State social media laws aimed at protecting conservative users remain blocked, Supreme Court says

The Supreme Court on Monday declined to settle the major constitutional questions raised in a blockbuster dispute over laws approved in Texas and Florida intended to protect conservative viewpoints on social media, meaning the laws will remain blocked for now while lower courts continue to sort out the constitutional questions involved.

The decision delays a final ruling on whether it is unconstitutional for states to pass laws preventing online platforms from moderating their own websites.

It also reflects some of the difficulty the justices faced in trying to understand the reach of the Florida and Texas laws, which proponents said would help guarantee the freedom of internet users’ speech but that opponents said infringed on platforms’ own First Amendment rights and would make social media an unworkable mess.

Neither of the two appeals courts that produced the cases before the justices looked at the First Amendment issues involved correctly, wrote Justice Elena Kagan in an opinion joined in full by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett.

Kagan’s opinion, however, reserved special criticism for the US 5th Circuit Court of Appeals, saying that in ruling for the state of Texas, that appeals court showed a “serious misunderstanding of First Amendment precedent and principle.”

The cases were viewed as having the potential to affect how millions of Americans get their news and information, as well as whether sites such as Facebook, Instagram, YouTube and TikTok should be able to make their own decisions about how to moderate spam, hate speech and election misinformation. They also offered the court an opportunity to overturn decades of First Amendment precedent, which could have led to sweeping changes for all private speech.

Conflicting views

The state laws passed in 2021 barred online platforms from removing posts that express opinions, such as political content. The Republican governors who signed the laws have said the legislation is needed to keep social media platforms from discriminating against conservatives. The 5th Circuit had previously ruled that Texas’ law was constitutional, while the 11th Circuit had held Florida’s law to be unconstitutional, setting the stage for the Supreme Court to resolve the split.

Attorneys for Texas and Florida, along with industry groups known as NetChoice and the Computer & Communications Industry Association (CCIA), focused substantial attention on how the state laws would affect the content feeds on apps such as Facebook, Instagram and TikTok.

The states argued the laws simply aim to treat social media platforms like utilities, requiring that they carry all content neutrally and without giving preference to one viewpoint over another.

By contrast, NetChoice and its allies described the laws as government interference in decisions by private organizations about what speech to host, characterizing social media platforms as more akin to newspaper publishers than telephone lines.

Other groups argued in friend-of-the-court filings that forcing platforms to treat all content equally would ultimately promote more spam, hate speech, misinformation and adult content in social media feeds, since creators of that content could claim under the state laws that their viewpoints are being discriminated against.

In Monday’s decision, Kagan recognized that the legislation — particularly Texas’ law — “profoundly alters the platforms’ choices about the views they convey” by prohibiting them from labeling, demoting or removing content that violates their terms. That would include pro-Nazi speech, terrorism videos, Islamophobia and antisemitism, election lies and anti-vaccine content, body-shaming and eating disorder material and a much longer list that “could continue for a while,” Kagan wrote.

Whatever speech the laws aim to promote, Kagan added, the legal precedent is clear: the government cannot restrict a private speaker simply because it believes that the speaker’s speech is biased.

“The government cannot get its way just by asserting an interest in better balancing the marketplace of ideas,” she wrote. “In case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm.”

Where do the state laws end?

Still, Kagan wrote, the analysis cannot end there. Even as both sides battled over what future Instagram or TikTok feeds could look like, there is a whole universe of platforms and technologies that the state laws may affect, but which the lower courts failed to consider in assessing whether the laws unconstitutionally restrict speech.

“The laws appear to apply beyond Facebook’s News Feed and its ilk,” Kagan wrote. “But it’s not clear to what extent, if at all, they affect social-media giants’ other services, like direct messaging, or what they have to say about other platforms and functions.”

At oral argument, the justices struggled with whether the state laws, as written, may potentially apply to digital platforms not generally considered to be social media, including Uber, Venmo and Etsy. The possibility of vast unintended consequences triggered serious concerns from the court’s conservatives and liberals alike.

Because the lower courts did not grapple with that question, it is premature for the Supreme Court to weigh in on the state laws as a matter of principle, Kagan said.

In a separate concurrence, Barrett chided the parties for effectively asking the court to “bite off more than it can chew.” Having the court settle gigantic constitutional questions in a way that would apply “in one fell swoop to the entire social-media universe” is far from straightforward, she said.

In her own concurrence, Justice Ketanji Brown Jackson praised the 11th Circuit while also taking a swipe at the 5th Circuit, which has raised eyebrows among some legal scholars following some of that court’s recent opinions.

“I agree with Justice Barrett that the Eleventh Circuit at least fairly stated our First Amendment precedent, whereas the Fifth Circuit did not,” Jackson wrote.

Some of the court’s conservatives, however, said they could agree only with the practical outcome of the ruling and little else.

“Although the only question the Court must decide today is whether NetChoice showed that the Florida and Texas laws are facially unconstitutional, much of the majority opinion addresses a different question: whether the Texas law’s content-moderation provisions are constitutional as applied to two features of two platforms — Facebook’s News Feed and YouTube’s homepage,” wrote Justice Samuel Alito, in a concurrence joined by Justices Clarence Thomas and Neil Gorsuch.

The majority opinion gave short shrift to state government arguments that social media platforms are more like telephone companies than publishers or cable companies, Alito added.

Reactions and impact

In a statement following the court’s ruling, NetChoice claimed victory.

“Today’s ruling from the Supreme Court is a victory for First Amendment rights online,” said Chris Marchese, director of the NetChoice Litigation Center. “As our cases head back to the lower courts for consideration, the Supreme Court agreed with all our First Amendment arguments.”

Texas Attorney General Ken Paxton said in statement that “Big Tech censorship is one of the biggest threats to free public discourse and election integrity. Today, SCOTUS has sent this case back to the lower courts. I will keep fighting for our law that protects Texans’ voices. No American should be silenced by Big Tech oligarchs.”

In a post on X (formerly Twitter), Florida Attorney General Ashley Moody said her office was “pleased that SCOTUS agreed with Florida and rejected the lower court’s flawed reasoning.”

The court’s procedural ruling means that the legal battle is far from over, said Eric Goldman, a law professor at Santa Clara University focused on internet law.

“While the decision today doesn’t definitively resolve the future of the Florida and Texas laws, a majority bloc of justices — led by Justice Kagan — articulated some important principles that represent a major victory for the First Amendment freedoms of social media services,” Goldman said. “Most importantly, the majority emphatically rejected the notion that states can dictate and override private content moderation decisions, treating Internet services as more like newspaper publishers than telephony or other common carriers.”

“Given the majority opinion’s guidance, it is likely that large portions, if not all, of the Florida and Texas social media censorship laws will ultimately fail,” Goldman added.

Paul Barrett, deputy director of the Stern Center for Business and Human Rights at New York University, agreed.

“This aspect of the opinion will enable social media companies to continue to remove and/or down-rank harmful content like hate speech, incitement to political intimidation and violence, and disinformation designed to undermine elections and public health policies,” Barrett said. “Under this ruling, states like Texas and Florida do not have the authority to dictate how social media platforms filter, arrange, or label content that they host.”

Still, Barrett said, the way the opinion is written “leaves open room for governments at the state and federal levels to craft narrowly drawn regulations” forcing online platforms to be more transparent with users about their content moderation decisions.

This story has been updated.

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