varied legal and policy perspectives, further complicates the litigation process. These briefs are expensive and time-consuming to produce, often costing between $20,000 to $50,000 or more. Moreover, each legal victory for groups like NetChoice reveals to state lawmakers how to craft more resilient laws, making future challenges even more difficult.
The protracted nature of these legal battles underscores their inefficiency. Years after the initial filing, the merits of the constitutional challenge by NetChoice and CCIA have yet to be addressed. As states continue to enact problematic laws, the prospect of reaching substantive judicial review seems ever more distant, potentially dragging on for decades.
In conclusion, tech litigation is neither a reliable nor sustainable method to address the rising hostility towards the tech industry and the degradation of our rights to access information and express ourselves online. To truly protect online expression, we must vigilantly monitor and respond to problematic legislation from its inception. If left unchecked, even seemingly innocuous bills from states like Texas and Florida will gradually erode the foundations of our digital freedoms.