States can't regulate social media platforms to achieve 'speech nirvana,' Supreme Court says
The U.S. Supreme Court on Monday favored the First Amendment rights of social media companies to moderate content in a decision that sent two cases back to lower courts for more analysis. (Image from Shutterstock)
The U.S. Supreme Court on Monday favored the First Amendment rights of social media companies to moderate content in a decision that sent two cases back to lower courts for more analysis.
Federal appeals courts failed to conduct a proper analysis of social media regulations enacted by two states, the Supreme Court said.
Justice Elena Kagan wrote the opinion, joined in full by four justices and in part by Justice Ketanji Brown Jackson.
At issue was whether Florida and Texas can prohibit large social media companies from banning political candidates or restricting content based on viewpoint. The states acted following allegations that the platforms were restricting the expression of conservative views.
Although the Supreme Court remanded the case, Kagan went further and provided guidance to the courts below.
“A state may not interfere with private actors’ speech to advance its own vision of ideological balance,” Kagan wrote. “On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”
The Texas law generally bans social media companies from restricting posts based on the viewpoint of the speaker. The law also requires social media companies to disclose how they moderate and promote content and to publish reports disclosing how often they restricted content.
The Florida law prevents social media companies from banning political candidates, deprioritizing political messages or censoring content by journalistic enterprises.
Both laws require platforms to provide an explanation to any user if they remove or challenge a post.
The 11th U.S. Circuit Court of Appeals at Atlanta had ruled that the Florida law was likely unconstitutional under the First Amendment. The 5th Circuit at New Orleans found that the Texas law was likely constitutional.
Kagan said the 5th Circuit wrongly declared that content moderation is not speech, and that if it is speech, Texas’ interest in balancing speech did not violate the First Amendment.
Focusing on the Texas law, Kagan said it would prevent social media companies from disfavoring a range of posts, including those supporting Nazi ideology, advocating for terrorism, glorifying rape and encouraging teenage suicide.
The Texas law is unlikely to withstand First Amendment scrutiny, Kagan said. The law “profoundly alters the platforms’ choices about the views they will, and will not, convey. And we have time and again held that type of regulation to interfere with protected speech.”
Kagan added that nothing in her opinion addresses other applications of the Texas law, “which may or may not share” First Amendment problems.
Two trade associations, NetChoice and the Computer & Communications Industry Association, had challenged the laws on their face, rather than as applied in certain instances. To succeed, the groups would have to show that a challenged law “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.”
Neither the parties nor the federal appeals courts focused on that issue, Kagan said.
“There is much work to do below,” Kagan wrote in remanding the cases for further analysis.
Justice Samuel Alito concurred in the judgment, joined by Justices Clarence Thomas and Neil Gorsuch.
Alito said the Supreme Court’s opinion remanding the cases was narrow, and “everything else in the opinion of the court is nonbinding dicta.”
In a separate concurrence, Thomas said the facial-challenge doctrine has developed with “one doctrinal mistake leading to another,” and it “is high time” for the Supreme Court to reexamine the doctrine.
The cases are Moody v. NetChoice and NetChoice v. Paxton.
Hat tip to SCOTUSblog, which had early coverage of the decision.
See also:
Supreme Court to consider laws that block social media from removing certain content and users
Chemerinsky: Supreme Court will hear some of its biggest cases of the term this month
Texas may enforce law banning social media from blocking users based on viewpoints, 5th Circuit says
Florida law banning social media censorship is likely unconstitutional, 11th Circuit says
Texas may enforce law banning social media from blocking users based on viewpoints, 5th Circuit says
