The following is a slightly edited transcript of remarks made by Carl Szabo during a Newsweek episode of the Debate on freedom of expression on the Internet. You can listen to the podcast here:
I am a conservative. I teach at the Antonin Scalia Faculty of Law; I am an original. And as a curator, I often get frustrated with the content moderation decisions tech platforms make — when they remove content that I think they should keep. But then, I recognize that it is their constitutional right to decide what is best for their users and their platforms. And it’s not just me saying this in the ether: it’s based on conservative court rulings, like Hobby Lobby, Masterpiece Cakes and Citizens United, all of which are based on the simple notion that a private company can decide what is best for its users and their advertisers.
So Cleanchoice [current litigation] is centered on one simple thing: the First Amendment. The government can’t force me or you or Newsweek to say or harbor anything we don’t mean. And this is steeped in 100 years of First Amendment jurisprudence. That’s why we won at virtually every level of the justice system, even though the Supreme Court suggested we were right.
It’s about the First Amendment and whether a private company is required to host horrible content that it just doesn’t want to host — stuff we like to call “horrible but legal” content. Suppose the government comes out and says “this information is dangerous, this information is threatening, you won’t repeat it…” You can quickly see the danger of the government coming out and declaring what is or is not a information, what is or is not misinformation, what is or is not allowed to be said. And whether it’s the Biden administration, or in [our litigation], the states of Florida and Texas, it’s the same thing. And that’s what worries our founders. And that’s why they wrote the first amendment to protect us from that kind of coercion.
Carl Szabo is Vice President and General Counsel at NetChoice.
The opinions expressed in this article are those of the author.