In a pivotal decision on Monday, the U.S. Supreme Court vacated previous lower court judgments concerning state laws regulating social media platforms, sending these cases back for further analysis. This unanimous decision ultimately addresses controversial laws from Texas and Florida aimed at restricting the ability of platforms like Facebook and YouTube to moderate content, raising significant First Amendment concerns.
Background
The cases, originating from laws passed in 2021 in both Texas [ House Bill 20, 87(2) ] and Florida, represent significant challenges to how social media platforms can control the posts and interactions on their sites. These laws were ostensibly created to prevent what some lawmakers perceive as biased censorship by major platforms, especially against conservative viewpoints. Both statutes restrict platforms’ ability to remove, label, or prioritize content, which could fundamentally alter the ways these companies operate.
For reference: Moody v. NetChoice (22-277) and NetChoice v. Paxton (22-555)
The Supreme Court’s Stance
Justice Elena Kagan delivered the Court opinion. The Court did not make a final determination on whether the laws violate the Constitution. Instead, the decision emphasizes the complexity of applying traditional First Amendment principles to the modern digital arena. The Court noted that the existing analyses by the Fifth and Eleventh Circuits were insufficient, lacking in a comprehensive assessment of how these laws affect different aspects of social media operations.
“To the extent that social media platforms create expressive products, they receive the First Amendment’s protection. And although these cases are here in a preliminary posture, the current record suggests that some platforms, in at least some functions, are indeed engaged in expression. In constructing certain feeds, those platforms make choices about what third-party speech to display and how to display it. They include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression. And while much about social media is new, the essence of that project is something this Court has seen before. Traditional publishers and editors also select and shape other parties’ expression into their own curated speech products. And we have repeatedly held that laws curtailing their editorial choices must meet the First Amendment’s requirements. The principle does not change because the curated compilation has gone from the physical to the virtual world. In the latter, as in the former, government efforts to alter an edited compilation of third-party expression are subject to judicial review for compliance with the First Amendment… But this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others.”
U.S. Supreme Court Justice Kagan delivering unanimous opinion of the court, 7.1.2024
Key Points from the Decision
Facial Challenge: The Supreme Court highlighted that the challenge to the laws was facial, meaning that the plaintiffs argued the laws were unconstitutional in all their applications. This is a high standard to meet, and the Court suggests that lower courts need to thoroughly evaluate the range of applications of these laws.
Editorial Discretion: Central to this case is whether social media platforms’ moderation activities constitute protected editorial discretion under the First Amendment. The platforms argue that these laws infringe on their rights by limiting their ability to control the spread of misinformation, hate speech, and other harmful content.
Diverse Implications: The laws could impact not just traditional posts but also direct messaging, video uploads, and other functionalities that are not public-facing. This wide applicability necessitates a detailed judicial review to understand the broader implications for free speech and editorial rights on digital platforms.
Broader Implications
This decision is pivotal for the ongoing debate over the role of big tech in public discourse. By not definitively ruling on the First Amendment implications and sending the cases back to lower courts, the Supreme Court has acknowledged the complex interplay between free speech rights and the responsibilities of social media platforms to moderate content. This move also signals a cautious approach to regulating digital platforms, reflecting the Court’s awareness of the evolving nature of online speech and its societal impacts.
As these cases return to lower courts, they will undoubtedly be closely watched by legal experts, tech companies, and advocates for free speech across the political spectrum. The outcomes could set significant precedents for how much control states can exert over social media operations, potentially reshaping the landscape of online communication.
The author of Texas’ social media censorship legislation, State Rep. Briscoe Cain (R-Deer Park) gave this statement,
“I am disappointed in the United States Supreme Court for their decision to send our case back to the lower courts. Their decision does not cause me to waiver from what I have always believed: Texas was right in passing this law.
However, our work is not yet complete, and I am dedicated to continuing the fight.Texas must be prepared to lead on this and other issues…”
State Rep. Briscoe Cain (R-Deer Park), Statement posted to Twitter/X
Texas Attorney General Ken Paxton (R), took to Twitter/X to say this,
“This year, I went before SCOTUS to defend our landmark Texas law that forbids social media companies from discriminating on the basis of viewpoint. 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.”
Texas Attorney General Ken Paxton (R), Statement posted to Twitter/X
It is unclear whether Texas lawmakers will attempt to readdress this issue in the upcoming 89th Legislative Session (2025) or wait to see what determinations lower courts make. For now the Supreme Court’s opinion blocks both the Texas and Florida laws from being enacted, awaiting further proceedings at the 11th and 5th Circuit Courts respectively.
Perhaps Hannah Cox, formerly with the Foundation for Economic Education (FEE) said it best when this legislation was first being considered,
“We see this concept in play in the US at this very moment. It’s easy for people to become consumed with fighting what they hate versus upholding the principles we were founded upon. And when one is merely focused on fighting what they dislike, they quickly assume an “anything goes” mentality. Instead, we need to hold ourselves and our leaders to founding principles like free markets, individual rights, and limited government.”
“It appears some state lawmakers on the right have grown to hate the left more than they love the Constitution, and in the process they’re becoming what they disliked in the first place.”
Hannah Cox, Foundation for Economic Education, 9.26.2021
Conclusion
The Supreme Court’s decision to send the social media moderation cases back to the lower courts underscores the complex interplay between state regulation and First Amendment rights in the digital age. This move reflects the Court’s caution in dealing with the nuanced issues of content moderation on platforms that have become central to public discourse. As these cases continue to unfold, they will not only shape the legal landscape of digital expression but also set crucial precedents for how social media companies manage content that affects millions of users worldwide. The outcomes of these cases could fundamentally influence the balance between perceived bias and safeguarding free speech on the internet.
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