NetChoice’s argument is persuasive. As a preliminary matter, there is no dispute the Act
implicates social media companies’ First Amendment rights.
87 The speech at issue in this case—
the speech social media companies engage in when they make decisions about how to construct
and operate their platforms—is protected speech.
88 The Supreme Court has long held that “[a]n
entity ‘exercis[ing] editorial discretion in the selection and presentation’ of content is ‘engage[d]
in speech activity’” protected by the First Amendment.89
And this July, in Moody v. NetChoice,
LLC, the Court affirmed these First Amendment principles “do not go on leave when social
media are involved.”
90 Indeed, the Court reasoned that in “making millions of . . . decisions each
day” about “what third-party speech to display and how to display it,” social media companies
“produce their own distinctive compilations of expression.”91
Regarding the more pressing question—whether the Act facially violates social media
companies’ First Amendment rights—the probable answer is “yes.” As explained below,
I'm not sure why Larry Flint had so many legal fights with a state that believes any kind of business has a first amendment right for interactions with children.
imo, algorithms/ranking/recommendation systems aren't "editorial decisions". They are automated and abstractions that should not equal or compare to an individuals free speech. Ya, I know, they're designed by humans. Social media companies need some serious lawfare.
What they really needs is competition through the reduced cost of switching for users. Today, you lose your friends, follows, and history if you wanted to move to another social media app.
With Bluesky / ATProto, this is no longer the case. They have also made the algo and moderation pluggable, so you have choice before you feel the need to move. It's actually even better because all the apps store your content in your atproto database, each user has a dedicated sqlite
NetChoice’s argument is persuasive. As a preliminary matter, there is no dispute the Act implicates social media companies’ First Amendment rights. 87 The speech at issue in this case— the speech social media companies engage in when they make decisions about how to construct and operate their platforms—is protected speech. 88 The Supreme Court has long held that “[a]n entity ‘exercis[ing] editorial discretion in the selection and presentation’ of content is ‘engage[d] in speech activity’” protected by the First Amendment.89 And this July, in Moody v. NetChoice, LLC, the Court affirmed these First Amendment principles “do not go on leave when social media are involved.” 90 Indeed, the Court reasoned that in “making millions of . . . decisions each day” about “what third-party speech to display and how to display it,” social media companies “produce their own distinctive compilations of expression.”91 Regarding the more pressing question—whether the Act facially violates social media companies’ First Amendment rights—the probable answer is “yes.” As explained below,