Supreme Court Sends Social Media Laws Back to Lower Courts

(Bloomberg) -- The US Supreme Court sent a pair of cases about state laws that restrict social media content curation back to lower courts, ruling there isn’t enough information about how the laws apply to Meta Platforms Inc., Alphabet Inc.’s Google and other major tech companies.

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Voting 9-0, the court said the Republican-backed Texas and Florida measures require further analysis, declining to decide whether they’re constitutional. The court did find that the lower courts failed to properly assess the First Amendment issues central to the dispute — though the case elicited five different opinions from the justices.

The ruling is a partial victory for trade groups representing the tech companies that argue they have the right to moderate their sites as they see fit, in the run-up to the November election and beyond.

Both laws seek to prevent the companies from removing certain kinds of political speech, a response to claims that platforms like Meta’s Facebook and Google’s YouTube censor conservatives. The court said the states shouldn’t curtail the editorial decisions of the social media companies.

‘Vision’ of Balance

“A state may not interfere with private actors’ speech to advance its own vision of ideological balance,” Justice Elena Kagan wrote for the court. She compared the social media platforms’ curation to editors shaping news coverage.

“The principle does not change because the curated compilation has gone from the physical to the virtual world,” she wrote.

Despite the unanimous decision, a raft of concurring opinions in the case exposed stark divisions among the justices over whether the laws might violate the First Amendment’s free speech protections — and signaled how the court might split on such cases in the future.

Chief Justice John Roberts and Justices Brett Kavanaugh, Amy Coney Barrett and Sonia Sotomayor joined Kagan’s opinion, while Justice Ketanji Brown Jackson joined it in part. Justices Samuel Alito and Clarence Thomas and Barrett filed concurring opinions with some disagreements over the details of the cases.

And both Thomas and Alito lambasted the others for making what they said were sweeping statements about the First Amendment’s application to social media content curation.

Deplatforming Trump

The laws, backed by Florida Governor Ron DeSantis and Texas Governor Greg Abbott, were enacted in response to decisions by some platforms to oust former President Donald Trump from their sites after the Jan. 6, 2021, Capitol riot. The court in particular challenged the Texas law, which bars large platforms from discriminating based on “viewpoint.” Kagan wrote that the law is “unlikely to withstand First Amendment scrutiny.”

“This court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression,” she wrote.

The Florida law includes a dozen major provisions, including a requirement that platforms provide a “thorough rationale” for each content moderation decision. The law says they can’t deplatform political candidates or use an algorithm to limit the visibility of their posts or posts about them. Platforms also can’t censor or ban journalists based on what they say online.

The case arrived at the high court even as social media companies were pulling back from their efforts to combat political falsehoods online. The shift has been especially dramatic at X, formerly Twitter, which owner Elon Musk has said he intends to make into a bastion of free speech.

Onerous Rules

The trade groups – NetChoice LLC and the Computer & Communications Industry Association – said the laws would impose onerous and confusing restrictions. They argued that the Texas measure would unconstitutionally bar platforms from removing neo-Nazi and Ku Klux Klan screeds or Russian propaganda about its invasion of Ukraine.

“Today’s ruling from the Supreme Court is a victory for First Amendment rights online,” said Chris Marchese, director of Netchoice’s litigation center.

But two of the conservative justices in particular, Alito and Thomas, criticized the court for declaring that the First Amendment likely protects Facebook’s right to curate its News Feed and YouTube’s right to curate its video-sharing platform. Thomas has previously said the social media companies should be subject to stricter government scrutiny because they have become powerful communication tools with the power to restrict certain viewpoints.

In an opinion supported by Thomas and Justice Neil Gorsuch, Alito wrote that the Kagan opinion “unreflectively assumes the truth of NetChoice’s unsupported assertion that social-media platforms — which use secret algorithms to review and moderate an almost unimaginable quantity of data today — are just as expressive as the newspaper editors who marked up typescripts in blue pencil 50 years ago.”

Danger of ‘Embarrassments’

When faced “with the application of a constitutional requirement to new technology, we should proceed with caution,” he wrote. “Premature resolution of such questions creates the risk of decisions that will quickly turn into embarrassments.”

All the justices criticized the tech companies’ decision to bring a “facial” challenge, an approach that normally requires a litigant to show that all aspects of the law are unconstitutional. Barrett, in her concurrence, wrote that it was difficult to determine how the laws will apply to services like Uber and Gmail.

In his concurrence, Thomas took issue with the facial challenge’s targeting the laws’ constitutionality rather than simply how the laws regulate the sites. Such challenges force courts “to take a maximalist approach,” he wrote.

The Atlanta-based 11th US Circuit Court of Appeals had blocked most of Florida’s law as probably violating the First Amendment. The New Orleans-based 5th Circuit upheld the Texas law but left the measure on hold to allow time for an appeal to the Supreme Court.

The Florida case is Moody v. NetChoice, 22-277. The Texas case is NetChoice v. Paxton, 22-555.

--With assistance from Erik Larson.

(Updates with fresh details and context throughout, starting in second paragraph.)

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