Brady Warns of Social Media’s Role in Mass Violence

NetChoice v. Paxton, No. 22-555, Supreme Court of the United States

Date Filed: December 6, 2023

Topic: Social media regulation and the First Amendment 

Case Summary: In the wake of the recent rise in social media posts promoting violence and misinformation online, social media platforms, such as Facebook and Twitter, began to moderate user-generated posts by tagging them as misinformation or removing them altogether. In response, Florida and Texas enacted laws in 2021 that sought to limit this content moderation. 

The Texas law, for example, prohibited the online platforms from “censoring” (removing or otherwise hiding) users’ posts based on the user’s viewpoint. After these bills were passed, NetChoice and the Computer & Communications Industry Association (CCIA), which are trade organizations for social media companies, challenged both of these laws as unconstitutional, arguing that content moderation by internet firms is protected speech under the First Amendment to the U.S. Constitution. 

The U.S. District Courts in both the Northern District of Florida and the Western District of Texas agreed with NetChoice and CCIA, issuing preliminary injunctions, or orders that prevented the enforcement of most of the state laws’ provisions. Florida and Texas appealed these respective decisions. While the Eleventh Circuit Court of Appeals upheld most of the injunction related to Florida’s law, the Fifth Circuit Court of Appeals allowed Texas’s law to take effect once again, eventually ruling that the Texas law did not violate the First Amendment because the platforms’ content moderation was not speech. This created a circuit split, and the Supreme Court agreed to hear both cases to determine whether the Florida and Texas statutes violate the First Amendment’s guarantee of free speech. 

Brady’s Amicus Brief: Brady’s brief does not take a position as to the constitutionality of laws that regulate content moderation of large internet platforms, and was filed in support of neither party. Instead, Brady urges the Court to consider social media’s role in fostering hate speech and fueling mass violence. The brief examines the role of social media in three recent hate-motivated mass shootings in the United States — in Santa Barbara, CA, Charleston, SC, and Buffalo, NY. 

Social media was used in some way by all three of these shooters, whether the shooters themselves made direct online threats to targeted groups before the attack, participated in extremist online groups that have thrived online for years, or even live-streamed their attacks (after which social media sites promoted the video of the attack alongside paid advertisements). Brady’s brief emphasizes that in these cases, and many others, the shooter’s online trail has been widely shared and glorified across social media, further perpetuating the cycle of hate and mass murder. These horrific examples show that the ability of social media websites to moderate their content is paramount in promoting public safety. Brady also advocates for social media companies to moderate their content. While companies have resisted such advocacy on the theory that moderation efforts would infringe the free speech rights of their users, Brady points out that by allowing online hate speech, these companies are often chilling the free speech and other protected First Amendment rights of other social media users. 

In June 2024, in a 9-0 decision, the Supreme Court sent the cases back to the lower courts because it found that they had not conducted the proper analysis.