With the political tide changing following the last election, America has seen a drawdown of the Biden administration’s efforts to upend Americans’ free speech liberties. Yet, the fight to preserve America’s first freedoms on the judicial stage wages on.
MRC is honored to have awarded free speech champion Turning Point USA founder Charlie Kirk with this year’s MRC Free Speech Award. In addition to celebrating Kirk for giving his life for America’s first freedoms, the MRC is also using Free Speech Week to recognize other leaders, including Trump officials, members of Congress and public and foreign advocates. Three pro-free speech legal officers are also among those celebrated by MRC.
In spite of what you may have read or heard from the legacy media or leftist talking heads regarding Big Tech platforms and their supposed right to “moderate content” — censor American speech really — the United States Supreme Court has never fully determined the limits of tech platform liability shield Section 230.
Just last week, the U.S. Supreme Court — led by controversial Chief Justice John Roberts — declined review in a case asking for clarity on the meaning of 47 U.S.C. § 230, or Section 230. This is despite a chorus of voices demanding the Court do its job and interpret the law.
Section 230’s text holds that tech platforms cannot be held liable as “publishers” for the third-party content they host, and that they don’t lose their immunity when engaging in certain types of content moderation (such as removing “obscene” or “lewd” posts). Absurdly, some lower courts have taken this a step too far and have held that this shield gives Big Tech total immunity to engage in viewpoint and even racial discrimination on their platforms. Other courts have, equally confoundingly, insisted Section 230 doesn’t apply to algorithms.
The lower court interpretations fly in the face of longstanding First Amendment doctrines, such as the category of “common carriers.” Common carriers are private companies (such as utilities, telecommunications firms, and railroads) that hold themselves out as “open to the public” and also control access to other markets. A common carrier is forbidden from denying service to or discriminating against its customers.
U.S. Supreme Court Justice Clarence Thomas explained how Section 230’s text seemingly views digital platforms like common carriers: “A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public. Federal law dictates that companies cannot ‘be treated as the publisher or speaker’ of information that they merely distribute.”
But Thomas is not alone. Other major leaders in the free speech movement have also argued similarly for Section 230 clarification and the enforcement of common carrier laws.
Texas Governor Greg Abbott: “Newspapers cannot be censored, but they can be sued for libel. The social media platforms, by contrast, have received special legal status from the federal government in Section 230 of the Communications Decency Act, which protects them from liability for the content they publish by declaring that they are not publishers or speakers. Having won market dominance thanks to Section 230’s immunity handout, these social media giants cannot claim to be speakers again now that it’s convenient.”
Vice President JD Vance: “Google’s claim that ‘Google Search is not a service involving …
carriage’ and is therefore not susceptible to common carrier regulation is perplexing. [] Both the United States and Ohio Supreme Courts have easily classified new message-bearing technologies, such as telegraphs and telephones, as common carriers. Google naturally follows this rule.”
Ohio Attorney General David Yost: “Ohio has an interest in ensuring that Google, its users, and the entities whose information Google carries are aware that Google Search is a common carrier under Ohio law. Ohio also has an interest in ensuring that as a common carrier Google Search does not unfairly discriminate against third party websites; that Google carries all responsive search results on an equal basis; and that it provides the public with ready access to organic search results that the Google Search algorithms produce.”
America First Policy Institute: “The best solution is to require Big Tech platforms to act as common carriers to receive Section 230 protections. Common carriers such as telephone companies must accept all customers without discrimination, and they cannot deny Americans service because they do not like their phone conversations. The courts have long held that common carrier requirements are compatible with the First Amendment.”
Below are two officials who served at the state level and one judge that deserve credit for their role in continuing to fight to preserve the Founders’ vision for American free speech rights as a part of the judicial branch of governance in the U.S.
The MRC is proud to recognize the following legal officers for their actions in defense of Americans’ free speech rights:
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Missouri Attorney General Andrew Bailey (now FBI Co-Deputy Director)
As attorney general, Bailey introduced an ingenious plan to stop censorship, instituting a “choose-your-own content moderation” approach that forces censors to actually admit their intentions. Now, as FBI deputy director, Bailey is part of the team battling to bring desperately needed reform to an agency that has long been used to silence and subjugate. -
Ohio Attorney General Dave Yost
After years of legal battles, Attorney General Yost has seen success in his quest to get courts to acknowledge what we all know — Google is a “common carrier” engaged in unlawful discrimination.
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Judge Andrew Oldham, U.S. Seventh Circuit
Judge Oldham has continued to demand searching inquiry when enforcing Texas’s anti-censorship law, which was unanimously upheld by the U.S. Supreme Court in Moody v. NetChoice. Judge Oldham has rejected the false Big Tech argument that just because internet publishers are protected by the First Amendment for their algorithms, the same holds true for every platform (even ones where the operators eschew all claims of control or liability).
MRC presented 35 pro-free speech advocates with the prestigious MRC Free Speech Award last year, honoring the original vision for Free Speech Week with 2024 awards. 2024 award winners included: five winners from the U.S. Senate, 10 winners from the U.S. House of Representatives, 10 winners from attorneys general to governors, state legislators and FCC and 10 thoughts leaders.
