How NetChoice became Big Tech’s ally against social media regulation

The Supreme Court on Monday will hear arguments on two state laws — one in Texas and one in Florida — that seek to punish social media platforms over allegations that they censor conservative speech. It turns out that the legal force fighting these laws is itself a group with conservative leanings known as NetChoice, which has emerged as Big Tech’s top political lobbyist.

It’s going after social media crackdowns in blue states too, like the California Age-Appropriate Design Code Act, which required that platforms put in stronger default data privacy protections for younger users.

Wherever a social media regulation pops up, NetChoice is there, it seems. We’ve noticed its presence as we continue to cover efforts by state and federal lawmakers to keep kids safe online. Isaiah Poritz of Bloomberg Law, who has been reporting on the organization, fills in Marketplace’s Lily Jamali about the group’s activities.

The following is an edited transcript of their conversation.

Isaiah Poritz: NetChoice is a small tech industry trade association. And their members include some of the largest social media companies in the world: Meta Platforms, X Corp., Google as well. So they are backing much of the biggest Silicon Valley players. And they’ve been around for quite a while now, since 2001. But it’s really in the past couple years that they’ve kind of become Silicon Valley’s attack dog when it comes to challenging state social media regulations in court. They’ve brought a number of these cases and have been quite successful in being able to prevent them from going into law.

Lily Jamali: And we want to get to that in a moment. But I was intrigued by how they have in some ways displaced the Internet Association, which was once sort of the lobbying arm or the face of the tech industry in Washington.

Poritz: Right, yeah. And so they, for a long time, were the face of, like you said, of the tech industry, and they ultimately dissolved over issues around antitrust, which have been increasingly dividing many tech companies like Google, for example, and companies like Yelp, which are very dependent on Google, and changing their business model can dramatically harm Yelp. So they’ve sort of filled in as this loud and aggressive organization that can advocate on behalf of the broader tech ecosystem.

Jamali: So you saw that splintering among some factions within Big Tech. So now, NetChoice is the main litigation powerhouse for the industry, for those bigger companies especially. And they’ve been pretty successful winning injunctions, in other words temporarily blocking laws regulating social media, in five states. What has made them so good at this? How did they get this reputation?

Poritz: They have always had a sort of libertarian or free market-oriented type of legal positioning. And so they’ve been very against any kind of law that’s going to sort of put government regulations on how the open internet is operating. So they’ve brought these free speech challenges where they’ve been arguing that these state laws that would require social media companies to host certain types of content, or that would require social media companies to verify the ages of their users, this is essentially a violation of the First Amendment, that these companies have First Amendment rights as well to determine who can be on their platform and who can say what on their platform. They’ve been able to bring these pre-enforcement challenges, which are difficult to show. You need to tell the court, “Hey, look, this law hasn’t been enforced yet, but we have evidence that it’s going to harm our members. And we’re so confident that you should prevent that law from going into place.” And they’ve worked with some of the best law firms in the country to help craft these complaints and have a clear narrative about how these laws will harm free speech on the internet.

Jamali: So you’ve laid out sort of in broad strokes what some of these laws do. But let’s get specific because today, the Supreme Court is hearing arguments on social media laws in Texas and another one in Florida. Can you give us the thumbnail view on what those laws attempt to do? And what can we expect in court today?

Poritz: Those two laws were passed in 2021, in the wake of the Jan. 6 Capitol riots, that essentially say that you can’t ban or deamplify the posts and the speech of user content based on the political background of that person. In the Florida law, for example, certain politicians who are running for office, they can’t be removed, or they can’t be banned, from these large platforms. But the idea being that tech companies are generally more liberal, or their views are more liberal, and so the belief is that they have been censoring conservative speech.

Jamali: And that’s actually really interesting because you talk about how NetChoice has conservative credentials themselves. And yet, they’re taking on laws aimed at cracking down on social media that are laws generally put forth by Republicans, right?

Poritz: Yeah. And that’s what is so interesting about this group. And when we talked to [NetChoice], they kind of say, “Our conservative credentials have actually helped us when we lobby against these Republican-backed laws because there’s already sort of a sense [of] ‘Look, we’re on your side here. We are also upset with the way that some of these social media companies operate. But this is still a violation of the First Amendment. We still think this is an unconstitutional law.'” And that sort of bolsters their ability to work with those conservative states and, in these cases, bring lawsuits when they aren’t able to lobby them away.

Jamali: You talked to someone at the Electronic Privacy Information Center, which has been working on these issues for a long time as well. They also oppose these laws, but for different reasons. What was their take on NetChoice and their approach to challenging some of these statutes?

Poritz: It’s interesting because there are quite a few civil society groups who understand how these laws came about in Texas and Florida were really sort of driven by this conservative belief that tech companies are censoring them. But the sort of underlying issues of whether or not you can regulate these large social media companies, we need to, like, sort of examine those with a bit more scrutiny and recognize that there should be some ability to sort of restrict the way that these large platforms operate. But it’s difficult to draw the line because there are certainly, I think, a lot of evidence that NetChoice has put forward that allowing these laws to go and be enacted would allow for a lot more hate speech on the internet because it would prevent these social media companies from taking down that kind of content.

Jamali: Yeah, well, we’ve been talking about these laws brought forward by conservative lawmakers. But it sounds like NetChoice is really going after any type of social media regulation, regardless of which side of the aisle it comes from. What are the big-picture implications of that?

Poritz: Yeah, so the constitutionality of these two laws are going to have pretty huge ramifications. The states are arguing that these social media companies are common carriers, so they’re very similar to public utilities, or telephone lines, which are very highly regulated by the government. And so if the Supreme Court does rule that these large social media platforms are like common carriers, that certainly would bolster a lot of other states who are interested in regulating social media to continue to pass these laws. And what NetChoice is arguing is that, by saying that the government can force you to host this kind of content, it’s going to be worse for the internet because there’s going to be so much more hate speech, there’s going to be so much more speech that we don’t want to be hosting, but the government says we have to.

Jamali: And, Isaiah, as you’ve been reporting on NetChoice, what has struck you about the way that they go about their work because they’re not advocating a view that is particularly popular in a lot of corners?

Poritz: So I think what is really interesting about NetChoice is how loud they’re willing to be and how in the public eye they’re willing to be. I think a lot of tech industry groups, a lot of sort of business trade groups, in general, prefer to stay out of controversial — publicly weighing in on controversial topics. That’s certainly not the case for the leaders at NetChoice, who really are willing to get into Twitter battles with people. And their general counsel, Carl Szabo, has positioned himself as an antagonist of the Biden administration when it comes to his tech policies around artificial intelligence and other issues. He will go after him in Fox News op-eds, which is quite unique, considering that most tech companies, they would prefer to sort of become an ally with whoever the current administration is. So they’re really willing to kind of be loud about these issues and in a way that gives cover to some of the tech companies who also don’t want to weigh in directly on controversial issues around child safety on social media and other issues there. But this group can kind of advocate on their behalf.

Jamali: And do you get the sense that NetChoice is having an influence on the public dialogue? Will we kind of skew in the direction of “Big Tech needs to do more,” or do you think NetChoice is getting their argument out into the public domain?

Poritz: It’s hard to say exactly. But certainly, I think there’s been a lot more scrutiny from lawmakers, from plaintiffs’ attorneys around the country when it comes to trying to rein in these social media companies. Whether or not that fully passes constitutional muster when it comes to these laws, that’s a different question. And so far, the courts have said, “No, they don’t.” And we’ll see what the Supreme Court says.

Jamali: Is there an argument, Isaiah, to be made that NetChoice partnering with some big law firms to attack some of these laws might actually be a positive development, in some respects, for consumers who are concerned that these laws are too onerous from a privacy point of view?

Poritz: When we talked to NetChoice, their general counsel really did want to emphasize that litigation for them is sort of the last resort, that they try to go to lawmakers before these bills are passed. But one thing that Carl Szabo, the general counsel, emphasized to me was that unlike the federal Congress, state legislatures can pass laws incredibly quickly. They’re often only in session for a couple of months, so within a week a bill can become law. And that makes it very difficult to swat them down at that very early stage. And that’s where the lawsuits come in. But, I mean, the use of these big law firms certainly helps bolster their arguments here.