The Supreme Court on July 1 sent legal challenges to laws in Florida and Texas that regulate how social media platforms moderate content back to lower courts, finding that they failed to carry out proper analyses of the two cases.
This was the first time the nation’s highest court had reviewed state laws that deem social media companies “common carriers,” a status that might allow states to impose utility-style regulations on platforms and forbid them from discriminating against users based on their political viewpoints.
Observers and activists on the left and right had been closely watching the cases.
At stake was the right of individual Americans to freely express themselves online and the right of social media platforms to make editorial decisions about the content they host. These competing rights are both protected by the First Amendment to the U.S. Constitution.
Republicans and conservatives were outraged when platforms acted in concert to ban President Donald Trump in January 2021, blocked a potentially election-altering New York Post article about Hunter Biden’s laptop in 2020, and silenced dissenting opinions about the origins of the COVID-19 virus, the treatments for the disease it causes, and the vaccines. They say that social media platforms have become the new town square and that users’ speech, therefore, enjoys constitutional protection.
Democrats and liberals, on the other hand, claim that the platforms don’t do enough to weed out so-called hate speech and alleged misinformation, which they consider to be pressing social problems.
NetChoice, a coalition of trade associations representing social media companies and e-commerce businesses, sued over a Florida law that makes it a violation for a social media platform to deplatform a political candidate, punishable by a $250,000-per-day fine. The law also establishes restrictions on deplatforming other users and requires consistent application of moderation rules. Deplatforming refers to removing or banning a person or group from a social media platform.
The U.S. Court of Appeals for the 11th Circuit halted part of the law, and Florida appealed to the Supreme Court. The circuit court struck down part of the Florida statute, finding that “with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.”
Even the “biggest” platforms are “private actors whose rights the First Amendment protects ... [and] their so-called content-moderation decisions constitute protected exercises of editorial judgment.”
The U.S. Court of Appeals for the 5th Circuit took the opposite tack, finding a Texas anti-deplatforming law constitutional and rejecting the “idea that corporations have a freewheeling First Amendment right to censor what people say.”
The Court’s Opinion
In the Supreme Court’s opinion, Justice Kagan noted that the internet had just 40 million users in 1997, but today Facebook and YouTube alone have more than 2 billion users each.Those 27 years “have brought a dizzying transformation in how people communicate, and with it a raft of public policy issues” as social media platforms and other websites “have gone from unheard-of to inescapable.”
“They structure how we relate to family and friends, as well as to businesses, civic organizations, and governments,” while creating “unparalleled opportunities and unprecedented dangers.”
The court has traditionally respected the First Amendment right of publishers and editors to “shape other parties’ expression into their own curated speech products,” and this principle does not change merely “because the curated compilation has gone from the physical to the virtual world.”
Government efforts to regulate third-party expression are still subject to judicial review for compliance with the First Amendment, she wrote.
The two state laws being examined limit the ability of social media platforms to manage user content and require a platform to provide an individual explanation to a user if it removes or alters a post, she wrote.
The 11th Circuit found the Florida statute was unlikely to survive First Amendment review and upheld a lower court order blocking its enforcement, while the 5th Circuit reversed an injunction against the Texas statute, finding it did not regulate speech and therefore did not implicate the First Amendment.
“Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge. The courts mainly addressed what the parties had focused on,” Justice Kagan wrote.
In constitutional law, a facial challenge is a challenge to a statute in which the plaintiff argues that the legislation is always unconstitutional. This is different from an as-applied challenge where the plaintiff argues that a particular application of a statute is unconstitutional. A facial challenge is more difficult to win than an as-applied challenge.
The parties’ arguments here focused mainly on the curated feeds of the biggest social media platforms, as if each case presented an as-applied challenge brought by a platform objecting to its loss of control over the content of its news feed, but the arguments “revealed that the laws might apply to, and differently affect, other kinds of websites and apps,” she wrote.
In a facial challenge “that could well matter, even when the challenge is brought under the First Amendment.” In such a case, the question is whether a law’s unconstitutional applications are substantial when compared to its constitutional ones, she wrote.
“To make that judgment, a court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other.
Reactions
Florida Attorney General Ashley Moody said she was pleased that the Supreme Court rejected the “flawed reasoning” of the 11th Circuit that invalidated her state’s social media law.“While there are aspects of the decision we disagree with, we look forward to continuing to defend state law,” Ms. Moody wrote on X.
Texas Attorney General Ken Paxton also weighed in.
“Big Tech censorship is one of the biggest threats to free public discourse and election integrity. Today, SCOTUS has sent this case back to the lower courts.
“I will keep fighting for our law that protects Texans’ voices. No American should be silenced by Big Tech oligarchs,” Mr. Paxton wrote on X.
The Computer and Communications Industry Association (CCIA), which was a litigant in both cases, praised the Supreme Court’s new decision.
“We are encouraged that a majority of the Court has made clear that the government cannot tilt public debate in its favored direction,” CCIA President Matt Schruers said in a written statement.
“There is nothing more Orwellian than government attempting to dictate what speech should be carried, whether it is a newspaper or a social media site.
“Our Founding Fathers understood the importance of the right to speak or not to speak without government interference and made this a cornerstone of our democracy when they ratified the First Amendment,” Mr. Schruers said.
Tyler Martinez, senior attorney at the National Taxpayers Union Foundation’s Taxpayer Defense Center, welcomed the ruling but said he would have preferred it if the justices had provided more specific guidance to the lower courts.
“The majority rightly recognizes that the Florida and Texas laws are more sweeping than the sponsors suggest,” he said in a statement.
“We wish they gave the lower courts more direction as they now consider the exact contours of how it will apply beyond social media,” Mr. Martinez said.
