U.S. Supreme Court Suspicious of State Social Media Regulation
9.26.2024
The U.S. Supreme Court this summer stymied significant state regulation of social media platforms, stating that content moderation rules raised substantial concerns under the First Amendment of the Constitution. The consolidated case is called NetChoice, LLC v. Paxton. Ken Paxton is the attorney general of Texas, and Net Choice is a public policy advocacy organization that litigates for free speech causes.
By a unanimous vote, 9-0, the court remanded the cases, including Moody v. Net Choice, LLC, to the lower courts, stating that neither the Fifth Circuit Court of Appeals nor the Eleventh Circuit Appeal Court “conducted a proper analysis of the facial First Amendment challenges to the Florida and Texas laws regulating large Internet platforms,” like Facebook and X, formerly known as Twitter.
The court vacated these lower court judgments. Florida and Texas had passed the laws at issue in the two cases in the run-up to and aftermath of the November 2020 election in which social media censored news of Hunter Biden’s laptop and questions about voting integrity in several battleground states, where the race was decided by around 40,000 votes. State legislators in both jurisdictions opined that social media companies were censoring users, especially those with conservative beliefs.
These laws limited the choices that social media companies may make about which user-generated content is presented to the public. The laws also contain language that requires social media platforms to provide explanations to individual users regarding the platforms’ editorial choices, raising free speech considerations.
First Amendment Analysis
“There are two ways to challenge a law under the First Amendment,” write Megan Iorio, Schuyler Standley and Tom McBrien of the Electronic Privacy Information Center, a think tank in Washington D.C. “A facial challenge is aimed at striking down a law in its entirety. An as-applied challenge seeks to block enforcement of a law — or parts of a law — against specific persons in specific circumstances. First Amendment challenges can be brought before or after the law has been enforced.”
Justice Elena Kagan wrote the opinion of the court. Chief Justice John G. Robert, Jr. and Justices Amy Coney Barrett, Brett Kavanaugh and Sonia Sotomayor joined, and in which Justice Ketanji Brown Jackson joined for Parts I, II, and III-A. Justice Barrett also filed a concurring opinion. Justice Jackson filed an opinion concurring, in part, and concurring in the judgment. Justice Clarence Thomas produced an opinion concurring in the judgment, while Justice Samuel Alito filed an opinion concurring in the judgment, which Justices Thomas and Neil M. Gorsuch joined.
The Eleventh Circuit barred Florida from enforcing most of the law, while the Fifth Circuit upheld the Texas law. Justice Kagan’s 31-page opinion described the “dizzying transformation” created by the web. “Social-media platforms,” she wrote, “have gone from unheard-of to inescapable.” And although legislatures and government agencies are best suited to regulate those platforms, she continued, there is still a role for courts to play “in protecting those entities’ rights of speech, as courts have historically protected traditional media’s rights.”
Comparing social media platforms to conventional journalism, Justice Kagan wrote that social media platforms “are engaged in expression.” She said, moreover, the Supreme Court has “repeatedly held that laws curtailing” the editorial choices of traditional media “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.”
Justice Kagan said that the parties in this case had challenged the laws, so the litigation in the lower courts focused primarily on the laws as if they “applied only to the curated feeds offered by the largest and most paradigmatic social media platforms.”
When the justices heard oral arguments in the case that Justice Kagan stated, it became clear that “the laws might apply to, and differently affect, other kinds of websites.” This could include customer reviews on Etsy or email filters that Gmail provides. Since the analysis of those questions might affect a court’s opinion as to whether the law is constitutional, Justice Kagan said, the cases should return to the lower courts for another review.
Justice Kagan gave an outline of the legal principles that the lower courts should use in their new analysis. She said that the need for such guidance was “especially stark” for the Fifth Circuit so that it did not reiterate its earlier conclusion that the Texas law does not violate the First Amendment, as that would “rest on a serious misunderstanding of First Amendment precedent and principle.”
Facebook’s ‘Editorial Judgment’: Protected Expressive Activity
The Knight First Amendment Institute at Columbia University in New York filed an amicus brief in the case. The brief appears to be reflected, in part, in the court’s opinion. This brief opines that social media platforms’ content-moderation judgments are protected by the First Amendment as they are similar to the exercise of editorial judgment. In a proper interpretation of the First Amendment, the brief argued, the court should hold both states’ “must-carry” provisions unconstitutional because they override platforms’ editorial judgment and cannot satisfy even intermediate scrutiny.
Jameel Jaffer, executive director of the Knight First Amendment Institute, commented, when the opinion was published online: “This is a careful and considered ruling that decisively rejects the broadest arguments made by the states and the social media platforms. It properly recognizes that platforms are ‘editors’ under the First Amendment, but it also dismisses, for good reasons, the argument that regulation in this sphere is categorically unconstitutional. The social media companies asked for a sweeping ruling that would have placed their business models beyond the reach of regulation. 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.”
Justice Kagan in her opinion held that it is already clear that if the Fifth Circuit continues with the same reasoning that it adopted in the earlier proceedings, at least part of its opinion would be incorrect. “At least on the current record,” she said, “the editorial judgments influencing the content of” Facebook’s NewsFeed and YouTube’s homepage are “protected expressive activity,” and “Texas may not interfere with those judgments simply because it would prefer a mix of messages.”
Gene J. Koprowski is a member of NYSBA’s Communications and Publications Committee, an arbitrator with the Financial Industry Regulatory Authority in Washington D.C. and an award-winning journalist who spent 35 years working for United Press International and other leading media.
Endnotes:
- Netchoice v. Paxton, No.142 S. Ct. 1715 (2022) (Supreme Court)
- Moody v. Netchoice LLC, No. 144 S. Ct. 2383 (2024) (Supreme Court).
