Supreme Court Remands NetChoice Lawsuits Against Texas and Florida

The First Amendment protects social media platforms’ ability to moderate content, the U.S. Supreme Court said Monday, sending the tech industry’s lawsuits against Florida and Texas laws back to the lower courts (see 2402270072). All nine justices agreed on remanding, but Justices Samuel Alito, Clarence Thomas and Neil Gorsuch disagreed with First Amendment-related aspects of the majority opinion, which Justice Elena Kagan wrote (dockets 22-555 and 22-277).

Kagan’s opinion didn’t explicitly find the states’ social media laws violate the First Amendment. Instead, it found the 11th U.S. Circuit Court of Appeals, located in Atlanta, and the Fifth Circuit, in New Orleans, failed to conduct a “proper analysis” of the tech industry’s facial First Amendment challenges, therefore remanding the lower court split.

Both laws “restrict the ability of social-media platforms to control whether and how third-party posts are presented to other users,” Kagan wrote. Platforms create “expressive products” through content moderation and therefore are entitled to First Amendment protection, she wrote. The Texas law is “unlikely to withstand First Amendment scrutiny” because it prevents platforms from compiling third-party speech, she said. States aren’t allowed to advance their viewpoints by “burdening the expression of others,” she concluded. “To give government that power is to enable it to control the expression of ideas, promoting those it favors and suppressing those it does not. And that is what the First Amendment protects all of us from.” Justices John Roberts, Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett joined the full opinion, with Alito, Thomas and Gorsuch concurring in part.

The three agreed with Kagan’s “bottom line” holding that NetChoice and the Computer & Communications Industry Association failed to prove the state laws are “facially unconstitutional.” However, they said everything Kagan offered beyond that issue is “nonbinding dicta.” The majority’s “broader ambition” of issuing guidance on whether part of the Texas law is unconstitutional is “unnecessary and unjustified,” Alito wrote: Kagan’s summary of court legal precedent is “incomplete,” and there’s “no good reason to decide anything other than the facial unconstitutionality question actually before us.”

Justices Ketanji Brown Jackson and Barrett issued separate concurrences, agreeing in part with Kagan’s opinion. Barrett diverged from fellow conservatives, saying the majority’s opinion “correctly articulates and applies our First Amendment precedent.” She argued the 11th Circuit’s understanding of First Amendment protections for editorial discretion was “generally correct,” while the Fifth Circuit’s “was not.” A facial challenge, which alleges a statute is unconstitutional in all applications, likely forces a court to “bite off more than it can chew,” Barrett wrote. She suggested an as-applied challenge, limiting the allegation to specific online activities and allowing the courts to weigh the constitutionality of platform-specific functions. Jackson agreed with Barrett that the 11th Circuit “fairly stated” the court’s First Amendment precedent, and the Fifth Circuit didn’t. The lower courts should address the cases at the “right level of specificity,” Jackson said. The high court should “strive to avoid deciding more than is necessary” when faced with “difficult constitutional issues arising in new contexts on undeveloped records,” she said. “In my view, such restraint is warranted today.”

NetChoice called the decision a “victory for First Amendment rights online.” Litigation Center Director Chris Marchese said that the high court “agreed with all our First Amendment arguments.” He noted the district court injunctions against both state laws will remain in effect pending additional lower court litigation. “We are gratified to see the Supreme Court acknowledge the Constitution’s unparalleled protections for free speech, including the world’s most important communications tool, the internet.”

CCIA applauded the high court for “making clear that a state may not interfere with private actors’ speech.” President Matt Schruers said: “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.”

The Supreme Court’s decision protects online free speech, Public Knowledge said Monday. Legal Director John Bergmayer said there were concerns an overly broad decision from the court could have let states meddle in social media feeds or infringe on nondiscrimination, public accommodation or common carrier laws in general. “Thankfully, both fears were unfounded,” he said. “Nothing in the court’s First Amendment analysis prevents reasonable public interest regulation of internet platforms or imperils policies like net neutrality.” Policies like net neutrality don’t “seek to substitute the views of government for First Amendment-protected, private editorial and content moderation policies.”

Columbia University’s Knight First Amendment Institute applauded the court for issuing a “careful and considered ruling that decisively rejects the broadest arguments made by the states and the social media platforms.” The school filed an amicus brief in December arguing that while the First Amendment protects editorial discretion, it leaves room for careful, deliberate regulation. The tech industry “asked for a sweeping ruling that would have placed their business models beyond the reach of regulation,” Executive Director Jameel Jaffer said. “The states asked for a ruling that would have given them immense power to manipulate and control public discourse online. The court was entirely right to reject these requests, both of which would have done real harm to our democracy.”

Monday’s decision is a “win for free speech and a healthy internet ecosystem,” TechNet CEO Linda Moore said. Eliminating platforms’ First Amendment rights “would have fundamentally changed how we communicate and interact online, created a less safe user experience, endangered lawful online expression, and weakened U.S. innovation.”