WASHINGTON (CN) — The Supreme Court on Monday avoided deciding if Texas and Florida can add new content moderation limits on social media, ruling to keep both laws on pause and ordering a new review in the lower courts.
In a unanimous decision, the high court found that the two appellate courts improperly reviewed the “facial” First Amendment challenges the social media companies had made against the laws in their totality, including potential impacts on additional sites and services like Facebook Direct Messages, Venmo and Uber, among others.
The two conservative states enacted the laws to limit social media companies’ content-moderations policies, which aim to restrict certain views deemed as hateful, dangerous or misinformation. The laws also required the companies to provide an individualized explanation to a user for the removal or alteration of their posts.
Conservatives, including former president Donald Trump, have argued social media companies like Meta and Twitter, before Elon Musk’s takeover, discriminated against right-wing voices, especially in regard to false claims related to the 2020 election and the Covid-19 pandemic.
Justice Elena Kagan wrote the court’s opinion, in which she faulted both the 11th Circuit Court of Appeals and the Fifth Circuit for only considering the challenges on how the laws would affect sites like Facebook and YouTube.
The Barack Obama appointee clarified that in a facial challenge, the courts must determine whether a law’s unconstitutional applications are “substantial” compared to its constitutional ones, and take full account of those possible applications.
She highlighted the Fifth Circuit’s review for particular scorn, describing the appellate court’s decision as a serious misunderstanding of the First Amendment by ruling the policies were not speech and thus did not implicate the First Amendment.
Kagan opened her opinion describing how far the Internet had come in the past 30 years, from requiring a definition by the court in opinions to impacting every aspect of daily life that any citizen understands better than the nine justices.
Despite that “dizzying transformation,” Kagan said, courts are necessary to protect the speech of social media companies consistent with longstanding precedent protecting traditional media’s rights.
“In constructing certain feeds, those platforms make choices about what third-party speech to display and how to display it,” Kagan wrote. “They include and exclude, organize and prioritize — and in making millions of those decisions each day, product 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.”
Those millions of decisions are functionally editorial decisions, Kagan said, and just as the First Amendment requires strict scrutiny for laws curtailing such decisions by newspapers, it should also require scrutiny for laws targeting social media’s content moderation policies.
Aiming to combat perceived viewpoint censorship, Texas and Florida enacted laws forcing social media companies to host almost all speech, even speech that violates the website’s terms of use.
Social media companies like Facebook and YouTube use editorial discretion to maintain certain standards for users. This includes removing hate speech or posts that incite violence. Under the states’ laws, however, websites would have no choice but to put out third-party speech even if they do not want to disseminate such viewpoints.
Both states’ laws limit social media companies’ content moderation. The Lone Star State prohibited social media companies from censoring content based on expression and required that they disclose their moderation standards. Social media companies would also be responsible for providing users with an explanation every time the platform removed one of their posts.
The Sunshine State’s law is similar to Texas’, strictly limiting what posts platforms could remove. Florida banned all content moderation for the accounts of journalists or political candidates.
Trade groups representing the social media giants sued the states, claiming they were attempting to substitute the states’ judgment over private entities. NetChoice and the Computer & Communications Industry Association argued that the new laws violated the First Amendment by compelling speech.
Neither law has been implemented. The Fifth Circuit attempted to put Texas’ law back on the books, but the Supreme Court kept it on pause while considering the case.
The justices heard arguments in February.
First Amendment activists such as Robert Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression, welcomed the court’s decision, hailing it as a win in an emailed statement.
“Today’s ruling makes clear there’s no social media exception to the First Amendment," Corn-Revere said in the statement. “The government has no business dictating to platforms what opinions they must host. The court rightly rejects the idea that lawmakers have more authority over speech online than they do offline.”
The high court vacated and remanded the cases back to federal court for further proceedings to take full account of the potential impacts of the two laws.
“In sum, there is much work to do below on both these cases, given the facial nature of NetChoice’s challenges,” Kagan wrote. “But that work must be done consistently with the First Amendment, which does not go on leave when social media are involved.”
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