Supreme Court Bounces Back Question On Social Media Moderation
CORRECTION: Due to an editing error, the original published version of this story erroneously stated that the Supreme Court had “struck down” the Florida and Texas laws when, in fact, the court sent both cases back to lower courts. It also prematurely declared the ruling a “win for tech platforms.”
The Supreme Court sent back to the lower courts two laws passed by Republican statehouses meant to curb perceived censorship by social media platforms on Monday.
The court ruled in the twin cases of Moody v. NetChoice and NetChoice v. Paxton that the lower court rulings on anti-censorship laws passed in Florida and Texas swept too broadly and needed to now analyze each individual application of the laws to see if First Amendment protections may apply. The decision amounted to a significant loss for the tech lobbying group, which sought blanket protection from regulation for all content posted and organized on digital platforms.
The majority ruling, written by Justice Elena Kagan, sent both decisions back to the lower courts, and was joined by Justices Sonia Sotomayor, Brett Kavanaugh, Amy Coney Barrett, and Chief Justice John Roberts. Justices Ketanji Brown Jackson, Clarence Thomas, Samuel Alito and Neil Gorsuch concurred in separate opinions.
“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,” Kagan wrote. “But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment.”
At issue were two laws passed by Republicans in 2021 in response to the perception among conservatives that their views were being censored by big social media platforms like Facebook, YouTube, Twitter (now X) and other sites. The laws aimed to block digital platforms from banning, removing or hiding content based on the political viewpoint expressed.
NetChoice, a lobbying group for the tech industry, sued to overturn the laws by arguing that platforms have a First Amendment right to control the content posted by users. The lobbying group claimed that content moderation decisions made by platforms are no different from the “editorial discretion” exercised by newspapers when they determine what stories or editorials to run and where to place them.
Florida and Texas, however, argued that the platforms should not be viewed as akin to newspapers but rather to other telecommunications platforms like the telephone or telegraph. Like other telecommunications platforms, states should be allowed to regulate digital platforms as common carriers by forbidding them to discriminate in the content they transmit.
Supporters of strict antitrust regulation also sided with Florida and Texas to argue that granting digital platforms First Amendment protections akin to newspapers could severely hamper regulatory action aimed at reining in the 21st century’s wealthiest and most powerful corporations.
