The Messy Reality Behind Trying To Protect The Internet From Terrible Laws

Policy

from the an-impossible-task dept

The recent Supreme Court case, Moody v. NetChoice & CCIA, confronted a pivotal question: Do websites have the First Amendment right to curate content they present to their global audiences? While the opinion has been dissected by many, this post peeks behind the Silicon curtain to address the practical aftermath of tech litigation. 

Well before this case, there has been significant discord among the federal government about how to regulate the Internet. Democrats criticize the Silicon Valley elite for failing to shield Americans from harmful content, while Republicans decry “censorship” and revere the notion of a ‘digital public square,’ a concept lacking in both legal precision and technological reality. Despite a shared disdain for Section 230—a statute that protects websites and their users from liability for third-party content—the two sides can’t agree on a “solution,” forcing a legislative deadlock.

This impasse empowered state legislators to act independently. Initially dismissed as ‘messaging bills’ designed merely to garner political favor, legislation in Texas and Florida soon crystallized into laws that significantly curtailed the editorial discretion of social media platforms. This prompted legal challenges from two trade associations, NetChoice and the Computer & Communications Industry Association, questioning the constitutional merits (or lack thereof) of these laws.

The prolonged conflict led to a, perhaps anticlimactic, Supreme Court decision last month, focused more on the procedural nuances of facial challenges. This outcome has led observers to question why the responsibility of defending Internet freedoms fell to trade associations instead of the platforms themselves. Having been involved with these cases from the outset and drawing on my experience in the tech industry, I may have some answers. 

Gone are the days when tech companies stood united for the good of the industry and the underlying internet. Recall over a decade ago when some of the biggest tech companies in the world darkened their home pages in protest of the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). These bills posed a serious threat not just to individual companies, but to the entire tech industry and everyday internet users. Other notable examples of collective industry protest include the battles over net neutrality, SESTA-FOSTA, and the EARN IT Act. But despite a recent influx in legislative threats, tech companies are noticeably absent.

There are several reasons for the silence. First, the sheer volume of bad bills threatening the tech sector has outpaced the resources available to fight them. California alone has introduced a flurry of legislation targeting social media companies and AI in recent years. When you add in efforts from other states, fighting these laws becomes an internal numbers game. Each bill requires a dedicated team to analyze its impact, meet with lawmakers, organize grassroots campaigns, and, as a last resort, litigate. As a result, companies must make tough decisions about where to invest their resources, often prioritizing bills that directly impact their own products, services, and users.

When bad bills reach the governor’s desk, two strategies typically unfold. The first is the veto strategy, where companies and their lobbyists work tirelessly to secure the coveted governor’s veto. The second is litigation, once the governor inevitably signs the bill into law. Litigation is a significant decision, involving a long, costly process that directly affects company shareholders and therefore typically requires executive approval. And that’s just for one bad bill. Imagine making these decisions for multiple bills across several states all year long. Companies are understandably reluctant to rush into litigation, especially when other companies could take up the fight. Why should Meta challenge a law that also impacts Google, Amazon, or Apple?

This leads to a game of chicken, where companies wait, hoping another will take action. Of course, not all legislation impacts companies equally. A law targeting Facebook, for example, may not affect others enough to justify the expense of a legal challenge. If the most impacted company decides compliance is a cheaper and safer alternative, the law may just go unchallenged. This leaves smaller companies, for whom litigation was never a realistic option, to fend for themselves—and for some of the major players, that might just be an added bonus. 

Litigation also incurs significant political and public costs. Companies and lawmakers navigate a complex interplay during the legislative season, where companies vie for a seat at closed-door meetings to influence bill drafting, while politicians attempt to manage the influence of these corporate lobbyists to achieve legislative gains for their constituents. Consequently, challenging a law—particularly one backed by politicians with deep corporate ties—could be perceived as a declaration of war, potentially alienating companies from future legislative discussions.

Beyond political capital, public perception is equally critical and increasingly fragile. Contemporary portrayals in the media often depict tech advocacy as self-serving or even harmful. This is particularly evident in the discourse surrounding new youth online safety laws, where tech companies face backlash for opposing measures like parental consent and age verification—mandates that many experts claim actually harm children. 

This growing disdain towards the tech industry (“techlash”) also shapes how companies assess the risks of contesting contentious laws. Which brings us to trade associations, like NetChoice and CCIA. 

Trade associations manage the interests of their industry members by engaging with lawmakers on key bills, testifying at hearings, submitting comments, and initiating legal challenges. These associations can vary in structure. For example, Chamber of Progress, where I previously worked, does not allow Partner companies to vote or veto, making it a relatively independent and agile organization compared to others. NetChoice operates under a similar model, facilitating quicker legal actions without the bureaucratic hurdles often encountered by other associations. The contrasting vote/veto structure was notably a factor in the dissolution of the Internet Association (IA).

However, trade associations are not a panacea for the complexities of litigation. For starters, cost is similarly a barrier. But to initiate legal challenges, the trade associations must establish standing to sue on behalf of their industry, a task complicated by recent judicial rulings like Murthy v. Missouri. Courts are reticent to grant standing to trade associations without explicit declarations from member companies about the specific harms they would face under the law in question. But these declarations are public, compelling companies to openly oppose the law, and thus exposing them to the same political and public scrutiny they might seek to avoid by leaving it to their associations.

Moreover, filing a declaration exposes companies to legal risks. It enables state defendants to request discovery into the declaring company, potentially leading to invasive examinations of the company’s operations—a deterrent for many. Given the proliferation of problematic laws across the U.S., a company that files a declaration once may be hesitant to do so repeatedly, especially if other companies remain reluctant to expose themselves similarly. And while it may seem like NetChoice is everywhere when it comes to the laws they have successfully challenged, there still remain several unconstitutional tech laws on the books today that have yet to be challenged, like the New York SAFE For Kids Act, possibly due to many of these lingering concerns. 

Even for non-declarant companies, the strategy of using trade associations like NetChoice to shield companies from public scrutiny is becoming less effective. Media coverage often portrays challenges brought by associations like NetChoice as if they are directly initiated by the member tech companies themselves. This occurs regardless of whether all of NetChoice’s members actually support the legal actions or not. The perception often leads to public backlash against the companies which can then manifest as company dissatisfaction with their own trades—a risk that all successful trade associations must constantly weigh. 

Another downside to litigation is the tremendous burden placed on third parties responsible for crafting amicus briefs. These briefs, written by entities wholly independent from the litigants, are not merely echoes of a plaintiff’s arguments; they provide courts with varied legal and policy perspectives that could be influenced by the law under challenge. Yet, crafting these briefs is an expensive and time-consuming endeavor. A single brief can cost between $20,000 to $50,000 or more, depending on the law firm and the depth required. The effort to rally additional signatories for a brief further multiplies these costs. For organizations like my previous employer, the investment in amicus briefs across multiple legal challenges and at various judicial levels, such as in the cases of NetChoice & CCIA v. Moody/Paxton, represents a significant strain. And though not obligatory (like company declarations), these briefs often play a crucial role in the success or failure of a legal challenge.

Furthermore, litigation may prove to be a flawed strategy simply because it arms lawmakers with insights on how to refine their legislation against future challenges. Each legal victory for groups like NetChoice reveals to state lawmakers how to craft more resilient laws. For example, the recent Moody v. NetChoice & CCIA decision detailed all the ways in which NetChoice’s facial challenge was deficient. Of all the reasons, the biggest was that NetChoice failed to articulate for every requirement in the Texas and Florida legislation, how that requirement impacted each of the products and services offered by each of NetChoice’s tech company members. In many ways, this could be a near impossible task, especially considering the drafting limits for a party’s brief and time spent at oral arguments. In turn, what this tells lawmakers is that their bills may just survive if they write laws with immense and convoluted requirements that make a facial challenge nearly impossible to thoroughly plead. 

The protracted nature of these legal battles further underscores their inefficiency. Years after the initial filing, with one Supreme Court hearing behind us, the merits of the constitutional challenge by NetChoice and CCIA have yet to be addressed. Moving forward, just refining their challenge for appellate consideration might necessitate another Supreme Court review. With states continually enacting problematic laws, the prospect of reaching substantive judicial review seems ever more distant, potentially dragging on for decades.

All this means is that 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—which, yes, means also preserving the technology companies that empower it—we must vigilantly monitor and respond to problematic legislation from its inception. If left unchecked, even seemingly innocuous messaging bills from states like Texas and Florida will gradually erode the foundations of our digital freedoms.

Jess Miers is currently Visiting Assistant Professor of Law, University of Akron School of Law. She formerly has worked for Chamber of Progress, Google, TechFreedom, and Twitter.

Filed Under: 1st amendment, content moderation, internet regulation, litigation, section 230
Companies: ccia, chamber of progress, netchoice