The Supreme Court dealt a blow to conservative critics of social media companies, particularly by suggesting that key parts of the Texas law may not withstand constitutional scrutiny.
Justice Elena Kagan wrote that social media sites like Facebook and YouTube have a First Amendment right to curate and manage the posts in users’ feeds.
The decision was unanimous for procedural reasons, but the complexity of the case led to five separate opinions. Chief Justice John G. Roberts Jr., Justices Sonia Sotomayor, Brett M. Kavanaugh, and Amy Coney Barrett joined Justice Kagan’s majority opinion, with Justice Ketanji Brown Jackson joining in part.
“These cases present a complex conflict between two new state laws and the First Amendment rights of several major social media platforms,” Judge Jackson wrote in his concurring opinion.
“Not all actions that social media companies might take would qualify as expression protected by the First Amendment,” she wrote, “but also not all putative restrictions on the operations of such companies would withstand the force of First Amendment protections. Beyond these broadest statements, it is difficult to say much more at this point.”
The cases tested whether state governments or tech companies have the authority to set rules about what content can be posted on popular social networks that have played an increasingly central role in political debate and U.S. elections.
Republican state leaders enacted the law in 2021 in response to growing concerns among conservatives that social media giants are illegally censoring conservative voices. Those accusations reached a new level after companies like Facebook and Twitter suspended President Donald Trump’s account following the Jan. 6, 2021, attack on the U.S. Capitol.
The tech companies, represented by the trade group NetChoice, asked the court to block the Texas and Florida laws, arguing that the content moderation measures are unconstitutional and violate the First Amendment by allowing the government to exert excessive control over online speech published on private platforms.
Because social networks play such a crucial role in public discourse, the court’s final decision on the issue is likely to have ripples beyond Silicon Valley. The ruling is expected to influence policymakers in Congress and state legislatures across the country as they seek to enact new laws to regulate social media and misinformation.
The debate over the Texas and Florida laws has focused on how the laws apply to users’ public posts on major social media platforms such as Facebook and YouTube. The Supreme Court on Monday vacated two lower court decisions, ruling that those courts had not properly considered a wide range of other ways the law could affect online speech.
NetChoice is State Law It was struck down in its entirety as unconstitutional on its face, but as Kagan wrote in the majority opinion, this approach “comes at a cost” because the Court has “made it difficult to prevail on its face challenges.”
In that case, the majority ruling stated that the technology industry had a “significant” The application would be unconstitutional.
“The law appears to apply to more than just Facebook’s News Feed and similar services, but it is unclear to what extent it would affect the social media giant’s other services, such as direct messaging, or what it would say about other platforms and features,” Kagan wrote.
There were some signs the court was concerned about the issue during oral arguments, as the justices repeatedly pressed both sides to be more specific about which online platforms were being targeted. Influenced by They also wanted to know what kinds of moderation activities should count as protected speech under the First Amendment — whether they might be unconstitutional when applied to Facebook or YouTube, for example, but constitutional when applied to platforms like Uber, Venmo, or Etsy that are not primarily social media companies.
NetChoice and the Computer and Communications Industry Association, another tech group that challenged the state law, celebrated the decision as a victory for the First Amendment online. They said they were encouraged by the justices’ ruling that the First Amendment protects companies when they “collect the speech of others and assemble it into a unique expressive product.”
CCIA President Matt Schluss said in a statement that as the case returns to lower courts, the companies will continue to advocate for tech companies’ rights to determine what speech should be allowed on their platforms.
“It is encouraging that the Supreme Court majority made clear that the government cannot tilt the public debate in its favor,” he said in a statement.
The attorneys general of Texas and Florida posted on X that they would continue to fight for protection. State Law.
“Americans should not be silenced by the Big Tech oligarchs.” I have written Texas Attorney General Ken Paxton.
Tech industry groups, national security officials and researchers say limiting companies’ ability to remove content could allow election misinformation, extremism and other harmful activity to flourish online. Florida and Texas, however, argue that a small number of social media companies wield great control over modern political discourse and need regulation to prevent them from discriminating or silencing certain voices.
The two cases reached the Supreme Court after being appealed by the U.S. Court of Appeals for the Fourth Circuit. The Fifth Circuit Court of Appeals upheld the Texas law in 2022. The decision marked a dissenting opinion from the Eleventh Circuit Court of Appeals, which had already struck down key provisions of Florida’s law.
The appeals court judges who considered the Florida and Texas laws were all nominated by Republican presidents. Judge Kevin Newsom, a Trump appointee on the 11th Circuit, wrote a unanimous opinion blocking the Florida law. Another Trump appointee, Andrew Oldham of the 5th Circuit, wrote a dissenting opinion upholding the Texas law.
Over the past two terms, the Supreme Court has grappled with regulating social media, which has become an increasingly influential part of American politics. In the absence of new federal laws regulating the tech industry, lobbyists and advocates have looked to the court to shape the future of free speech online.
In her opinion Monday, Kagan wrote that Congress and government agencies are “generally in a better position” than the courts to respond to the challenges posed by social media.
“But courts still have a necessary role to play in protecting the expressive rights of these groups, just as they have historically protected the rights of traditional media,” she wrote. “To the extent that social media platforms create expressive products, they enjoy First Amendment protection.”
The Supreme Court has given detailed guidance to lower courts on how the First Amendment should apply to content moderation decisions on social media, with Justice Kagan writing that states cannot interfere with companies’ decisions to “advance their own vision of ideological balance.”
“Of the various dangers to freedom of expression, none is greater than allowing governments to alter private citizens’ speech in order to achieve their own notion of speech nirvana,” she wrote.
The justices argued that lower courts should treat social media companies like newspapers, which can make editorial decisions about content on their platforms. The ruling was a rebuke to states that have argued that the platforms should be regulated like phone companies. You need to take all your content with you.
As the litigation continues, legal experts The high court’s decision bodes well for tech litigation.
“It is likely that most, if not all, of Florida and Texas’ social media censorship laws will ultimately fail,” Eric Goldman, a professor at Santa Clara University School of Law, said in an email.
In the absence of a federal social media law, states have written their own tech laws to address a range of alleged harms, including to children and user privacy. Technology critics have warned that overly broad rulings on the Florida and Texas laws could jeopardize various efforts to curb the industry’s power. The industry has increasingly used the First Amendment to challenge various laws in court.
The Supreme Court left open the possibility of regulating tech platforms in a relatively narrow ruling, in which the justices suggested the government could enforce competition laws against online companies. To maintain a “well-functioning realm of expression.”
“Social media companies sought a sweeping ruling that would put their business models above the reach of regulation,” said Jameel Jaffer, executive director of the Knight First Amendment Institute. “States sought a ruling that would give them enormous power to manipulate and control public discourse online. The Supreme Court was absolutely right to reject these requests, both of which would do real harm to our democracy.”
So far, the Supreme Court has been relatively cautious about setting broad precedents in social media-related cases, handing down procedural decisions that leave unresolved some of the biggest questions about the future of free speech online.
The Supreme Court last week rejected a conservative attempt to limit the ability of White House officials and other federal government employees to pressure social media companies to remove posts, but legal experts said the court missed an important opportunity to give tech companies and the federal government clear guidance on what types of communications are appropriate under the First Amendment.
The Supreme Court last year avoided a request to limit provisions of federal law that protect social media companies from lawsuits over offensive, harmful or violent content posted by users.
Trim Jacob Cantor, a San Francisco lawyer who specializes in technology-related issues, said in a statement that Monday’s ruling does just that.
“The Supreme Court’s decisions in the two NetChoice cases did not have the big impact that some expected, and it will likely take a lot more legal work in lower courts, possibly even more, before we see a clearer decision on how states can regulate activity and expression on the platforms,” Cantor said.
Ann E. Marimow contributed to this report.
