Supreme Court declines to rule on tech platforms’ free speech rights

WASHINGTON — The Supreme Court sidestepped a definitive resolution on Monday in a pair of cases challenging state laws aimed at curbing the power of social media companies to moderate content. The ruling left in limbo an effort by Republicans who had promoted the legislation as a remedy to what they say is a bias against conservatives.

It was the most recent instance of the Supreme Court considering — and then dodging — a major decision on the parameters of speech on social media platforms.

The state laws differ in their details. Florida’s prevents the platforms from permanently barring candidates for political office in the state, while Texas’ prohibits the platforms from removing any content based on a user’s viewpoint.

The justices unanimously agreed to return the cases to lower courts for analysis. Justice Elena Kagan, writing for the majority, noted that neither lower appeals courts had properly analyzed the First Amendment challenges to the Florida and Texas laws.

“In sum, there is much work to do below on both these cases,” Kagan wrote, adding, “But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”

Under the narrow ruling, the state laws remain intact, but lower court injunctions also remain in place, meaning both laws continue to be paused.

Although the justices voted 9-0 to return the cases to the lower courts, they splintered on the reasoning, with several writing separate concurrences to lay out their positions. Kagan was joined by Chief Justice John Roberts, along with Justices Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett. Justice Ketanji Brown Jackson joined, in part.

In a separate concurring opinion, Barrett hinted at how lower courts might analyze the cases.

Barrett wrote that the federal appeals court that examined the Florida case showed an “understanding of the First Amendment’s protection of editorial discretion” that “was generally correct,” while the appeals court that examined the Texas case did not.

A unanimous three-judge panel of the 11th U.S. Circuit Court of Appeals had largely upheld a preliminary injunction that temporarily blocked Florida’s law.

A divided three-judge panel of the 5th U.S. Circuit Court of Appeals, by contrast, had reversed a lower court’s order blocking the Texas law.

That the justices avoided making any major statement on the issue allowed both sides to declare victory.

Chris Marchese, the director of the litigation center at NetChoice, one of the trade groups that challenged the laws, said in a statement that the “Supreme Court agreed with all our First Amendment arguments.”

Ashley Moody, the Florida attorney general, suggested on social media that the outcome was to the state’s advantage. “While there are aspects of the decision we disagree with, we look forward to continuing to defend state law,” she said.

The Biden administration had supported the social media companies in both cases, Moody v. NetChoice, No. 22-277, and NetChoice v. Paxton, No. 22-555.

In the majority opinion, Kagan remarked on how quickly the internet has evolved. Less than 30 years ago, she wrote, the justices still felt the need to define the internet in their opinions, describing it at the time as “an international network of interconnected computers.”

Today, she wrote, “Facebook and YouTube alone have over two billion users each.”

She described a flood of content that has prompted major platforms to “cull and organize” posts. The platforms sometimes remove messages entirely or add warnings or labels, often in accordance with community standards and guidelines that help the sites determine how to treat a variety of content.

Because such sites can “create unparalleled opportunities and unprecedented dangers,” she added, it is no surprise that lawmakers and government agencies struggle with how and whether to regulate them.

Government entities are typically better positioned to respond to these challenges, Kagan noted, but courts still play an integral role “in protecting those entities’ rights of speech, as courts have historically protected traditional media’s rights.”

The laws at issue in these cases, statutes enacted in 2021 by Florida and Texas lawmakers, differ in what companies they cover and what activities they limit. However, Kagan wrote, both restrict platforms’ choices about what user-generated content will be shown to the public. Both laws also require platforms to give reasons for their choices in moderating content.

Kagan then provided a clue about how a majority of the justices may be thinking about how to apply the First Amendment to these types of laws.

Although it was too early for the court to come to conclusions in the cases, she wrote, the underlying record suggested that some platforms, at least some of the time, were engaged in expression.

“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, produce their own distinctive compilations of expression.”

She added that although social media is a newer format, “the essence” is familiar. She analogized the platforms to traditional publishers and editors who select and shape others’ expressions.

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